Industrial Relations Commission of New South Wales CITATION : Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 APPLICANTS Paul Andrew Burrows PARTIES : Rick Lawrence Andrew Giardini RESPONDENT: Commissioner of Police FILE NUMBER: IRC NO 5678 & 5862 of 2000 CORAM: Boland J CATCHWORDS : Removal of police officers - Review of orders - Whether removal was harsh, unreasonable or unjust - Misuse by police officers of Police Service Electronic Memo System - Sending and receipt of pornographic material - Removal found to be harsh, unreasonable and unjust - Applicants reinstated from date of decision. Classification (Publications Films and Computer Games) Act 1995 (Cth) Classification (Publications Films and Computer Games) Enforcement Act 1995 (NSW) LEGISLATION CITED : Crimes Act 1900 (NSW) Industrial Relations Act 1996 Police Service Act 1990 Public Sector Management Act 1988 Australian Competition & Consumer Commission v Daniels Corporation International Pty Ltd [2001] FCA 244 (16 March 2001) Bigg v NSW Police Service (No2) (1998) 80 IR 434 Byrne v Australian Airlines Limited (1995) 185 CLR 410, 61 IR 32 Federated Municipal & Shire Council Employees' Union of Australia, NSW Division v Liverpool City Council (1988) 25 IR 246 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 In the matter of an Appeal No. 191 of 2001 by Peter Gavrilovski against a decision of the Attorney General's Department (unreported, Government and Related Employees Appeal Tribunal, 29 August 2001) Newton v NSW Police Service (1999) 87 IR 66 CASES CITED : NSW Public Service Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46 Oswald v NSW Police Service (1999) 90 IR 42 Owens v New South Wales Police Service (1998) 87 IR 1 Pastrycooks, Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 1) (1990) 35 IR 51 R v Anderson, ex parte IPEC-Air Pty Limited (1965) 113 CLR 177 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 08/06/2001; 08/07/2001; 08/13/2001; 08/14/2001; 08/15/2001; 08/16/2001 DATE OF JUDGMENT: 12/14/2001 APPLICANT Mr B G Docking of counsel Solicitor: Mr L Nicholls Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT Mr J J Graves SC with Mr G M Galluzzo of counsel Solicitor: Mr E Lynch Court & Legal Services NSW Police Service JUDGMENT: - 105 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J Friday 14 December 2001 Matter No IRC 5678 of 2000 BURROWS v COMMISSIONER OF POLICE Application for review of order pursuant to s181E of the Police Service Act 1990 Matter No IRC 5862 of 2000 GIARDINI v COMMISSIONER OF POLICE Application for review of order pursuant to s181E of the Police Service Act 1990 Decision PART A. INTRODUCTION 1 These are applications for a review of orders made by the Commissioner of Police ("the Commissioner") pursuant to s 181D(1) of the Police Service Act 1990 ("the Act"). The first application is by Paul Andrew Burrows in relation to an order made on 25 October 2000 removing him from the Police Service of New South Wales ("the Police Service"). The second application is by Rick Lawrence Andrew Giardini in relation to an order made on 27 November 2000 also removing him from the Police Service. 2 Mr Burrows was removed because of conduct involving the alleged reception and dissemination of offensive pornographic material on the Police Service Electronic Memo System. Mr Giardini was removed because of conduct involving the alleged introduction and dissemination of offensive pornographic material on the same System. 3 Section 181E(1) of the Act provides that a police officer who is removed from the Police Service may apply to the Industrial Relations Commission of New South Wales ("the Commission") for a review of the order made under s 181D on the ground that the removal is harsh, unreasonable or unjust. The application by Mr Burrows sought an order that he be reinstated to the Police Service. Mr Burrows further sought that, in the event that the Commission considered "it would not be practicable for the applicant to be reinstated", he should be paid an amount of compensation. Mr Giardini's application sought the same relief as Mr Burrows. 4 The grounds relied upon by Mr Burrows in his application were that: The Applicant contends there is no reason why the Commissioner of Police should not have confidence in the Applicant continuing to remain in the Police Service. The Applicant contends that his removal from the Police Service is harsh, unreasonable and unjust. 5 The grounds relied upon by Mr Giardini in his application were that: The Applicant contends that his dismissal from the Police Service is harsh, unreasonable or unjust. The Applicant contends that he was denied procedural fairness by the manner in which he was removed from the Police Service. The Applicant contends that the Commissioner of Police failed to give adequate weight to the Applicant's excellent record as a member of the New South Wales Police Service and the Applicant's conduct did not warrant his removal from the Police Service. The statutory process 6 It is helpful at the outset to summarise the process under the Act in relation to the removal of police officers in whom the Commissioner does not have confidence and the process for review by the Commission of the Police Commissioner's decision to remove a police officer. 7 Section 181D of the Act relevantly provides that: · The Commissioner may, by order in writing, remove a police officer 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 (s 181D(1)). · Before making an order the Commissioner: - 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 (s 181D(3)(a)), and - Must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action (s 181D(3)(b)), and - Must take into consideration any written submissions received from the police officer during that period (s 181D(3)(c)). · Any order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service (s 181D(4)). · The removal takes effect when the order is made (s 181D(5)). · Removal of a police officer has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service (s 181D(8)). 8 Section 181E of the Act relevantly provides that: · A police officer who is removed from the Police Service by an order of the Commissioner may apply to the Industrial Relations Commission (constituted by a judicial member) for a review of the order on the ground that the removal is harsh, unreasonable or unjust (s 181E(1)). · Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer as referred to in s 181D(1) (s 181E(3)). 9 Section 181F relevantly provides: · In conducting a review the Commission must proceed as follows (s 181F(1)): - Firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, - Secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, - Thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. · The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust (s 181F(2)). · 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 (s 181F(3)): - The interests of the applicant, and - The public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to s 181D(1)). 10 Section 181G provides that, with some stated exceptions, the provisions of the Industrial Relations Act 1996 ("the IR Act") apply to any application for review in the same way as those provisions apply to an application brought under Pt 6 of Ch 2 – Unfair Dismissals of the IR Act. 11 Section 181H provides that neither the Commissioner nor any member of the Commissioner's Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under s 181D unless the Commission gives leave (s 181H(1)) and the Commission may give leave only if it considers that extraordinary grounds exist that warrant leave being given (s 181H(2)). 12 Section 89 of the IR Act gives power to the Commission to order: · Reinstatement on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed (s 89(1)). · Re-employment if the Commission considers that it would be impracticable to reinstate the applicant. Re-employment is to be in another position that the employer has available and that, in the Commission's opinion, is suitable (s 89(2)). · Compensation if the Commission considers that it would be impracticable to maker an order for reinstatement or re-employment. The amount of compensation is not to exceed the amount of remuneration of the applicant during the period of six months immediately before being dismissed (s 89(5)). 13 Section 89(6) of the IR Act provides that when assessing compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. Section 89(8) provides that an order under the section may be made on such terms and conditions as the Commission determines. PART B. BURROWS – BACKGROUND FACTS, EVIDENCE AND SUBMISSIONS 14 The notice to Mr Burrows pursuant to s 181D(3)(a) of the Act ("the Notice") was in the following terms: Notice under Section 181D(3)(a) of the Police Service Act 1990 The Commissioner's Confidence provisions allow for the Commissioner of Police to remove an officer where he has lost confidence in their suitability to remain a Police officer. This is determined by the Commissioner on the basis of one or more of the following criteria: conduct, integrity, performance or competence. In accordance with Section 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I do not have confidence in your suitability to continue as a police officer taking into account the criteria of your conduct and on the following grounds: Between 26 March 1999 and 28 November 1999, you received and disseminated offensive and refused classification material to other members of the Service via the Police Service Memo System, contrary to Service guidelines. Between 26 March 1999 and 28 November 1999, you did publish an indecent article in breach of section 578C(2) of the Crimes Act 1900. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under Section 181D of the Police Service Act 1990. In accordance with section 181D(3)(b) of the Police Service Act, 1900, prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. Attached is a copy of the submission provided to me in this matter. Your response should be delivered to my Office, Level 18, Police Headquarters, 14-24 College Street, Darlinghurst 2010. P J RYAN Commissioner of Police Date: 19.7.2000 15 On 5 September 2000 Mr Burrows provided a 13 page response to the Commissioner's Notice. The response addressed the following pertinent matters: 1) A request for a copy of any other documentation that was referred to, studied, examined or considered by the Commissioner during the s 181D process and any other information that was used or provided to the Commissioner or to any other person who was involved in the s 181D process apart from the Notice and documents called "Commissioner's Confidence Submission" that had already been provided to Mr Burrows. 2) The applicant's personal background and present situation. This included the fact that at the time of his removal the applicant was 31 years' old and married with one young child. The applicant commenced his police training in October 1989 and was attested in April 1990. At the time of his removal the applicant had attained the substantive rank of senior constable. The applicant had completed a number of service courses and was an Operational member of the Southern Rivers Protection Support Group ("SPSU"). 3) The applicant acknowledged that he engaged in receiving and disseminating emails and email attachments "of a sexual nature" over the Police Service Memo System. The applicant also acknowledged that he became involved in co-authoring a text memo with a fellow officer, David Blackbourne. This involved messages going back and forth between the two officers to see who could outdo the other in terms of insults and vulgarity. The letter "snowballed" into nine pages of text message. The applicant said that the content of the messages did not offend him, that he "got a laugh out of reading it at the time, but it has now been taken out of context." 4) The applicant agreed he was responsible for sending a message titled "IA Alert" to Blackbourne. This, he said was a result of speaking with another officer who informed him that his memo access had been frozen and when the other officer made inquiries in relation to it he was informed by Internal Affairs (IA) that an image he had sent was being investigated. The applicant said that he did not believe the investigation involved himself. He said, "I then sent an email explaining the same to David BLACKBOURNE. I included my suspicions about a particular image that I had received from him and I thought he might know about this". 5) The applicant referred to comments made by a Police Psychologist about his conduct and found "it hard to accept that an accurate analysis about me can be made on the basis of the reading of a fictitious, nonsensical letter [the text memo]". The applicant referred to the results of a psychological test that he underwent at the State Protection Support Unit's annual camp in 1999. According to the applicant the test indicated that he was "a well balanced person, to the extent that the NSW Police Service has every confidence in my abilities to carry and use High Powered weapons and participate in High Risk duties." The applicant did not accept the opinion of the Police Psychologist. 6) The applicant said Internal Affairs personnel interviewed him on 15 December 1999. He said he cooperated fully during the interview and was truthful in his response to questions. He said he was sincerely remorseful for his actions. 7) On 17 December 1999 the applicant's commander notified him that he would be suspended for one month. The applicant returned to full duties at the rank of Acting Sergeant about 17 January 2000. In about June 2000 the applicant approached the Deniliquin Duty Officer, Inspector Dunn regarding the outcome of the investigation. The applicant was informed some days later that if he were to receive a s 181D Notice it would be coming in about six months' time. 8) On 3 August 2000 the applicant was served with the Notice and immediately placed on restrictive duties. 9) The applicant said he sincerely regretted his actions in relation to the use of the Memo System; that he never considered the seriousness of his actions or the possible consequences; that although he had read the Guidelines relating to the use of the Police Memo System he believed that the messages were private and as long as they were not sent to some one who may be offended by them he was not doing anything seriously wrong. 10) The applicant said, "I am not a sexual deviate, I do not watch pornographic movies, I do not buy pornographic magazines and I do have a normal heterosexual sex life and I have strong moral and family values." 16 The Commissioner did not accept the applicant's explanation of his conduct and made an Order pursuant to s 181D(1) in the following terms: Order under Section 181D (1) of Police Service Act 1990 I, Peter James Ryan, Commissioner of Police, having considered your conduct, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Service. In reaching my decision, I have taken into account a submission prepared in relation to you, the notice served upon you on 3 August, 2000 pursuant to section 181D(3)(a) of the Police Service Act and the written submissions furnished by you through your solicitors. I have carefully considered the matters raised by you in response to the grounds particularised in the Notice. The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this Order. Commissioner's reasons for removing the applicant 17 Attached to the Order removing the applicant from the Police Service was a Statement of Reasons (pursuant to s 181D(4)) in the following terms: STATEMENT OF REASONS I am required to make a determination under s181D(1) of the Police Service Act 1990 in respect of whether I have confidence in you as a member of the Police Service. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself, together with a Notice served upon you on the 3 August, 2000 pursuant to s181D(3)(a) of the Police Service Act 1990, together with written submissions provided on your behalf by your solicitor. The grounds set out in my notice to you under s181D(3)(a) of the Police Service Act, 1990 refers to the criteria of your conduct and is set out as follows, 'Between 26 March 1999 and 28 November 1999, you received and disseminated offensive and refused classification material to other members of the Service via the Police Service Memo System contrary to Service guidelines'. Further, 'Between 26 March 1999 and 28 November 1999 you did publish an indecent article in breach of section 578C(2) of the Crimes Act 1900'. I have before me material which discloses that you received and disseminated offensive pornographic material on the Police Service Memo System that has been classified by the Office of Film and Literature Classification (sic) under the Classification (Publications, Films and Computer Games) Act 1995 as 'Refused Classification', 'Category 1 Classification' and 'Category 2 Classification'. The consequence of your behaviour is that you published offensive pornographic material that cannot be legally imported or sold in Australia as well as publishing an indecent article in breach of section 578C(2) of the Crimes Act 1900, which in itself is criminality. Your inappropriate behaviour is consequential and over a prolonged period. When interviewed you admitted your inappropriate behaviour, although these admissions were as a result of you becoming involved in an investigation. I note that you did not consider this material offensive, which is a cause for concern. Additionally, when you became aware of Internal Affairs involvement you sent a memo to another officer with the heading "IA Alert". Although you have suggested this was innocent and your motives were not sinister, I have taken a more deleterious view of your action. The material before me discloses that you received a statewide memo on 8 July 1999 concerning the appropriate use of the memo system. However subsequent to that you became involved in the receipt and forwarding of this offensive pornographic material. What is particularly disturbing is that after receiving the statewide memo you commenced an extremely disgusting dialogue on the memo system to another officer over a prolonged period. The nature and content of this email is completely outside acceptable behaviour for a police officer. The aspect, which I have viewed as highly unfavourable, has been of significant influence in my determination. I note your suggestion in your written submissions that you do not agree with the findings of the psychologist and suggest that on the limited basis available the psychologist report is not a fair assessment of you. I am aware that professional psychologists at times only refer to written material in providing an opinion and such opinions are held to be cogent and reliable. I have noted the issues raised by the psychologist in her report. However, legislation vests in me the responsibility for making the determination under s181D(1). In accord with that duty I have had regard for the psychologist's report, however, that report has only corroborated my own view which I reached after reading and considering the contents of your emails. You have raised a number of issues in mitigation. These relate to your early life, the involvement of other police in the inappropriate use of the memo system and the assertion about the privacy of the memo system. I have taken account of the issues you have raised, and I note that you co-operated with investigating police and you have expressed regret for your behaviour. However, I am of the view that these issues of mitigation do not excuse your behaviour. You have also briefly raised the question of procedural unfairness in your written submissions. I am of the view that I have not countenanced procedural unfairness, as I have provided you with a copy of all the documentation that I had before me in reaching my determination. You have also outlined to me your good record as a police officer. I have taken note of your assertion, however this does not obviate your inappropriate behaviour. I reiterate what I stated at the commencement of these Reasons, that I am required to make a decision as to whether I have confidence in you. In reaching that decision I must canvass the substantive issue, your inappropriate use of the Police Memo System. I must also have regard to your written submissions, which I have done. I find that you have not explained or negated your behaviour. I am of the view that your misuse of the Police Internal Memo System was unacceptable and inappropriate. I have a duty to the people of this State to ensure that police officers act appropriately. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service. P J Ryan Commissioner of Police Date: 25-10-00 18 It may be seen from the Statement of Reasons that the central reason expressed by the Commissioner for losing confidence in the applicant was his misuse of the Police Internal Memo System. The "misuse" involved, firstly, the alleged reception and dissemination of offensive and pornographic material over the System between 26 March 1999 and 28 November 1999 and, secondly, the alleged publication of an indecent article in breach of s 578C(2) of the Crimes Act 1900. The "offensive pornographic material" consisted of various images and the text memo referred to earlier that the Commissioner claimed had been variously classified under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) as 'Refused Classification' ("RC"), 'Category 1 restricted' and 'Category 2 restricted'. The alleged indecent article was a particular pornographic image ("dog.mpe") allegedly classified as RC under the aforementioned Act. 19 In his Statement of Reasons the Commissioner also: · Said the applicant's inappropriate behaviour was "consequential and over a long period". · Noted that the applicant did not consider the published material offensive, which was a cause for concern. · Took a "more deleterious view" than the applicant of the applicant's action in notifying David Blackbourne of an Internal Affairs investigation into the use of the Police Memo System. · Referred to the fact that the applicant received and forwarded the offensive pornographic material after he had received a statewide memo concerning the appropriate use of the memo system. · Referred to the "extremely disgusting dialogue" in the text memo. · Took into account the issues of mitigation raised by the applicant in his written submission. 20 I propose to deal with the Commissioner's reasons for removing the applicant in more detail after outlining the respective parties' cases. The case for the applicant 21 Mr B G Docking of counsel appeared for Mr Burrows. In his written submissions Mr Docking cited 13 "principles" as to why the removal of the applicant was harsh, unreasonable or unjust. However, it seems to me that Mr Docking relied on nine main grounds in support of the claim that the removal of Mr Burrows was harsh, unreasonable or unjust. These grounds were as follows: 1) In deciding to remove the applicant from the Police Service the Commissioner had regard to a ground that was not identified in the Notice sent to the applicant, namely, the "IA Alert" message sent by the applicant to Blackbourne. This rendered the Commissioner's statutory decision-making process nugatory. 2) The Commissioner should have elected which one of the 15 emails was relied upon in support of the first ground in the Commissioner's Notice. The applicant is entitled to be apprised of the particular act, matter or thing alleged as the foundation of the charge. Adequate notice to the applicant must be clear and definite so that he will know precisely what he has to meet. This would ensure unfair duplicity is removed. 3) That in suspending Mr Burrows for one month commencing on 17 December 1999 and imposing penalties of loss of a portion of annual leave and a 10 per cent salary reduction as punishment for the admitted conduct relating to the use of the Police Memo System, the Commissioner waived any right to impose a further penalty on Mr Burrows in the form of removal from the Service. Absent any fresh act of misconduct following the period of suspension, the Commissioner acted harshly, unreasonably or unjustly in removing Mr Burrows. 4) Officers from Internal Affairs interviewed the applicant on 15 December 1999 regarding his conduct. It was not until 19 July 2000 that the applicant was issued with the Notice. During this period the applicant performed his duties as a police officer in a most commendable manner. The applicant was of the belief that by virtue of his suspension the Commissioner had already dealt with him and that the inordinate delay in initiating proceedings under s 181D was harsh, unreasonable or unjust. 5) The evidence was that 471 members of the Police Service were detected as receiving and/or disseminating pornographic material over the Police Memo System. Only three members were removed in relation to this conduct. Retained officers were more culpable than the applicant. The differential treatment of Mr Burrows was procedurally and substantively unfair and caused his removal to be harsh, unreasonable or unjust. 6) The applicant's removal was far too severe a penalty and amounted to being harsh, unreasonable or unjust. The professional and character evidence in support of the applicant and his community reputation militates heavily in his favour. The applicant's past good conduct and service record militates heavily in favour of Mr Burrows. The removal of the applicant was harsh in its personal circumstances. 7) The Commissioner had not made out a proper basis for the allegations in the two grounds relied on by the Commissioner to remove the applicant in that there was insufficient evidence to show that the material referred to in Ground 1 was "Refused Classification" material and that the text memo referred to in Ground 2 was not an indecent article within the meaning of s 587C of the Crimes Act 1900. 8) The Commissioner failed to consider or properly consider the applicant's psychological fitness to serve as a police officer. 9) The marked inconsistency of the treatment of the applicant by the Commissioner compared to other police officers should lead to Mr Burrows being reinstated without loss. In the alternative, the applicant should be reinstated "with the loss of a few months' pay." In the further alternative, the applicant should receive the maximum compensation. Case for the Commissioner 22 Mr J J Graves SC with Mr G M Galluzzo of counsel appeared for the Commissioner. The thrust of the submissions of Mr Graves for the Commissioner was that: 1) The applicant received and disseminated offensive pornographic material on the Police Service Memo System. 2) The applicant admitted receiving memos with attachments and on several occasions the applicant would forward the emails to other email addresses. 3) The course of conduct of the applicant was over a prolonged period of time. 4) The applicant conceded that the memos could be sent accidentally to a third party. 5) The applicant did not consider the inappropriate material offensive. 6) The applicant on becoming aware of Internal Affairs involvement sent a memo to another officer with the heading "IA Alert". 7) The applicant received a statewide memo on 8 July 1999 concerning the use of the Police Service Memo System. 8) After receiving the statewide memo the applicant became involved in the receipt and forwarding of an offensive pornographic memo text. 9) The applicant did publish an indecent article in breach of s 578C(2) of the Crimes Act 1900 (NSW). 10) The applicant bore the burden of satisfying the Commission that his removal was harsh, unreasonable or unjust. The applicant failed to do so. 11) The Commissioner followed the statutory process "to the letter". The Commissioner provided the applicant with a copy of the "Commissioner's Confidence Submission" document. The applicant's response carefully and methodically ranged over and dealt with each and every topic in that document including the "IA Alert" issue. There was no procedural or substantive unfairness. The applicant's "IA Alert" conduct was not determinative of the Commissioner's decision to remove the applicant. The Commissioner would have removed the applicant without the "IA Alert" conduct. 12) The applicant did not consider the material to be offensive until after the investigation by Internal Affairs. 13) The Commissioner was correct in removing the applicant for his deliberate, protracted, disobedient, deviant and immature conduct. 14) There is no unfairness for duplicity. The Commissioner was entitled to rely upon each and every transmission of "pornographic filth" by the applicant. 15) The Commissioner did not rely upon any opinion of the police psychologist (Garbutt) as to the applicant's conduct but rather upon his own view. 16) The applicant's reliance on Van Huisstede v Commissioner of Police (2000) 98 IR 57 was, for a range of reasons, misplaced. 17) The 10 per cent reduction in the applicant's salary was not a penalty per se; merely recognition of the fact that a night shift allowance was not payable during the period of suspension. 18) In relation to the fact that the Internal Affairs investigation identified 471 police officers who had been involved in receiving and/or disseminating pornography on the Police Memo System, the Commissioner was only invited to consider the position of nine of those officers. The remainder were dealt with at the local command level. In relation to six of the nine officers the Commissioner was advised that their conduct was no different to the conduct of the other 462 officers dealt with at the local command level. The three remaining officers, including the applicant, were dismissed. 19) The Commission should take into consideration the decision of the Government and Related Employees Appeal Tribunal in Gavrilovski (unreported, Appeal No. 191 of 2001, 29 August 2001). Replies by the parties 23 Mr Docking provided a further written submission in reply dated 8 October 2001 in which he referred to a recent decision of Walton J, Vice President in Starr v Commissioner of Police [2001] NSWIRComm 226 and a decision of the Federal Court in Australian Competition & Consumer Commission v Daniels Corporation International Pty Ltd [2001] FCA 244 (16 March 2001). Mr Graves responded on 26 October 2001 with a supplementary submission on the ground that the applicant had not previously cited Starr and ACCC v Daniels and that the Commissioner should be given the right to address the new issues that arose. I have read and taken into account the Commissioner's supplementary submission. 24 Mr Docking had reserved a right to put further submissions in his reply as to how the Commissioner claimed to have made out the respective allegations in the two grounds in his Notice, particularly as to the allegation that the applicant received and disseminated "refused classification" material under the Classification (Publications, Films and Computer Games) Act and the allegation that the text memo was an indecent article within the meaning of s 578C(2) of the Crimes Act. Mr Docking contended that the Commissioner had failed to substantiate the validity of the grounds. PART C. BURROWS – CONSIDERATION 25 At the outset of any consideration of this matter it should be made clear that, in my opinion, Mr Burrows, as a serving police officer, used the Police Service Memo System to receive and send what I found to be highly offensive pornographic material and to engage in a written dialogue with another officer involving an extreme level of vulgarity in contravention of instructions sent to all police officers relating to the proper use of the System. 26 The fact that the applicant conducted himself in this way is not, however, the sole consideration in this matter. The Act mandates that I follow a process and take specified matters into account before arriving at a view as to whether Mr Burrows' removal from the Police Service was harsh, unreasonable or unjust. I have already described the process and the matters to be taken into account and I will not repeat those. I have also already referred to the reasons for the applicant's removal and the respective cases of the parties. I now propose to address those matters in more detail. IA Alert issue 27 It was contended for the applicant that in deciding to remove the applicant from the Police Service the Commissioner, in his Statement of Reasons, had regard to a ground that was not identified in the Notice sent to the applicant, namely, the "IA Alert" message sent by the applicant to a fellow officer by the name of David Blackbourne. This, it was submitted, rendered the Commissioner's statutory decision-making process nugatory. 28 The relevant text of the message, sent by the applicant to David Blackbourne on 1 December 1999, was as follows: I.A. Alert Dave, I just got off the phone from Middo. He has just had his memo suspended by I.A as a result of an investigation into an inappropriate memo… They are trying to trace the origins of the file. That would mean they would get you and me as well. Dave rang I.A and they said that if he only forwarded it on, he would get a rap over the knuckles and they are after the originator, who would be in deep shit. We will have to wait and see. I' (sic) think I will read and delete now…. 29 The Act requires the Commissioner to give a 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. In Mr Burrows' case the grounds relied upon were that: 1. Between 26 March 1999 and 28 November 1999, you received and disseminated offensive and refused classification material to other members of the Service via the Police Service Memo System, contrary to Service guidelines. 2. Between 26 March 1999 and 28 November 1999, you did publish an indecent article in breach of section 578C(2) of the Crimes Act 1900. 30 There was no mention in the Notice about the "IA Alert" email that the applicant sent to Blackbourne. However, in the Statement of Reasons attached to the s 181D(1) Order removing the applicant from the Police Service the Commissioner said: Additionally, when you became aware of Internal Affairs involvement you sent a memo to another officer with the heading "IA Alert". Although you have suggested this was innocent and your motives were not sinister, I have taken a more deleterious view of your action. 31 In Van Huisstede, Walton J, Vice President observed that: 24 The Commissioner must take the steps specified in s181D(3) before removing a police officer. The procedures required by that sub-section are mandatory. This is made clear by the opening words of the sub-section. This limitation also arises from the operation of s181D(3)(c). The requirement for the Commissioner to take into account the submission of a police officer with respect to any grounds specified in the notice would be rendered nugatory, if the Commissioner were permitted to have regard to grounds, in reaching a decision to remove an officer, which were not identified in the notice. 32 The issue arises, of course, as to whether the failure by the Commissioner to inform the applicant in the Notice issued to the applicant that a matter to be taken into account in deciding whether to remove the applicant would be the "IA Alert" email amounted to a denial of procedural fairness. Such a denial may mean that the removal of the applicant was harsh, unreasonable or unjust: Newton v NSW Police Service (1999) 87 IR 66 at 76-77; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430; 61 IR 32 at 43; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 467. However, it is not every failure in following procedure that will lead to the conclusion that a dismissal was harsh, unreasonable or unjust: Bigg v NSW Police Service (No2) (1998) 80 IR 434 at 460; Van Huisstede at 106; Starr at [140]. 33 Part of the material provided to the applicant at the time he was issued with the Notice included a document referred to as the Commissioner's Confidence Submission. That document included excerpts from a record of interview of the applicant conducted by officers from Internal Affairs on 15 December 1999 where the applicant was asked about the "IA Alert" email. The interview recorded the following exchange: Q371 When, when did you become aware that Internal Affairs were conducting an investigation in relation to the memo system? A Ah I think Dave Middleton said he was locked out of the computer or something and had contacted I.A. and I.A. had informed him there was an investigation being conducted. Q372 Do you recall when that took place? A Oh could have been the last few weeks, may be a little longer. Q373 Do you recall sending a memo message to David Blackbourne under the title of I.A. Alert? A I think I did send something to Dave but that was after sending, speaking to Dave Middleton. Q374 What was the intention of that particular memo message? A Oh just to let him, let him know that something was um getting investigated, um at that stage I thought it was just one image or something they're trying to track back, I was yeah, I wasn't aware how big it was going to turn out. Q375 Would you agree that by sending this message to David Blackbourne that you may have prejudiced or hindered an internal police investigation? A It wasn't my intention at that stage to do that, I wasn't aware that there was an investigation into him or me at that stage. 34 The "IA Alert" issue was also specifically referred to in the Commissioner's Confidence Submission, so it was not an issue hidden away in the record of interview. 35 Moreover, the applicant addressed the "IA Alert" email in his submission responding to the Commissioner's Notice. He said: At the time of writing the message, I had no knowledge that I was part of any investigation. IA informed the officer who had told me about his memo access being frozen, that he might receive a rap over the knuckles for his involvement if he forwarded the message. Given that advice, I never imagined that what I did would lead to my current predicament. 36 It is to be noted that the applicant's submission was prepared with the assistance of his legal advisers. 37 Despite the fact that the "IA Alert" issue was not cited by the Commissioner in his Notice as a ground for removing the applicant, in my opinion it would have been clear to the applicant from the information he was provided with that it was an issue open to the Commissioner to take into account – it was squarely before the Commissioner. That is obviously why the applicant addressed the issue in his submission. 38 A reading of the Commissioner's Statement of Reasons indicates, however, that the "IA Alert" issue was not central to the decision to dismiss in the same way as the two stated grounds. As part of his overall consideration the Commissioner did take the "IA Alert" issue into account in arriving at the view that he no longer had confidence in the applicant as a police officer. However, the applicant had every opportunity - and took it - to address the issue in his written response. It was not as though the applicant was ambushed. 39 Mr Docking submitted that by taking a "more deleterious view" of the applicant's action in alerting Blackbourne, the Commissioner had introduced a new criterion of "integrity" as a basis for removing the applicant, whereas the Notice referred only to "conduct". I do not agree. The reference by the Commissioner to the "IA Alert" email was, as I have already indicated, a subsidiary element in his consideration of the applicant's conduct, the centrepiece of which was the misuse of the Police Memo System. 40 In my opinion, the reference to the "IA Alert" email in the Commissioner's reasons did not introduce any surprising new element that amounted to procedural unfairness and could not, taken in isolation, lead me to conclude that the dismissal was harsh, unreasonable or unjust. Applicant punished twice for same misconduct 41 It was next contended for the applicant that in suspending him for one month and imposing penalties of a loss of portion of his annual leave and a 10 per cent salary reduction as punishment for his admitted conduct, the Commissioner waived any right to impose a further penalty on the applicant in the form of removal from the Service. It was submitted that absent any fresh act of misconduct following the period of suspension, the Commissioner acted harshly, unreasonably or unjustly in removing Mr Burrows. 42 In relation to this period of suspension, firstly the contention that the applicant suffered a loss of annual leave and a reduction in pay does not appear to be correct. There was no evidence that the applicant's pay and annual leave were reduced for the express purpose of imposing a punishment although the act of suspension as a form of punishment is another matter. 43 The initial suspension of Mr Burrows, and then his subsequent removal, is a matter of considerable concern in weighing up whether he was dealt with harshly, unreasonably or unjustly. 44 The interview of Mr Burrows conducted on 15 December 1999 recorded the following: Q390 Detective Sergeant Cook : At this time well I can indicate to you that we'll be completing our recommendation report to the Regional Commander, Mr Gollan, setting out the ah nature of this, this interview and the nature of the action taken against other officers identified during the course of this investigation and comparison of your involvement in this matter compared to their involvement at which time the Regional Commander will make a decision as to whether or not to suspend you from police duties and submit 181D application to the Commissioner which is a loss of confidence matter, um that will be determined I'd imagine in the next couple of days. Do you understand that? A I understand. 45 In his evidence Mr Burrows deposed that: I was interviewed about the matter [inappropriate use of Police Service Memo System] on the 15th December 1999, two days later on the 17th December, my Commander, Inspector Morley advised me that I was to be suspended for 1 month and I would then return to duty on the 17th January 2000. I assumed that was the punishment for what I had done. I returned to full duties on the 17th January 2001 [sic – should read 2000] with the rank of Acting Sergeant. I heard nothing more about the matter and I assumed it had been finalised, but in June 2000 I asked the Duty Officer at Deniliquin, Inspector Dunn, if he could confirm for me that the matter was over. A couple of days later, Inspector Dunn told me if anything was to happen it would take about another six months, but as it turned out it was only about 2 month (sic) later that I was served with the 181D Notice. 46 It would appear that Mr Burrows was suspended with pay at the direction of Assistant Commissioner Gollan, the Regional Commander for the Southern Rivers Region. Superintendent Morley, who was the Local Area Commander of Deniliquin Police Local Area where the applicant was stationed in December 1999, deposed: In regard to my conversation with Mr Burrows on the 17 December, 2000 [sic – should read 1999], I would say the following. Mr Burrows had spoken to me on the 15 December 2000 [sic – should read 1999] and asked what was happening with him as far as the investigation into the inappropriate use of the email. I told him that I would be speaking to the Region Commander on the following day and I would let him know as soon as possible. I returned to Deniliquin late on Thursday night, the 16 December 2000 [sic – should read 1999], and on the following day, Friday the 17 December, 2000 [sic – should read 1999], I spoke to Burrows and told him that he was being suspended for a period of one month. That his suspension would be with pay and that he would be returned to work after a month. Mr Burrows then asked me what would happen after the suspension period. In other words, what would be the likely outcome of the matter. I told him, I did not know, I said that I thought his actions would incur some sort of censure or penalty, however, I thought it unlikely that he would be dismissed. However, I made it clear to him that in the end it was not my decision and that the outcome from the inappropriate use of the email would be decided at a high level. 47 In a later affidavit, Superintendent Morley deposed that he said to Mr Burrows "on 17 December 2000" [sic - should read 1999]: After the period of suspension you will more than likely get a slap over the wrist. I can't see you getting dismissed over it. Ultimately it is going to be decided at a higher level than mine. But regardless of anything you will have my full support. 48 Under cross-examination, Mr Burrows agreed that after leaving Superintendent Morley's office on 17 December 1999, it was a "possibility" that "there was a real chance that there would be some penalty over and above the one month suspension". 49 After his suspension on pay Mr Burrows did in fact return to full duties as an Acting Sergeant. In about March 2000, Mr Burrows attended the 2000 Annual Camp for the SPSU and in Mr Docking's words was given "a clean bill of psychological and physical fitness". 50 In May 2000 the Local Area Commander, Deniliquin Local Area Command, was advised by the Commissioner's Confidence Coordinator that: Changes to the administrative process for Section 181D of the Police Service Act have been made in relation to nominations stemming from Internal Affairs investigations. Upon the completion of an investigation, Internal Affairs investigators may recommend the officer's removal to the Commander of Internal Affairs. The Commander of Internal Affairs, upon agreement, will endorse such a recommendation and initiate the nomination for the officer's removal. With regard to Senior Constable Paul BURROWS, a recommendation has been endorsed and a Section 181D nomination has been instigated by the Commander of Internal Affairs…. 51 Superintendent Morley deposed that upon receiving this advice he said to the applicant: You will have to start compiling a report as to all the good things you have done because if you get a section 181D, this will go to credit as to whether they consider dismissing you. Rather than waiting until you get a 181D and put yourself under pressure, start compiling your report as to all the good things you have done. 52 The evidence relating to Mr Burrows' suspension and the ensuing process that led to his removal was less than conclusive. It was not clear from the evidence: · Whether in fact the one month suspension of the applicant was initially meant to be the extent of the punishment for his misuse of the Police Memo System and, if so, whether it was subsequently determined that the punishment was not sufficient. · Why the applicant was not told either from the outset or upon his resumption of duty following suspension that he was being considered for nomination under s 181D if in fact that was the case at the time. If it was not the case at the time of the applicant's suspension that he was being considered for nomination under s 181D, what was the reason for the change of heart on the part of the Police Service? · Why it was considered necessary by the Police Service to change the administrative process in relation to s 181D and take the decision for initiating the removal process out of the hands of the relevant Regional Commander and to place it in the hands of an Internal Affairs investigator. · Why it took so long to inform the applicant that he was being considered for nomination for s 181D action (nearly five months) and then a further three months before a Notice was issued to the applicant. · Why the applicant would have been returned to the position of Acting Sergeant after his suspension if he were the subject of a continuing investigation into his conduct. · Why the applicant would have been permitted to remain as a member of the SPSU and to attend that Unit's annual camp in March 2000 if there was concern about the implications of his conduct in relation to the use of the Police Memo System and it was the intention in that same month to have a psychological report prepared on the applicant. 53 In my opinion, the applicant's state of mind at the time he was suspended included a lingering concern that his suspension might not be the end of the matter in terms of punishment and that he might receive a "slap over the wrist". But when he returned to duty he did so as an Acting Sergeant and he continued to perform his work without any further complaint. He attended the SPSU camp in March. Up until May 2000 he was entitled to think that the chances of him being dealt with further in relation to his misuse of the Memo System had significantly receded. He was certainly entitled to believe that there was no prospect of him being removed from the Service. 54 In May, he was informed that he had been recommended for removal. This was despite the fact that the applicant had already been suspended for one month. The suspension, it may be inferred, was a punishment. There is no other plausible explanation for it, given the sequence of events. If the suspension had been for the purpose of enabling Internal Affairs to engage in further investigations into Mr Burrows' transgressions, it must be asked why wasn't Mr Burrows told this was the case? Moreover, what was left to investigate given that the applicant had admitted his involvement during the course of the interview with Internal Affairs investigators on 15 December 1999? The Regional Commander, it appears, administered the punishment. Then, for some reason that was not explained, there was a change in administrative process that took the matter out of the hands of the Regional Commander and enabled an Internal Affairs investigator to recommend the removal of a police officer. Consequently, Mr Burrows received a further punishment and that was removal. It is difficult to escape the conclusion that Mr Burrows was punished twice for the same offence. 55 It may be contended, as indeed it was in effect, that given the nature of Mr Burrows' conduct the suspension was manifestly inadequate. I'll come to that question later. But it was plainly unreasonable in my opinion to leave Mr Burrows in a state of mind where he believed if he was to be punished further it would be a relatively minor punishment only to discover, five months later, he was facing removal from the Service for the same admitted conduct that lead to his suspension in the first place. In other words, there was no new misconduct relied upon to support the nomination for removal. 56 I note the Commissioner's Confidence Submission stated: Upon completion of his interview on 10 December 1999 (sic), Senior Constable Burrows was suspended with pay by Assistant Commissioner Gollan of Souther (sic) Rivers Region, however he was later returned to full duties by his Commander after the investigation widened and revealed the extent of the problem. 57 This statement simply does not ring true. Mr Burrows was told at the time of his suspension that he would be suspended on pay for one month. He was not returned to duty "after the investigation widened and revealed the extent of the problem." Mr Burrows returned to duty after his one-month suspension. He was not told there were ongoing investigations either into his involvement or the involvement of other police officers; he was not informed of the serious prospect of removal from the Service until some five months after his initial suspension. There was a lack of fairness in dealing with Mr Burrows. 58 The statement quoted above from the Confidence Submission is also misleading to any person reading it, including the Commissioner. It suggests that Mr Burrows was initially suspended then returned to full duty because of the need to widen the investigation. In other words, the statement gives the impression that because the problem was bigger than first thought and further investigation was required, Mr Burrows could not be suspended for what could turn out to be a long period of time. The most appropriate course was, therefore, to return him to duty while the investigation was carried out. This, however, was simply not the case. It would, therefore, appear that the Commissioner was under a misapprehension regarding Mr Burrow's suspension. 59 In seeking to understand why it was necessary to introduce new administrative procedures to enable an Internal Affairs investigator to initiate action under s 181D rather than the Regional Commander, I noticed in the "s 181D Checklist for Commanders/Managers" filled out by Sergeant Paul Skuratowski (Sgt Skuratowski was one of the Internal Affairs investigators who interviewed Mr Burrows on 15 December 1999) in relation to Mr Burrows that under the heading "Risk Assessment", Sgt Skuratowski wrote: The incident involves the gross misuse of Police Memo System by Burrows. The matter has (sic) considered as extremely serious by the Commissioner and received unfavourable media attention. The matter is being closely scrutinised by the Ombudsman and is being referred to the minister. The ability of the constable to perform his duties effectively is questionable. 60 There is no evidence on which I could rely that the change in procedure that caused Mr Burrows to be punished twice was brought about simply because of "unfavourable media attention" or concern on the part of the Ombudsman or relevant Minister and, therefore, an example had to be made of Mr Burrows. But in the absence of any satisfactory explanation for the change of procedure, I am left to wonder. I also note Sgt Skuratowski indicated on the checklist that the status of Mr Burrows as at 19 April 2000 was "Suspended with pay", which, of course, was not correct. The checklist also indicated that Mr Burrows was aware of his intended nomination for removal. Again, this was not correct. 61 In my opinion, the process leading to Mr Burrows' removal from the Police Service was flawed and caused an injustice to the applicant. Applicant's differential treatment 62 The next contention by the applicant was that given a large number of police officers had been detected receiving and/or disseminating pornographic material over the Memo System and only three were removed, the applicant's removal was procedurally unfair. 63 The evidence indicated that there were 471 officers, of ranks up to and including Inspector, who were detected as receiving and/or disseminating pornographic material over the Memo System. Of these 471 officers 462 were dealt with at Local Area Command level and nine were referred for action under s 181D. In respect of six of the officers nominated for action under s 181D, advice was provided to the Commissioner that their involvement was no different to the other 462 officers dealt with at the local level and the Commissioner issued them with warnings. Three officers, including Mr Burrows, were removed. 64 Amongst the pornographic material received and/or disseminated by officers other than Mr Burrows was material claimed by the Police Service to be classified by the Office of Film and Literature under the Classification (Films, Publications and Computer Games) Act as RC and Category 1 and Category 2. One offensive pornographic image, in particular, titled "Hook, Line and Sink-Her", which was received by Mr Burrows, was also sent and received by a number of other officers, none of whom were removed from the Service. 65 One officer, a sergeant in the role of Acting Duty Officer, sent at least: · three alleged RC memo attachments as opposed to the one sent by Burrows; · 14 alleged Category 2 memo attachments as opposed to the ten sent by Burrows; · nine alleged Category 1 memo attachments as opposed to the one sent by Burrows. 66 The recipients of the Acting Duty Officer's messages included officers junior to himself. The Acting Duty Officer was nominated for s 181D action but was let off with a warning. 67 Another Senior Constable received and disseminated four allegedly RC articles, 14 allegedly Category 2 and 13 allegedly Category 1 articles. The officer was nominated for s 181D action but was let off with a warning. 68 It was stated in the Commissioner's Confidence Submission that Burrows admitted in his record of interview of 15 December 1999 that "he did not report the receipt of offensive materials to his supervisors" and "he was aware of his responsibilities in reporting misconduct". That may be so but this admission has to be balanced by the fact that Mr Burrows sent a number of pornographic images to a sergeant who at the time was attached to the same station as the applicant, namely Deniliquin, and the sergeant took no action in relation to the images. This fact was not mentioned in the Confidence Submission. 69 Under cross-examination, Ms Rozalinda Garbutt, a Forensic Psychologist employed by the Police Service, agreed that this particular sergeant, who had received the statewide memo regarding the proper use of the Memo System and having been the recipient of pornographic material from the applicant, had condoned Mr Burrows' conduct by failing to take any steps to stop the conduct. 70 In relation to the conduct of other officers involved in receiving and/or disseminating pornographic material, the Commissioner's Confidence Submission stated only as follows: Collectively there were four hundred and forty one (441) sworn and unsworn members identified receiving and/or disseminating offensive articles. Senior Constable Burrows was substantially more active in this process than many other members POLICE SERVICE ACTION As a consequence of the Police Service Memo System mailbox audit, Senior Constable Burrows together with a number of other serving police officers were identified as being involved in breaching NSW Police Service policy … 71 It was submitted for the applicant that because he was not provided with advice or information about how other officers were treated, this amounted to procedural unfairness. It was contended that: Not only did the Commissioner take into account considerations that were not raised with the applicant prior to making the order under s 181D, but also an informed analysis of the documents and other material available to the Commissioner would have assisted Mr Burrows. 72 In other words, it was submitted that if the Commissioner had been given the complete picture in relation to the conduct of other officers and how they had been dealt with he might have come to a different conclusion. Likewise, if Mr Burrows had been given the same information he would have been better able to defend himself against the allegations leading to his removal. 73 Additionally, it was submitted for the applicant that the Commissioner failed to inform himself as to: · What was meant by the subjective assertion that "Senior Constable Burrows was substantially more active …than many other members"; · The ranks of these other officers and their supervisory position in relation to Mr Burrows; · Whether officers in the Service stopped or condoned the activity; · Whether those officers found the emails offensive or unwelcome. 74 It is to be noted that the Commissioner had before him at some stage six other submissions relating to other officers nominated for s 181D action. It could be argued that, therefore, the Commissioner was familiar with the conduct of other officers when it came to considering Mr Burrows and was able to make a fair comparison. The difficulty with this proposition, however, is that there was no evidence led from which it could be inferred that the Commissioner had considered the evidence relating to the six other officers in the decision-making process relating to Mr Burrows: see Oswald v NSW Police Service (1999) 90 IR 42 at 64. 75 In my opinion, it would have been unjust for the Commissioner to remove the applicant solely on the basis of the pornographic images sent and received by the applicant. Too many other officers, including more senior officers, had been involved in the same conduct yet they were not removed from the Service. Indeed, it could be said that in respect of some of the other officers, their misconduct in sending pornographic images was even grosser than that of the applicant. It was submitted for the Commissioner that the fact that other officers may have been involved in conduct similar to that of Mr Burrows does not mean that the Commissioner should "stay his hand" and not remove the applicant. I do not agree. If the Commissioner on the one hand removes the applicant for particular misconduct and on the other hand does not remove others guilty of the same misconduct then, in my opinion, the Commissioner has acted unreasonably or unjustly. 76 In order to justify the removal of the applicant it would have to be demonstrated that the applicant's conduct was such as to exhibit a greater degree of culpability than other officers. This brings me to the question of the text memo. The pornographic text memo 77 The applicant's next contention was that the primary reason advanced by the Commissioner as to why the applicant was in a different category to other officers found to have used the Memo System inappropriately and, therefore, was deserving of removal, was "arbitrary, irrational and unreasonable": Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ. The primary reason was said to be the pornographic text memo. 78 Whether the applicant was treated unreasonably or unjustly in comparison to other officers comes down to whether his conduct warranted a more severe sanction. In other words, what was it about the text memo that put Mr Burrows in a class apart from those other officers who engaged in receiving and/or sending pornographic images? 79 The dialogue in the letter, which extended over some nine A4 pages, was disgusting and revolting. But so were the collection of pornographic images sent by other police officers and I do question whether a distinction can be made as to which was the more offensive or disgusting, the images or the text memo. Moreover, Mr Burrows was not the only officer who was engaged with Mr Blackbourne in exchanging pornographic memos. The evidence showed another officer was engaged in similar conduct, though less intense and less drawn out, yet she only received a warning. 80 It was alleged in the Commissioner's Confidence Submission that the text memo had been classified as a Category 2 publication. There was, however, no evidence that the text memo had been classified by the Office of Film and Literature, let alone classified as Category 2 and so the Commissioner was under a misapprehension as to the status of the text memo under the Classification (Publications, Films and Computer Games) Act. 81 I note that the applicant was under the impression that the Commissioner was alleging that the text memo was an indecent article under s 578C(1) of the Crimes Act and that the applicant had published the article. I do not understand that to have been the Commissioner's contention, but even if it was and the text memo had been classified as Category 2, it would not qualify as an indecent article under s 578C(1) of the Crimes Act; an "article" under s 578C(1)(f) does not include a publication that is classified as Category 2 under the Classification (Publications, Films and Computer Games) Act. 82 It was also alleged in the Commissioner's Reasons that the text memo was transmitted over a prolonged period and commenced after the applicant received a statewide memo requiring officers to conduct themselves responsibly when using the Police Service Memo System. I address the issue of the applicant's receipt of the statewide memo later in this decision. As for the fact that the text memo was put together over a prolonged period, it appears to have commenced in July 1999 and carried through to November 1999. I note from the evidence, however, that the conduct of a number of police officers in sending and/or receiving pornographic images and accompanying text memos extended over the period between May and November 1999. I do not regard the fact that the construction of the text memo over a five months' period is a factor that distinguishes the applicant's conduct from a number of other officers involved in the transmission of pornographic material but who were not removed from the Service. Code of Conduct and Ethics 83 The Commissioner's Confidence Submission alleged that by virtue of an admission he made when interviewed, Mr Burrows was aware of the requirements of the Police Service's "Code of Conduct and Ethics". No question was asked of Mr Burrows in his interview relating to any such Code. However, there was evidence that Mr Burrows had signed a statement in June 1997 indicating that he had received and read a copy of the Code. The Code itself was not produced into evidence. It would appear, therefore, that while the Code was not the subject of any questioning during Mr Burrows' interview on 15 December 1999, that in 1997 Mr Burrows had indicated that he had read the Code. 84 Now, I do not know what was in the Code and I do not know whether or not Mr Burrows did in fact read it and digest its contents as his signature on the covering letter to the Code suggests. But Mr Burrows did have the opportunity in his written response to the Commissioner's Notice to refute the allegation that he was aware of the requirements of the Code and he did not do so. Ultimately, however, I do not consider that much turns on this issue of the Code of Conduct because it does not appear to me that the Commissioner relied on it to any great extent if at all. The only concern I would express is the allegation in the Commissioner's Confidence Submission that the applicant when interviewed admitted he was aware of the requirements of the Code when that was patently not the case. Electronic mail policy statement 85 The Confidence Submission alleged that Mr Burrows admitted in his interview that he understood his responsibilities in respect of sending and receiving material over the Memo System as outlined in a "NSW Police Service Electronic Mail Policy Statement" sent to all officers. Mr Burrows admitted he had read the Statement but that he believed that as the pornographic messages he was sending were private and "as long as they were not sent to some one who may be offended by them, I was not doing anything seriously wrong." I observe the email message sent by Mr Burrows to David Blackbourne after the Electronic Mail Policy Statement was issued, was in the following terms: David you must feel very important. A statewide memo message concerning the use of the memo system, don't you feel proud. BLAC1DAV must have taken the matter higher. I hope you (sic) messages will now conform with the guidelines. Burrows the magnificent. 86 The reference to BLAC1DAV was a reference to a pornographic message mistakenly sent by another officer to an Inspector who appears to have had a role in initiating the investigation into the misuse of the Memo System. 87 The email from the applicant to Blackbourne is somewhat disturbing. It does suggest on its face that the applicant was cognisant of wrongdoing to the extent that he knew or sensed that the sending of pornographic material over the Police Service Memo System was inconsistent with the guidelines relating to the proper use of the System. Nevertheless, I think that while the applicant felt his conduct may have been inappropriate and was not consistent with the Policy Statement on electronic mail, he did believe that no harm was being done because he was engaging in a private activity and no one would see the material other than himself and those he sent it to. Accordingly, the applicant does not appear to have been fully aware of the consequences of continuing to send inappropriate material over the Memo System. It seems to me that if the applicant had realised his email messages could be read by persons not meant to see them he would have ceased transmission of such messages. In other words, the applicant continued to use the Memo System inappropriately, not out of arrogant disregard but because he believed no one else could gain access to his messages and, therefore, he was not doing anything seriously wrong. 88 I consider that the Commissioner was entitled to take into account as a matter adverse to the applicant, the fact that the applicant had read the statewide memo and subsequently continued to send and receive pornographic material, including the text memo, over the Memo System. 89 However, in the overall scheme of things I consider that what also should have been taken into account was that as far as the applicant knew, the text memo was private correspondence meant to offend no one. I also consider that what should have been taken into account was that the statewide memo on electronic mail was sent to all officers, including those who continued to transmit pornographic material after receiving the memo. It cannot reasonably be contended that Mr Burrows' culpability was greater than other officers because he continued to transmit pornographic material after receiving the statewide memo on how the electronic mail system was to be used, when all officers received the same memo and a disconcerting number of them continued to send and/or receive pornography over the same Memo System used by Mr Burrows. Applicant's awareness of sex based harassment policy 90 The Commissioner's Confidence Submission alleged that Mr Burrows was aware of the Police Service's Sex Based Harassment Policy. The applicant contended that this was not a balanced reading of the answers Mr Burrows gave in his interview on this matter. In his answer Mr Burrows said he was familiar with the Policy "to an extent" but never took it into consideration. It was also submitted that there was substantive unfairness because in taking into account a "submission" prepared in respect of the applicant the Commissioner most likely had regard to the checklist prepared by Sergeant Skuratowski. In that checklist the Sergeant said that the applicant's conduct contravened the Sex Based Harassment Policy. Mr Docking contended that there was no such contravention because there was no victim complaining of sexual harassment. 91 There was no evidence of what was in the "submission" referred to in the Commissioner's reasons and it is not known whether the Commissioner had regard to Sergeant Skuratowski's checklist although it seems to me that the "submission" referred to was the Commissioner's Confidence Submission. Mr Docking submitted that I should draw inferences adverse to the Commissioner because of his failure to give evidence. It does not seem to me there was any obligation on the Commissioner to give evidence on this aspect. It is clear that it was open to the Commissioner, in arriving at his decision to remove Mr Burrows, to have regard to what was said in the Confidence Submission, namely, that the applicant was aware of the Police Service's Sex Based Harassment Policy because the fact is that the applicant, by his own admission, was aware of the Policy. However, the Commissioner does not mention in his Reasons that he did have any regard for the fact that the applicant was aware of the Policy and there is certainly nothing in the Reasons to suggest that the Commissioner, in removing the applicant, believed that the applicant contravened the Service's Sex Based Harassment Policy. I do not find any unfairness in relation to this aspect. What is the allegation the applicant is required to meet? 92 It was next contended by the applicant that the Commissioner should have elected which one of the emails containing pornographic material was relied upon in support of the first ground in the Commissioner's Notice. It was submitted that the applicant was entitled to be apprised of the particular act, matter or thing alleged as the foundation of the charge; adequate notice to the applicant must be made clear and definite so that he will know precisely what he has to meet and to avoid unfair duplicity. The first ground was that: Between 26 March 1999 and 28 November 1999, you received and disseminated offensive and refused classification material to other members of the Service via the Police Service Memo System contrary to Service guidelines. 93 At the time the applicant was sent the Notice he was also sent the Commissioner's Confidence Submission. That Submission contained four pornographic images that were allegedly classified as RC by the Office of Film and Literature as one "film for sale or hire" and three "publications". The Office of Film and Literature is charged with the responsibility under the Classification (Publications, Films and Computer Games) Act of classifying films, publications and computer games. This Act relevantly defines films (which includes a computer generated image) as RC if they: (a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent they should not be classified; or (b) depict in a way that is likely to cause offence to a reasonable adult, a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity); or (c) promote, incite or instruct in matters of crime or violence. 94 A publication that is classified as a "Refused Classification" is similarly defined. A publication means: Written or pictorial matter but does not include: (a) any film; or (b) a computer game; or (c) an advertisement for a publication, a film or a computer game. 95 The Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) prohibits the sale, or public exhibition of RC films, the possession of such films for the purpose of sale or exhibition and the private exhibition of such films in the presence of minors. This Act also prohibits the sale or delivery of RC publications and the showing of such publications to minors. 96 The Commissioner's Confidence Submission also included five other pornographic images that were allegedly classified as "Category 1 restricted" and "Category 2 restricted" classifications. The Classification (Publications, Films and Computer Games) Enforcement Act places various restrictions on the use and publication of such material. 97 There is an ambiguity in the wording of the first ground in the Commissioner's Notice under s 181D(3)(a) of the Act. The ground alleges that the applicant "received and disseminated offensive and refused classification material". Does that mean the applicant received and disseminated offensive material and also received and disseminated refused classification material or does it mean that the refused classification material was also offensive? This is an important distinction because whilst I consider that the applicant did receive and send offensive material using the word "offensive" in the ordinary sense, I do not consider it can be said that the applicant received and disseminated offensive, refused classification material. My reasons for coming to this conclusion are explained under the next heading. The other difficulty with the wording of the first ground is that it did not identify which of the refused classification material was received and which was allegedly disseminated, although this could have been deduced from the material in the Confidence Submission. Apart from these ambiguities there was not much room for doubt about the allegations the applicant was confronted with. It was alleged in the Confidence Submission that the applicant: · Received four memos that had been classified as RC; · Disseminated one memo classified as RC; · Received 17 and disseminated 10 memos classified as Category 2; · Received six and disseminated one memos classified as Category 1. 98 The memos alleged to be RC were identified in the Confidence Submission. The Confidence Submission also contained examples of the Category 1 and Category 2 memos. 99 Despite the ambiguities I do not find any unfairness arising out of an alleged failure on the Commissioner's part to elect which one of the pornographic emails he intended to rely on. The substance of the allegations in the grounds in the Notice, however, which were later referred to in the Statement of Reasons, is a different matter. Classification by Office of Film and Literature 100 In his Statement of Reasons, the Commissioner alleged that the applicant had "received and disseminated offensive pornographic material on the Police Service Memo System that had been classified by the Office of Film and Literature Classification (sic) under the Classification (Publications, Films and Computer Games) Act 1995 as 'Refused Classification', 'Category 1 Classification' and 'Category 2 Classification'" and that as a consequence the applicant had published offensive pornographic material that cannot be legally imported or sold in Australia. It was also alleged in the Statement of Reasons that the applicant published an indecent article in breach of s 578C(2) of the Crimes Act, which it was alleged "is in itself criminality." These allegations were derived from the original grounds set out in the Notice to the applicant under s 181D(3)(a) of the Act. 101 It is correct on the evidence to say that the applicant received pornographic material on the Police Service Memo System but there was no evidence that supports the contention that the Office of Film and Literature had classified such material as Category 1 or Category 2 material. In other words, there were no certificates issued by the Office of Film and Literature put into evidence certifying that pornographic images or the text memo were classified as either Category 1 or Category 2. 102 As for the four images that purportedly attracted an RC classification, the allegation in the Commissioner's Confidence Submission was that the applicant "received" four such images and "disseminated" one of them. One of the images (dog.mpe) received, and allegedly disseminated, by the applicant was classified by the Office of Film and Literature as "a film for sale or hire". There was no evidence that the image was at any stage for sale or hire and so the probative value of the RC classification in respect of this image is placed in considerable doubt. 103 If one were to accept for the moment that the Office of Film and Literature did classify images as RC, there was no evidence that in classifying them the Office of Film and Literature took into account the fact that the images were sent to persons who did not find them unwelcome or offensive. The National Classification Code set out in the Schedule to the Classification (Publications, Films and Computer Games) Act provides that classification decisions are to give effect, as far as possible, to a number of principles including that adults should be able to read hear and see what they want and that s 11(d) of that Act requires the Office of Film and Literature to take into account the persons or class of persons to or amongst whom the publication is published or is intended or likely to be published when making a decision on the classification of a publication. If the Office of Film and Literature had been advised that the persons receiving the pornographic images did not regard them as offensive or unwelcome it may be that the Office would have declined to classify the images. 104 Thus, even if I were to accept that the images sent by the applicant had been classified as the Commissioner alleged, there was no evidence that the Office of Film and Literature paid any regard to the persons to whom the images were sent. Therefore, I would be unable to accept the validity of the classifications. 105 The question arises, therefore, as to whether the Commissioner was justified in removing Mr Burrows because he received four pornographic images allegedly classified under questionable circumstances as RC, when Mr Burrows did not regard the images as offensive or unwelcome? I do not think so. The Commissioner had contended, as I noted earlier, that there was an obligation on the applicant to report the receipt of the offensive material to his supervisors. The strength of this argument is diminished somewhat when it is considered that a recipient of pornographic material from the applicant was a sergeant located at the same Police Station who also took no action to notify his superiors yet he was not removed from the Service. There is also the consideration that officers up to and including the rank of Inspector were engaged in the same conduct as the applicant but except for two other senior constables they were not removed from the Service. Whether material was offensive 106 It was contended by the applicant that the pornographic material sent by him over the Police Service Memo System was not considered to be offensive or unwelcome by those receiving it. In the grounds in the Commissioner's Notice under s 181(D)(3)(a) the Commissioner referred to the material received and disseminated by the applicant as "offensive". In his Statement of Reasons for removing the applicant the Commissioner referred to the publication of "offensive pornographic material" by the applicant. All this gives rise to the question of what was meant by the Commissioner in using the term "offensive" in his grounds and Reasons. 107 There was no evidence that the pornographic material disseminated by the applicant offended anyone who received it and there was no complaint by any member of the Police Service or the public that the material offended him or her. So it could not be said that the material was offensive in that sense. 108 Alternatively, the Commissioner may have used the term "offensive" in the sense in which it is used in the Classification (Publications, Films and Computer Games) Act where certain films and publications are classified according to whether they "offend against the standards of morality, decency and propriety generally accepted by reasonable adults" or "are likely to cause offence to a reasonable adult". In other words, relying on the alleged classification of certain of the pornographic material by the Office of Film and Literature, the Commissioner may have concluded the material received and disseminated by Mr Burrows was offensive. If, as the applicant submitted, the material received and disseminated by Mr Burrows was not classified in the way the Commissioner contended then it could not be said that the material was offensive within the meaning of the Classification (Publications, Films and Computer Games) Act. 109 I should comment, however, that Mr Burrows acknowledged in his answers in the record of interview that the text memo was offensive and that other members of the Police Service and the public "may be" offended by the pornographic images. So, if the Commissioner used the word "offensive" in the ordinary sense I consider that he was entitled to describe the pornographic material sent and received by the applicant as offensive. Publication of an indecent article 110 As I have already described, the applicant received four images allegedly classified as RC. He forwarded over the Internet only one of these images (dog.mpe) to a single individual who was not a member of the Police Service. It was submitted by Mr Graves, for the Commissioner, that as the image had been classified as RC it supported the assertion that the image was an indecent article within the meaning of s 578C(1) of the Crimes Act and that "it was open to the Commissioner of Police to find that the Applicant had breached s 578C of the Crimes Act 1900 (NSW)". 111 It is an offence under s 578C(2) of the Crimes Act to publish an indecent article. Putting aside the dubious validity of the RC classification attached to dog.mpe, the question arises as to whether by sending that image to one other person over the Internet that the applicant "published" an indecent article. Section 578C(1) of the Crimes Act defines "publish" as follows: Publish includes: (a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or (b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or (c) print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act. 112 It does not seem to me that the sending of an image over the Internet to a single person (who did not purchase or hire the image or find it offensive or unwelcome) could be said to be an act of publishing within the meaning of the Crimes Act. I note that in the Commissioner's Reasons he used the word "disseminate", which also appears in the definition of "publish" in s 578C(1) of the Crimes Act. "Disseminate" is defined in the Macquarie Dictionary as: To scatter, as seed in sowing; spread abroad; diffuse; promulgate. 113 The act of sending an image to one person does not, in my opinion, fit the definition of "disseminate". Nor does it fit the definition of "distribute" which connotes "spreading" "dispersing" or "scattering". 114 If the applicant did not "disseminate" the image it could not be said, as it was alleged in the Commissioner's Statement of Reasons, that the applicant "published offensive pornographic material that cannot be legally imported or sold in Australia" and it could not be said that the applicant committed an offence by publishing an indecent article. Applicant's psychological condition 115 The applicant contended that the Commissioner failed to consider or to properly consider his psychological fitness to serve as a police officer. 116 In his Statement of Reasons attached to the Order under s 181D the Commissioner stated: I note your suggestion in your written submissions that you do not agree with the findings of the psychologist and suggest that on the limited basis available the psychologist report is not a fair assessment of you. I am aware that professional psychologists at times only refer to written material in providing an opinion and such opinions are held to be cogent and reliable. I have noted the issues raised by the psychologist in her report. However, legislation vests in me the responsibility for making the determination under s 181D(1). In accord with that duty I have had regard for the psychologist's report, however, that report has only corroborated my own view which I reached after reading and considering the contents of your emails. 117 The psychologist's report referred to in the Statement was that of Ms Garbutt, a Forensic Psychologist employed by the Police Service. She conducts strategic projects and empirical research on behalf of the Special Crime and Internal Affairs Command. Ms Garbutt has held this position since March 2001. Prior to that and since 1995 she was a Police Psychologist employed by the Police Service. Ms Garbutt holds a Bachelor of Arts majoring in Psychology and Sociology, a Master of Arts (Psychology) and a Master of Science in Investigative Psychology. Clearly, the Commissioner found support for his view in the opinion of Ms Garbutt. 118 It is to be noted that in March 1999 and 2000 the applicant attended the SPSU Camp. At the 1999 Camp he underwent psychological testing as part of the ongoing assessment of his suitability to remain a member of the Unit. The psychological assessment of Mr Burrows in March 1999 concluded "no areas of concern were apparent and, therefore, there are no reasons why this officer should not continue with the SPSU". Despite the fact that the applicant invited the Commissioner to have regard to this assessment because "it is far more accurate that (sic) the one offered for this investigation and is based on truthful answers, as opposed to fictitious rubbish", the Commissioner chose not to do so. 119 Ms Garbutt did have access to the results of the applicant's psychological tests carried out at the 1999 SPSU Camp but she was not aware that the applicant was a member of the SPSU and, therefore, did not seek them out. She admitted in cross-examination that the psychological tests administered at the 1999 Camp was something she should have properly weighed up in formulating her opinion as to Mr Burrows' psychological state. 120 Ms Garbutt's written report on Mr Burrows was dated 12 April 2000. Her assessment was based on: · Transcript of interview on 15 December 1999; · Erisp tapes of interview; · Text of the memo between Blackbourne and Burrows; · Pornographic images sent by Burrows. 121 Ms Garbutt did not conduct a face-to-face interview with Mr Burrows in making her psychological assessment. 122 In her conclusions Ms Garbutt stated: It is a concern that an officer of the N.S.W Police Service willingly participated in this behaviour and was not alarmed by the nature of the narrative but himself contributed to it. If he was so easily influenced by his peers it is problematic for an officer to remain in a position where they are exposed to a multiplicity of risks. It is an overall concern that S/C Burrows displayed no control or hesitation in participating in the ongoing narrative and the dissemination of pornographic depictions. 123 It is a fair criticism of the investigation of Mr Burrows, without impugning Ms Garbutt's professional integrity, that if Mr Burrows was to be subjected to a psychological assessment, the more appropriate course would have been to direct Mr Burrows to attend a session with an independent psychiatrist or psychologist who had been provided with all relevant material, including information regarding previous psychological assessments and the pornographic material received and/or sent by officers who had not been removed from the Service. 124 As it happened, lawyers for the applicant requested that Dr J R Strum carry out an independent, face-to-face psychiatric examination of the applicant and this occurred on 23 May 2001. Dr Strum is a consultant psychiatrist with over 20 years experience and with qualifications that include Bachelor of Arts majoring in psychology, a medical degree, a law degree and a diploma of psychological medicine. Dr Strum is a member of the Australian Psychological Society, a Fellow of the Royal College of Psychiatrists, a Fellow of the Royal Australian and New Zealand College of Psychiatrists and a Fellow of the Australian College of Legal Medicine. 125 In his written report of 23 May 2001, Dr Strum said: I am aware of the material which passed between Mr Burrows and Mr Blackbourne and there is no doubt that the material would to most people be offensive. Having said that, I did not form the opinion that Mr Burrows was suffering from a mental illness and nor did I form the opinion that he was suffering from any form of paraphilia. I do not see him, to have pedophilic (sic) tendencies or tendencies towards bestiality. Nor do I see him as a person who would be likely to act out some of the fantasies that were portrayed or written in his letter to Mr Blackbourne … Mr Burrows says it was a situation that snowballed and I believe that this is so. As I have said, it originated from his own childhood difficulties and of his special relationship with Mr Blackbourne. I really do not believe it had any more serious personal implications than that. I do not say this to exonerate Mr Burrows who knows what he did, but to explain his actions and to say that I do not believe that he is a risk to the community or a risk to the NSW Police Service … I believe the episode is behind him and that it is highly unlikely that he would engage in such behaviour again. 126 In cross-examination Dr Strum said: There is no psychiatric reason why he [the applicant] should not be a police officer. If he is not to be a police officer, it is probably going to be of his breach of regulations. I did not find an illness. I did not find something treatable. I found something very stupid and very unacceptable, but I believe he is capable of learning from that, because I do not think it was based on illness but on other things and I do not think he would give any problems as a police officer … 127 Given his qualifications, relevant experience, independence and the fact that he conducted a face-to-face interview of the applicant, I prefer the opinion of Dr Strum to that of Ms Garbutt. In coming to this view I consider that the basis upon which Ms Garbutt formed her opinion of the applicant's psychological condition was deficient. I also have strong reservations about the opinion expressed by Ms Garbutt in her report that it was problematic for the applicant to remain as a police officer where he was exposed to a multiplicity of risks. Ms Garbutt identified these risks in her cross-examination as carrying a gun, dealing with violent people on a daily basis, having a lot of power and the risk of physical damage. If Mr Burrows had been a risk in these ways one would not have expected him to have been declared psychologically fit for service in the SPSU at the March 2000 Camp. Indeed, Ms Garbutt agreed in cross-examination that the risks she referred to were eliminated by the police psychologist's report arising out of the March 1999 Camp. 128 Ms Garbutt's report on the applicant's psychological condition and her questioning of his fitness was not a fair and accurate assessment. This may be attributed to the fact that Ms Garbutt had not been in a position to consider, or did not have at her disposal, all of the material that was relevant. On that basis Ms Garbutt's opinion does not corroborate any decision to remove the applicant from the Police Service. Decision in Gavrilovski 129 It was urged upon me by senior counsel for the Commissioner that in considering the conduct of the applicant I should take into account the decision of the Government and Related Employees' Appeal Tribunal (GREAT) in In the matter of an Appeal No. 191 of 2001 by Peter Gavrilovski against a decision of the Attorney General's Department to dismiss him from employment (unreported, 29 August 2001). In that case the appellant was employed in the Compensation Court as Assistant Operations Manager. He was charged with eight breaches of discipline under s 66(1)(b) of the Public Sector Management Act 1988 and consequently dismissed. The breaches involved the misuse of Departmental equipment to electronically transmit and store messages containing pornographic, sexually suggestive and/or obscene messages, sexually offensive material, racially abusive material and offensive language. It was alleged that the conduct of the appellant was in contravention of the Attorney General's Departmental Code of Conduct, Harassment Prevention Policy and the Policy and Guidelines on the use of email and the Internet. Mr Gavrilovski appealed to GREAT. 130 In its decision the Tribunal said: The appellant's evidence was unsatisfactory in a number of respects. He was evasive in his answers, indicating to us a reluctance to be frank and truthful. We also formed the view that he was unwilling to acknowledge responsibility for his own actions, nor face up to the seriousness of his own misconduct. We are not convinced that he has shown either the appreciation of the need for change on his part, nor a willingness to change. Having carefully considered all the available evidence and the submissions put to us, we are satisfied that the decision the subject of the appeal is consistent with the need to ensure that a public utility such as the Department's e-mail system is used for its proper purpose, that the Department's employees maintain a proper standard of conduct, and that the Department's reputation is not sullied. For those reasons we find the disciplinary response to be entirely appropriate, and we decline to intervene. 131 Whilst Gavrilovski and the present proceedings have in common the sending of offensive pornographic material over an electronic mail system within a public institution, contrary to policy, there are significant differences between the two cases. Mr Gavrilovski gave the appearance of being less than frank or truthful. When asked, he had assured his manager that he had no pornography on his computer. Mr Gavrilovski did not show either an appreciation of the need for change on his part or a willingness to change. None of this was a feature of the applicant's conduct in the present proceedings. Moreover, the proceedings before GREAT were fundamentally different to those before me, not only in terms of the governing statutes but also because of such factors that in Gavrilovski the applicant had admitted the facts contained in the charges, whereas the applicant in the present proceedings has contended that the Commissioner has not made out the grounds for removal and the reasons for doing so had not been substantiated. 132 An important difference between Gavrilovski and the present proceedings was that in the present proceedings it was contended that the applicant had been unjustly discriminated against in circumstances where other police officers had been engaged in the same or similar conduct as the applicant but had not been subject to the same severe sanction as that imposed on the applicant. 133 Whilst I decline to follow Gavrilovski, I note the Tribunal's reference to "a culture" in the Compensation Court that accepted the type of conduct that the appellant had engaged in and that the recipients of Mr Gavrilovski's emails were not offended. The Tribunal agreed with Watson SDP of the Australian Industrial Relations Commission in Micallef and Holden Ltd (unreported, U No. 32791 of 2000, 25 January 2001) where his Honour said at 3: I have had regard to what the applicant described as a culture of acceptance of sexually explicit materials within the respondent company, or parts of its operation. I do not accept that the existence of a culture, the manifestations of which the respondent has made clear are not acceptable, diminishes the inappropriateness of the applicant's conduct. 134 It seems that there was something of a culture in the Police Service of exchanging pornographic material over the Memo System. Hopefully, as a consequence of the investigations that included the applicant, and ongoing monitoring, that culture has been completely eliminated. I should add that I agree with the observations of Watson SDP that the existence of a culture does not diminish the inappropriateness of the applicant's conduct. However, that does not prevent me from taking into account the fact that some 471 officers were identified as sending and/or receiving pornographic material and only three were removed. That required me to consider whether the applicant was treated so differently that it amounted to an injustice. I have concluded that it did. Interests of the Applicant 135 Section 181F(3)(a) provides that in making any decision, the Commission must have regard to the interests of the applicant. 136 In relation to the applicant there was evidence of his past good conduct and good service record. Inspector G Dunn, who was Acting Duty Officer at Deniliquin, described the applicant as "a genuine, honest and reliable and forthright person in both his personnel (sic) and professional role". Sergeant P J Revitt, who was a Shift Supervisor at Deniliquin, said that he had known Burrows as "a most honest and trustworthy person". There was also evidence of Mr Burrows' involvement in community activities. Weight should be given to the applicant's previous record, the expressions of opinion of senior police officers and the applicant's community reputation. 137 There is no reason to doubt that Mr Burrows was a keen, dedicated and honest police officer and that his removal from the Police Service came as a tremendous blow to him and to his family. 138 It is also obvious that Mr Burrows has a strong and genuine desire to be reinstated. The hurt and humiliation Mr Burrows was prepared to endure in pursuing his claim for reinstatement, not to mention that which must have been felt by his wife who sat through most of the proceedings, would have been deeply felt. The relationship between the applicant and his wife was put under considerable strain as a consequence of his removal. 139 At the time he was removed (25 October 2000) Mr Burrows was receiving a salary of $50,727 per annum plus approximately $5,000 per year in shift allowances, overtime and penalty rates. In May 2001 the applicant obtained employment as a ranger with Wingecarribee Shire Council on a salary of $35,000 per annum plus a privately leased motor vehicle. Mr Burrows' removal denied him the opportunity for career progression within the Police Service and the prospect of a higher salary. 140 The removal of the applicant was harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Ltd at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 118. The public interest 141 Section 181F(3) also requires me to have regard to the public interest. 142 The Commissioner has responsibility under the Act for management of conduct within the Police Service. It is an important responsibility, carrying with it the added burden of maintaining the confidence of the Parliament and the people of New South Wales in their Police Service. Any decision by the Commissioner in relation to the management of conduct within the Police Service, including a decision to remove an officer because of his or her conduct, must be treated with the respect it deserves. 143 This does not mean that the public interest is paramount. It is an exercise in balancing the competing interests of the applicant and the public interest: Van Huisstede at [217]. Nor is the Commissioner free to arbitrarily or irrationally remove an officer. The Act itself requires the Commissioner to follow a procedure and to take certain matters into account. Moreover, the Commissioner must exercise the power of removal "according to the rules of reason and justice": R v Anderson; ex parte IPEC-Air Pty Limited (1965) 113 CLR 177 per Kitto J at 189. 144 In the present case, the Commissioner was offended by the pornographic images received and sent by the applicant and understandably so. The Commissioner described the dialogue in the text memo as "extremely disgusting" and I could not disagree with that description. 145 On a superficial analysis, confined merely to a consideration of the offensive pornographic material with which the Commissioner was confronted, there is a strong temptation to adopt the view that in protecting the integrity of the Police Service and in meeting the expectation of the community, the Commissioner was justified in removing Mr Burrows. In other words, Mr Burrows admitted receiving and sending pornographic material over the Police Service Memo System; the material was highly offensive; use of the Memo System to send and receive pornographic material was contrary to Service guidelines; the applicant was aware of the guidelines. What more is to be considered, it may be asked? Summary of conclusions 146 In applying the principles of reason and justice, however, I am compelled to have regard to the following matters: 1) Arising out of his inappropriate use of the Police Service Memo System, the applicant was initially suspended by his Regional Commander for one month in December 1999. After serving his suspension the applicant was returned to full duties as an Acting Sergeant. The applicant was not advised of any ongoing investigation into his conduct. In March 2000, the applicant attended the SPSU Annual Camp. He was given a clean bill of health as to his psychological and physical fitness to remain as a member of the SPSU. It was not until May 2000 that the applicant was informed that Internal Affairs had nominated him for action under s 181D of the Act. Nominations for action under s 181D had previously been the responsibility of the Regional Commander. There was no satisfactory explanation as to why the responsibility for such nominations had changed and, therefore, it raises questions of fair dealing in relation to the treatment of the applicant. Moreover, the manner in which the applicant was dealt with after his initial suspension and the delay that occurred was unreasonable. 2) There were 471 officers, of ranks up to and including Inspector, who were detected as receiving and/or disseminating pornographic material over the Memo System. Of these 471 officers 462 were dealt with at Local Area Command level and nine were referred for action under s 181D. In respect of six of the officers nominated for action under s 181D advice was provided to the Commissioner that their involvement was no different to the other 462 officers dealt with at the local level and they were issued with warnings by the Commissioner. Three officers, including Mr Burrows, were removed. There was no proper basis for removing the applicant for sending and/or receiving pornographic material where many other officers, including more senior officers, had been involved in the same conduct as the applicant yet they were not removed from the Service. Indeed, it could be said that in respect of some of the other officers, their misconduct in sending and/or receiving pornographic images was even grosser than that of the applicant. If the Commissioner had been fully and accurately appraised of the extent and nature of the conduct of other officers he may have arrived at a different view as to the sanction to be imposed on the applicant. If the applicant had been fully informed of the nature and extent of the conduct of other officers he may have been better able to defend himself against the allegations in the Commissioner's Notice. 3) Whilst the dialogue in the text memo transmitted between the applicant and Blackbourne was disgusting and revolting, so were the collection of pornographic images sent by other police officers who were not removed from the Service for their conduct. Moreover, Mr Burrows was not the only officer who was engaged with Blackbourne in exchanging pornographic memos yet the other officer only received a warning for her conduct. 4) It cannot reasonably be contended that Mr Burrows' culpability was greater than other officers for the reason that he continued to transmit pornographic material after receiving the state wide memo on how the electronic mail system was to be used, when it was the case that all officers were sent the same memo and a disconcerting number of them continued to send and/or receive pornography over the same Memo System used by Mr Burrows. 5) There was insufficient evidence to support the allegation made in the Commissioner's Statement of Reasons that the applicant received and disseminated offensive pornographic material on the Police Service Memo System that had been properly classified by the Office of Film and Literature under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) as 'Refused Classification', 'Category 1 restricted' or 'Category 2 restricted'. In other words, the charges (in this case the grounds contained in the Commissioner's Notice) on which the removal was based were not made out: see NSW Public Service Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46 at 52 per Cahill VP. 6) There was insufficient evidence to support the allegation made in the Commissioner's Statement of Reasons that the applicant published an indecent article in breach of s 578C(2) of the Crimes Act 1900 (NSW). Again, the charge against the applicant was not made out. 7) There was no evidence that the text memo had been classified by the Office of Film and Literature, let alone classified as Category 2 and so the Commissioner was under a misapprehension as to the status of the text memo under the Classification (Publications, Films and Computer Games) Act. 8) Whilst the text memo was put together over a prolonged period the evidence was that other police officers engaged in sending and/or receiving pornographic images and accompanying text memos extended over an even longer period. I do not regard the fact that the construction of the text memo over a five months' period is a factor that distinguishes the applicant's conduct from a number of other officers involved in the transmission of pornographic material but who were not removed from the Service. 9) There was no evidence that persons receiving the pornographic material sent by the applicant found it offensive or unwelcome. 10) The opinion of the Forensic Psychologist employed by the Police Service, Ms Garbutt, does not corroborate any decision to remove the applicant from the Police Service. I prefer the opinion of the independent consultant psychiatrist, Dr Strum, that the applicant is not a risk to the community or a risk to the NSW Police Service, that the episode is behind him and that it is highly unlikely that he would engage in such behaviour again. 11) The applicant's past good conduct and the professional and character support he received militates heavily in his favour. 12) The personal and economic consequences for the applicant of his removal were harsh. 147 For the foregoing reasons, I have concluded that the removal of the applicant from the Police Service was harsh, unreasonable and unjust. I so find. However, in weighing up the applicant's interests and the public interest, the reception and transmission of highly offensive pornographic material over an internal electronic mail system by a police officer in breach of guidelines for the use of that system is completely unacceptable, despite the fact that the material was for private consumption. The suspension imposed on the applicant of one month with pay was an inadequate response to such conduct. On the other hand, in all of the circumstances, removal from the Service was too harsh: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ. 148 I propose to order that Paul Andrew Burrows be reinstated from the date of this decision. PART D. GIARDINI – BACKGROUND FACTS, EVIDENCE AND SUBMISSIONS 149 The notice to Mr Giardini pursuant to s 181D(3)(a) of the Act ("the Notice") was in the following terms: Notice under Section 181D (3)(a) of the Police Service Act 1990 The Commissioner's Confidence provisions allow for the Commissioner of Police to remove an officer where he has lost confidence in their suitability to remain a Police officer. This is determined by the Commissioner on the basis of one or more of the following criteria: conduct, integrity, performance or competence. In accordance with Section 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I do not have confidence in your suitability to continue as a police officer taking into account the criteria of your conduct and on the following grounds: On 7 November, 1999 you introduced and disseminated on the Police Service Memo System a "Refused Classification" pornographic video attachment. Between 23 August, 1999 and 18 November, 1999 you introduced and disseminated on the Police Service Memo System "Category 1" and "Category 2" classified material. Between 16 September, 1999 and 5 January, 2000 you introduced and disseminated unrestricted inappropriate material on the Police Service Memo System. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under Section 181D of the Police Service Act 1990. In accordance with section 181D(3)(b) of the Police Service Act, 1990, prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. Attached is a copy of the submission provided to me in this matter. Your response should be delivered to my Office, Level 18, Police Headquarters, 14-24 College Street, Darlinghurst 2010. P J RYAN Commissioner of Police Dated: 9.10.2000 150 On 10 November 2000 Mr Giardini provided an 18-page response to the Commissioner's Notice. The response was prepared with the assistance of Mr Giardini's solicitor. The response addressed the following pertinent matters: 1) The only documents provided to the applicant were the Notice and a document entitled "Commissioner's Confidence Submission." The applicant requested that if any other material was referred to by anyone when the s 181D process was undertaken, or referred to by the Commissioner, the applicant be provided with a copy or access to such material. The applicant referred particularly to the record of interview conducted by investigators from Internal Affairs on 17 March 2000. 2) Removal under s 181D was to be used only in the most extreme cases. The applicant's case was not extreme. 3) The applicant deeply regretted his actions and agreed his conduct was inappropriate and in poor taste. However, he was not a deviate or disreputable person. He did not see at the time or even when he was interviewed that what he had done was a serious matter. 4) The applicant's personal background. This included the fact that he was supporting three children; his sporting career; his police career including commendations which included a 'Commissioner's Commendation' for courage and devotion to duty; his completion of a degree in Bachelor of Policing – Investigation; his promotion to Detective Senior Constable; his involvement in pursuing paedophiles. 5) The applicant referred to his use of a home computer to email fellow rugby league players about details of games, etc and how his use of the computer developed into sending jokes to players and supporters. The applicant described how he began sending pictures over the Internet and the Police Service Memo System. The applicant said that at no time did he receive any complaints from recipients of his emails. He said he would often send emails "out to lists" and ask recipients if they would like to be removed from the lists. 6) The applicant believed that police officers would more likely to be less offended by a pornographic picture than a member of the public due to the nature of the job. 7) The applicant regretted sending the emails; at no time did he intend to be malicious. The applicant now understood the seriousness of what he had done and the consequences he was facing. 8) The applicant sought another chance to prove his worth as a police officer. 151 The Commissioner did not accept the applicant's explanation of his conduct and made an Order pursuant to s 181D(1) in the following terms: Order under Section 181D (1) of Police Service Act 1990 I, Peter James Ryan, Commissioner of Police, having considered your conduct and integrity, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Service. In reaching my decision, I have taken into account a submission prepared in relation to you, the Notice served upon you on 24 October, 2000 pursuant to section 181D(3)(a) of the Police Service Act and the written submissions furnished by you through your solicitors. I have carefully considered the matters raised by you in response to the grounds particularised in the Notice. The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this Order. P J RYAN Commissioner of Police Date: 16.11.2000 152 The Commissioner subsequently issued an amending order, deleting reference to 'integrity' so that the removal of the applicant was limited to reasons related to his conduct. Commissioner's reasons for removing the applicant 153 Attached to the Order removing the applicant from the Police Service was a Statement of Reasons (pursuant to s 181D(4)) in the following terms: STATEMENT OF REASONS I am required to make a determination under s 181D(1) of the Police Service Act 1990 in respect of whether I have confidence in you as a member of the Police Service. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself, together with a Notice served upon you on the 24 October, 2000 pursuant to s181D(3)(a) of the Police Service Act 1990, together with written submissions provided on your behalf by your solicitor. The grounds set out in my notice to you under s181D(3)(a) of the Police Service Act 1990, refers to the criteria of your conduct and is set out as follows, 'On 7 November, 1999 you introduced and disseminated on the Police Memo System a "Refused Classification" pornographic video attachment". Further, 'Between 23 August 1999 and 18 November 1999, you introduced and disseminated on the Police Service Memo System "Category 1" and "Category 2" classified material'. Further, 'Between 16 September, 1999 and 5 January, 2000 you introduced and disseminated unrestricted inappropriate material on the Police Service Memo System'. There is material before me which discloses that you disseminated offensive pornographic material on the Police Service Memo System that has been classified by the Office of Film and Literature Classification under the Classification (Publications, Films and Computer Games) Act 1995 as 'Refused Classification' and 'Category 2 Classification'. The significance of your behaviour is that you have published offensive pornographic material that cannot be legally imported or sold in Australia as well as publishing an indecent article in breach of section 578C(2) of the Crimes Act 1900, which is criminality. Your actions introduced a large amount of this indecent and offensive material to the Police Memo system via your email address of rick01@ozemail. I also take into account that on 17 June 1999 you were spoken to by senior police on two occasions in relation to the sending of "inappropriate material" to officers on the Police Memo System. At that time you were reminded of your responsibilities and warned about such behaviour. However, you have not taken note of that advice and warning, as the conduct that has brought you under notice occurred subsequent to that date. I note that you admitted your conduct when you were interviewed, indicating that you had not considered the consequences of your actions, also that you considered the memo system to be private and as you did not consider the material offensive. This was in spite of the fact that you had already been spoken to about this type of behaviour. The matters I have referred to in the preceding paragraphs have heavily influenced my decision. You have indicated that you will not reiterate the issues which are the basis for this action under s181D of the Police Service Act. You suggest that they have been fully ventilated in your interviews, details of which are set out in the material before me. I accept that you did not consider that your behaviour was inappropriate when you acted in that manner, or even when you were interviewed about the same, however, you now realise the significance of these issues. I have noted your comments that you were introduced to this pornographic material through your police duties whilst investigating paedophile activities. However, I cannot see any basis for you to introduce that type of offensive material into the police system. In mitigation you have set out highlights of your career in the Police Service and I have taken account of the matters you have raised. I have taken into account in making my decision your excellent career, however the nature and extent of your behaviour cannot be negated by your previous good work. In coming to that conclusion I am extremely disappointed that an officer with your record has destroyed that standing by engaging in the behaviour which you have admitted. As I set out at the commencement of these Reasons, I am compelled to decide whether I have confidence in you. I have reviewed your written submissions, however they have failed to negate your behaviour and I hold the view that you have grossly misused the Police Internal Memo System. I have a duty to the people of this State to ensure that police officers act appropriately. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service. P J Ryan Commissioner of Police Date: 16.11.2000 154 It may be seen from the Statement of Reasons that after referring to the three grounds set out in the Commissioner's Notice, the Statement refers to the classification of pornographic material allegedly disseminated by the applicant, such classification allegedly carried out by the Office of Film and Literature under the Classification (Publications, Films and Computer Games) Act. It was further alleged that in disseminating the material, the applicant published an indecent article in breach of s 578C(2) of the Crimes Act. Importantly, the Commissioner indicated that he had taken into account that the applicant had been spoken to by senior police officers on two occasions about sending "inappropriate material" to officers over the Police Service Memo System but that the applicant had not taken notice of the advice and warning he had been given on those occasions. This was one of the matters that "heavily influenced" the Commissioner's decision to remove the applicant. 155 I propose to deal with the Commissioner's reasons for removing the applicant in more detail after outlining the respective parties' cases. The case for the applicant 156 Mr B G Docking of counsel appeared for Mr Giardini. Mr Docking's submissions followed a similar structure to that he adopted in respect of the applicant Burrows. Mr Docking's main contentions – and the ones I intend to focus on - in support of the claim that the removal of Mr Giardini was harsh, unreasonable or unjust may be summarised as follows: 1) The applicant had been in the Police Service for 12 years. The applicant, in the words of the Commissioner, had an "excellent career" in the Service. The applicant had been commended and complimented a number of times throughout his career for his courage, professionalism and dedication. 2) The Commissioner refused to call a Superintendent Rafferty. Superintendent Rafferty was one of the senior officers who allegedly spoke to the applicant about the sending of inappropriate material over the Memo System. There were important factual disputes in relation to this issue. The Commissioner's failure to call the Superintendent was a serious omission and it can be taken that nothing Superintendent Rafferty could have said in evidence would have helped the Commissioner in defending the validity of the Commissioner's reasons for removing the applicant. 3) Detective Inspector A M Purcell gave character evidence for the applicant. The original statement that Mr Purcell was to have made was changed to a shorter statement after he was told by his Commander to reconsider a few points. The applicant had also sent Mr Purcell material of a "soft pornographic nature" over the Memo System. Mr Purcell, who at the time was a Detective Sergeant stationed at the same location as the applicant, did not tell the applicant not to send anymore of the pornographic material. Mr Purcell had been counselled about receiving the material but received no sanction or penalty. The Commissioner, in making his decision to remove the applicant, was not made aware that senior officers had received pornographic material over the Memo System and had failed to stop the conduct. 4) The Commissioner's decision-making process was rendered nugatory in that in removing the applicant the Commissioner had regard to grounds that were not identified in the Notice and in respect of which the applicant was not given an opportunity to respond. The additional grounds were: · That publication of offensive pornographic material was in breach of the Crimes Act; · That the Commissioner was "heavily influenced" by "I also take into account that on 17 June 1999 you were spoken to by senior police on two occasions in relation to the sending of inappropriate material to officers on the Police Memo System". 5) There was an inordinate delay in dealing with the applicant's alleged misconduct. It took seven months between the time the applicant was interviewed by Internal Affairs and the time he was issued with a Notice under s 181D(3)(a). During this time and up to the time of his removal on 27 November 2000 the applicant performed unrestricted duties. This included secondment to the Dignitary and Athlete Protection Unit formed in relation to the 2000 Olympic Games. Even after the applicant was removed he was still required to attend courts as a witness of truth and to assist in brief preparation. 6) The evidence was that 471 members of the Police Service were detected as receiving and/or sending pornographic material over the Police Memo System. Only three members were removed in relation to this conduct. Retained officers were much more culpable than the applicant. The differential treatment of Mr Giardini amounted to procedural and substantive unfairness and caused his removal to be harsh, unreasonable or unjust. 7) The Commissioner failed to make out the grounds and reasons upon which he decided to remove the applicant. 8) The applicant's removal was far too severe a penalty. 9) The applicant should be reinstated without loss. Alternatively, the applicant should be reinstated with the loss of a few months' pay. In the further alternative, the applicant should receive the maximum amount of compensation. Case for the Commissioner 157 Mr J J Graves SC with Mr G M Galluzzo of counsel appeared for the Commissioner. 158 Mr Graves for the Commissioner, made submissions the main points of which may be summarised as follows: 1) The reasons why the Commissioner removed the applicant from the Police Service were: a. The applicant introduced and disseminated on the Police Service Memo System inappropriate pornographic material. In doing so the applicant was in breach of s 578C(2) of the Crimes Act; b. The applicant introduced a large amount of offensive material into the Police Service Memo System via his home email address; c. In June 1999 the applicant was spoken to by senior police in relation to sending inappropriate material to officers on the Police Memo System and the applicant was reminded of his responsibilities and warned about sending inappropriate material; d. The applicant admitted his conduct in the receiving and dissemination of inappropriate material on the Memo System and that he did not consider the consequences of his actions and was of the view that the material was not offensive; e. The Commissioner took into account the subjective matters raised by the applicant in his response to the Notice under s 181D(3)(a) including the applicant's "excellent career"; f. The applicant admitted receiving and sending a number of pornographic images to over 60 recipients. In particular, the applicant admitted receiving and sending an article titled 'eel 2.mpe' which the applicant admitted displayed an act of bestiality. The Office of Film and Literature classified the article as RC. This classification supports the assertion that the article was indecent. 2) The following additional evidence should be considered: a. The applicant agreed that the emails and pornographic attachments were going to be opened on a Police Service Computer and that the majority of monitors that display the pornographic attachments were located in common areas within the police buildings; b. The applicant agreed that on one or more occasions a sworn or unsworn member of the Police Service may have inadvertently come across a monitor displaying a pornographic image that was totally unsatisfactory workplace environment; c. The applicant agreed that it would not be appropriate for a member of the public to see pornographic images on the screen or members of the Police Service looking at monitors displaying inappropriate images; d. The applicant admitted that he was aware of a policy statement of the NSW Police Service in respect of the use and abuse of the Police Service Memo System but he was not aware of it when he received the policy. It was open to the Commission to find that the applicant was being evasive. The applicant agreed that his conduct was a departure from the policy statement. 3) It was further submitted that: a. As to the applicant's submission regarding the Commissioner's failure to call Superintendent Rafferty, there was nothing the Superintendent could have said in evidence that would have been relevant to the Commissioner's case. Further, there was no impediment to the applicant calling the Superintendent. b. The fact that another officer, no matter what the rank, conducts himself or herself in a similar manner to the applicant does not provide a reason for the Commissioner to stay his hand and not remove the applicant. c. If documents were not provided to the Commissioner to consider in making his decision to remove the applicant, the Commissioner did not rely upon them and there is no substance in the submission by the applicant that the applicant should have been shown certain documents if the Commissioner did not rely on those documents. d. Where a police officer makes no submission to the Commissioner or makes a submission that does not provide the Commissioner with information that calls into doubt or question the probative value of documents and other material on which the Commissioner has relied or does not excite the Commissioner's discretion to make a removal order, the order will be made. e. The applicant in his response prepared in conjunction with his lawyers made no relevant objection or complaint of unfairness or injustice or unreasonableness on the part of the Commissioner. f. The Commissioner relied on each and every transmission of pornographic filth to each and every member of the Service who received the pornography. In this respect there was no unfairness or duplicity. g. There was no relevant delay in dealing with the applicant. Even if there were such a delay, the applicant suffered no prejudice. h. As to the applicant's submission that he suffered differential treatment, the Commissioner only considered the conduct of three police officers in the context of s 181D(1) and removed them all. i. Contrary to the applicant's submission his misconduct was not victimless. The "victims" were: loss of public confidence in the Police Service; the lessening of good order and discipline in the Police Service; the "third" person, adult or child, intentionally or inadvertently exposed to the applicant's pornography. j. The Commission should follow the decision in Gavrilovski. k. The fact that the Commissioner made an error in his Statement of Reasons to the extent that there was no category 2 classification made by the Office of Film and Literature is relevant but not significant because some of the pornography disseminated by the applicant was category 2 material. In any event the applicant adduced no evidence that challenged the factual accuracy of the grounds in the Notice. In these circumstances, the Commissioner's misstatement of fact in his Statement of Reasons is of no moment whatsoever. l. The applicant's reliance on Van Huisstede v Commissioner of Police (2000) 98 IR 57 was, for a range of reasons, misplaced. Submissions in reply 159 I referred earlier in relation to the Burrows application to the submissions made in reply by the parties. The submissions were also relevant to the Giardini application. PART E. CONSIDERATION - GIARDINI 160 I observed in relation to the Burrows application that I regarded the pornographic material received and sent by the applicant as highly offensive. The same can be said of the material produced in evidence in the Giardini application. Nevertheless, as I noted in relation to the Burrows application, there is more to be considered than the fact that the applicant, Giardini, was involved in introducing, sending and receiving pornographic material over the Police Service Memo System. Applicant's good conduct 161 There was no dispute that the applicant was a good police officer. The evidence, including character evidence and evidence relating to his work performance revealed that the applicant was a keen, dedicated, honest officer who carried out his tasks in a professional manner. He had been commended and complimented on a number of occasions during his career. 162 In his Statement of Reasons, the Commissioner acknowledged the applicant's "excellent career" and took it into account. The Commissioner said, however, that "the nature and extent of your behaviour cannot be negated by your previous good work." The question is whether in fact the applicant's conduct was such as to negate his previous good record. That is a matter for me to consider but it must be said that the applicant's good record is something that I take into account in the applicant's favour. Delay in dealing with applicant's alleged misconduct 163 The investigation into the inappropriate use of the Police Service Memo System was sparked by a complaint made by a Superintendent Harrison in November 1999. Internal Affairs first interviewed the applicant about the inappropriate use of the Memo System on 17 March 2000. In that interview the applicant admitted sending pornographic material from his home computer to various recipients over the Memo System. On 28 March 2000 Sergeant Paul Skuratowski of the Internal Affairs Investigation Unit, who was present at the interview of the applicant, signed a report into the investigation of the complaint against the applicant and recommended that "an application for Section 181D for removal of Senior Constable Giardini be submitted for consideration by the Commissioner of Police." On 3 May 2000 the Commander of the Investigation Unit, Internal Affairs certified that he agreed with Sergeant Skuratowski's recommendation. The Commissioner signed the Notice under s 181D(3)(a) on 9 October 2000. On 16 November 2000, the Commissioner signed the Order removing the applicant from the Police Service from that date. 164 It does seem quite extraordinary that 12 months elapsed between the time a complaint was first made about the inappropriate use of the Memo System and the time the Commissioner removed the applicant for his involvement. During the whole of this time the applicant continued to perform his full duties and did so, it appears, at times as an Acting Sergeant. What is more, during this period the applicant was seconded to the Dignitary and Athlete Protection Unit associated with the 2000 Olympic Games. In that role the applicant provided security for various dignitaries including Heads of State and Prime Ministers. 165 The largest gap where nothing appears to have occurred was between May 2000, when Internal Affairs issued the removal recommendation, and October 2000 when the applicant was issued with the Notice under s 181D(3)(a). There was no satisfactory explanation as to why it would take five months to act on the Internal Affairs recommendation and, in the meantime, allow the applicant to continue to carry out his full duties and act in the sensitive role of providing security for visiting dignitaries in circumstances where it had already been recommended that the Commissioner consider his removal from the Police Service. 166 In Newton v Commissioner of Police (1998) 85 IR 119 at 131 Peterson J referred to the Minister's Second Reading Speech to the 1997 Bill to amend the Police Service Act 1990 where it was said: The old system clearly did not work. It was cumbersome, protracted and legalistic … In November 1996 this Parliament threw out the old system. … The provisions which came into effect on 16 December 1996 were, as I said at the time, exceptional, designed to deal with an exceptional situation. The appeal rights were, to put it simply, that the exercise of the commissioner's power to dismiss was subject to a limited review by the Supreme Court on administrative law or judicial review principles. … The result is a process that retains the commissioner's power to ensure that the service is able to quickly free itself of those who fail to live up to professional standards of integrity, competence and behaviour, but also protects against injustice. It is that simple – the bill is anti-corruption but also anti-injustice. The bill accommodates the unique nature of policing, overcomes the problems of past appeal processes, and puts the police officer on a similar footing to other employees under the Industrial Relations Act . 167 The fact that it takes five months from the time when a removal recommendation is made to when a Notice is issued is hardly consistent with a legislative scheme that purportedly allows the Service to "quickly free itself" of those who fail to meet proper standards. 168 I note the comment in the Second Reading Speech that police officers are to be regarded as being on a similar footing to other employees under the Industrial Relations Act. If an employee in the private sector had to wait eight months between the time he or she was interviewed about some alleged misconduct and the time he or she was eventually dismissed and, in the meantime, the employee continued in employment as though nothing had happened, it would be a rare case indeed that the dismissal would be found to have been justified. 169 In Owens v New South Wales Police Service (1998) 87 IR 1 Schmidt J found "there was an inordinate delay in the question of Mr Owens' continued employment being dealt with by the police service, during which period Mr Owens continued to work as a police officer in a most commendable manner". The delay extended over a period of some 16 months. This delay, coupled with deficiencies associated with the process leading to the applicant's removal, led Schmidt J to find that the dismissal was harsh. Her Honour ordered five months' compensation to be paid to the applicant. 170 Mr Graves contended that the applicant's misconduct was brought to the Commissioner's attention on about 9 October and according to the Order under s 181D(1) he was removed on 16 November 2000. Hence, Mr Graves submitted, there was no delay. I do not accept this contention. The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the Police Service: s 8(1) of the Act. This includes the whole of the investigative and other procedures that are in place and which enable the Commissioner to arrive at a decision as to whether he has confidence in the competence, integrity, performance or conduct of a police officer. It is very clear, in my opinion, that if a police officer, in putting his or her case for review of the Commissioner's decision to remove that officer, contends that the procedure followed by the Commissioner was deficient to the extent that there was an unreasonable delay between the time when an officer was interviewed about his or her misconduct and the time when the officer was eventually removed, the Commission is entitled to consider whether or not that was the case. 171 Mr Graves further contended that the applicant did not raise the issue of delay in his response to the Commissioner's Notice and, in any event, the applicant suffered no prejudice even if there was a delay. This issue of the applicant's failure to raise matters in his response was a defence employed by the Commissioner in respect of a number of submissions put by the applicant. Mr Graves said in his written submissions: Where the police officer makes no submission to the Commissioner or makes a submission to the Commissioner that does not provide the Commissioner with information that probatively calls into doubt or question the documents and other material on which the Commissioner has relied or does not excite the Commissioner's discretion to decline to make a removal order, the order will be made. 172 If this contention means that not only would the order be made but also that it would not be open to challenge in the Commission because the applicant in his or her response to the Notice did not call into question material relied upon by the Commissioner, it cannot be right. If it were right it would mean that if the applicant was not aware of a deficiency or error in material relied on by the Commissioner and, therefore, the deficiency or error was not brought to the Commissioner's attention in the officer's response to the Commissioner's Notice, the order would, nonetheless, remain valid and not open to challenge. 173 As to the question of prejudice, I consider that the applicant, having been interviewed about his alleged misconduct in March 2000, having not been advised of the course the matter might take, having not been informed by Internal Affairs investigators that he had been recommended for action under s 181D, having remained on full duties and in a state of uncertainty about his future and then, seven months later, being informed that the Commissioner no longer had confidence in his suitability to continue as a police officer, was treated quite unreasonably. That the applicant was ultimately given an opportunity to respond to the Commissioner's Notice of loss of confidence does not, in my opinion, overcome the unreasonableness of the applicant's treatment in the meantime. Applicant's differential treatment 174 The investigation by the Police Service into the misuse of the Memo System, and which led to Mr Giardini's removal, was the same investigation described earlier in relation to Mr Burrows. That is, the evidence indicated that there were 471 officers, of ranks up to and including Inspector, who were detected as receiving and/or disseminating pornographic material over the Memo System. Of these 471 officers 462 were dealt with at Local Area Command level and nine were referred for action under s 181D. In respect of six of the officers nominated for action under s 181D advice was provided to the Commissioner that their involvement was no different to the other 462 officers dealt with at the local level and they were issued with warnings by the Commissioner. Three officers, including Mr Burrows and Mr Giardini, were removed. 175 In respect of Mr Burrows, the evidence showed that at least in terms of the number of pornographic messages sent and their alleged classification by the Office of Film and Literature, there were other officers whose culpability was the equal of, if not greater than, Mr Burrows yet they were not removed from the Service. A similar picture emerges from the evidence in respect of Mr Giardini. 176 Additionally, the evidence was that at least six officers senior to Mr Giardini, including officers at the rank of Inspector, were recipients of pornographic images sent by Mr Giardini and, therefore, were aware of the applicant's inappropriate use of the Memo System but took no action to stop it. One of the officers, a Detective Sergeant, who was a recipient of pornographic material from the applicant, was Mr Giardini's direct supervisor. A policy had been in place since February 1999 regarding the use of the Police Service Memo System and this policy had been promulgated to all officers. The policy was updated and re-published in September 1999. Additionally, the Commissioner issued a memo sometime after investigations began into the misuse of the Memo System in November 1999 that "Those who condone or fail to stop this activity could also face disciplinary action." 177 The evidence was that when the applicant was served with the Commissioner's Notice he also received a copy of the Commissioner's Confidence Submission. It is to be noted that the Submission did not include the record of interview of the applicant in March 2000 by Internal Affairs or the Complaints File that was established in relation to the applicant (CIS File 00001185). The extent of the information in the Confidence Submission relating to the involvement of other officers in the misuse of the Memo System was that: · Between 23 August 1999 and 5 January 2000 the applicant disseminated pornographic material to between 55 and 68 officers via the Police Service Memo System; · Initial inquiries into the use of the Memo System "resulted in the suspension of numerous Police Service Memo mailboxes whilst inappropriate material was retrieved for evidentiary purposes"; · On 17 November 1999 Sergeant Norman Chisholm of Gladesville Police Station inadvertently sent Superintendent Glenn Harrison a pornographic image. 178 The evidence of Detective Inspector Champion, whose responsibilities included the management of Commissioner's Confidence action pursuant to s 181D, was that: In respect to six of the officers nominated for section 181D action, advice was provided to the Commissioner that their involvement was no different to the other 462 officers dealt with other than by s 181D action. Accordingly, the Commissioner issued those officers with warnings. In respect to the other three officers nominated for section 181D, Blackbourne, Burrows and Giardini, they were considered by the Commissioner to be in a different category, the later (sic) because he was responsible for introducing the pornographic material into the Memo system through his private mail box and the former because of the nature of the memo document they were involved with. 179 None of this information or advice provided to the Commissioner was contained in the Commissioner's Confidence Submission. Consequently, it is evident that: 1) In making his order removing the applicant, the Commissioner took into account relevant material that was not made available to the applicant, that is information that showed the extent of involvement of other police officers in misusing the Memo System, and; 2) The applicant was denied the opportunity to properly respond to the allegations against him in that he was not provided with material that could have assisted him in meeting the allegations against him. That is, if the applicant had been given access to the material available to the Commissioner he could have sought to make out a case that his conduct was no different from that of many other officers and that there was no basis for putting the applicant in a different category. 180 As the applicant submitted, the Commissioner was aware that between 55 and 68 officers had received inappropriate material from the applicant over the Police Service Memo System. The Commissioner failed to inform himself as to: 1) The ranks of these other officers and their supervisory position in relation to Mr Giardini; 2) Whether these officers condoned or stopped the activity. 181 In particular, the Commissioner did not read the transcript of the record of interview of the applicant by Internal Affairs. The transcript would have informed the Commissioner that the applicant had sent pornographic material to at least one superior officer, namely his direct supervisor, who took no action to stop the applicant's conduct. 182 Further, the evidence was that the Commissioner was able to make a judgment that Mr Giardini was in a different category to all of the other officers involved in misusing the Memo System, except for Burrows and Blackbourne. To make such a judgment, which carried with it very significant implications for Mr Giardini, it is reasonable to expect that the Commissioner would have had regard to the conduct of other officers, including that at least six officers senior to Mr Giardini were involved in receiving pornographic material from the applicant but took no steps to stop the conduct. None of those officers were dealt with any more severely than having received counselling or a warning. In having regard to the material, the Commissioner should also have realised that a number of other officers were at least as culpable as the applicant in their involvement with sending pornographic material over the Memo System. If the Commissioner did in fact have regard to this material but proceeded, nevertheless, to remove Mr Giardini then I consider his decision to do so was unjust. If the Commissioner did not have regard to the material upon which he could base a judgment that Mr Giardini fell into a "different category", contrary to the evidence of Detective Inspector Champion, then I consider that the Commissioner did not make an informed decision as to the applicant's removal. The relevant material to which the Commissioner could have paid regard was readily available to him. 183 Under the heading 'SOURCE DOCUMENTS', The Commissioner's Confidence Submission referred to the 'CIS FILE 00001185' and the 'Transcript of ROI between Detective Inspector K. McKAY and Detective Senior Constable GIARDINI'. In his response to the Commissioner's Notice, Mr Giardini sought a copy of these documents; the applicant said that to deny him access to the documents would be to deny him procedural fairness. The documents were not provided to the applicant. Despite the fact that the documents he sought were not provided to the applicant, it was reasonable for him to assume that the Commissioner would have read the documents and taken them into account. After all, the documents were described as 'source documents'. Based upon this assumption it would seem that Mr Giardini took the view in preparing his response to the Commissioner's Notice that: The three (3) grounds each relate to material I sent and disseminated over the Internet. I have already been interviewed in relation to each matter, and I do not propose repeating herein what I said in those interviews. 184 The applicant's apparent assumption that the Commissioner would have read the transcript of the record of interview was, according to Detective Inspector Champion's evidence, wrong because the Commissioner had not in fact read the transcript. So the apparent assumption on the applicant's part that the Commissioner would have seen, for example, a reference in the transcript to the fact that the applicant had sent pornographic material to his direct supervisor, was also wrong. If the Commissioner had seen this reference it may well have alerted him to the potential to cause injustice by removing the applicant in circumstances where more senior officers were aware of Mr Giardini's activities but took no action to stop it. This exemplifies the problem caused by a failure on the Commissioner's part to be fully informed of all of the relevant available material before deciding to remove an officer. 185 I turn to the contention that the applicant was in a different category to other officers who were involved in the misuse of the Memo System and that this justified his removal. The primary reason advanced by Mr Champion in his evidence as to why the applicant was in a different category was "because he was responsible for introducing the pornographic material into the memo system through his private mail box." In cross-examination, however, Mr Champion agreed that Mr Giardini was not the only member of the Police Service who used his private mailbox to send pornographic material to officers on the Memo System, however, Mr Champion did not know how many. Thus, there was nothing unique or different about the applicant's conduct in introducing pornographic material onto the Memo System from a home computer. 186 Furthermore, in my opinion, the primary reason for placing Mr Giardini in a "different category" and, therefore, using that to justify removal, was irrational. What is the difference between on the one hand, Mr Giardini introducing pornographic material onto the Police Service Memo System via an electronic message from his home computer and, on the other hand, another police officer using his or her terminal on the Police Service network to introduce pornographic images by downloading from another site or from a disk? Not all of the pornographic material in the evidence was shown to have originated from an external source. It was also introduced from terminals within the Police Service network. The material must have been introduced into the network by downloading it from some other source. 187 In my opinion, the failure of the Commissioner to take into account the transcript of the applicant's record of interview and the CIS File 00001185 meant that the Commissioner was not fully informed when he came to make his decision about the applicant's removal. 188 Overall, I consider that there was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust: Federated Municipal & Shire Council Employees' Union of Australia, NSW Division v Liverpool City Council (1988) 25 IR 246 at 249 per Glynn J; Pastrycooks, Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 1) (1990) 35 IR 51 at 98 per Hungerford J. Alleged warnings to applicant on previous occasions 189 In his Statement of Reasons for removing the applicant the Commissioner said that he had been "heavily influenced" by, amongst other things, the alleged fact that the applicant had been spoken to by senior officers on two occasions in relation to sending "inappropriate material" to officers on the Police Service Memo System. It was said that the applicant had been reminded of his responsibilities and warned about such behaviour but he had not taken note of the warnings. 190 The allegation about the applicant being previously warned and not taking heed of the warnings was not referred to in any of the three grounds in the Commissioner's Notice to the applicant. The applicant contended, in effect, that if the Commissioner was so "heavily influenced" by the alleged warnings and that the applicant had not taken note of them, this should have constituted a ground in the Commissioner's Notice. 191 The allegations about the warnings were contained in the Commissioner's Confidence Submission in the following terms: A Management Issues Report dated 17 June, 1999 indicates GIARDINI was spoken to by senior police twice in relation to "sending inappropriate material" to officers on the Police Memo System. GIARDINI was reminded on that date of his responsibilities in using the memo system in a professional manner. When interviewed on 17 March, 2000, GIARDINI conceded he had been warned on two previous occasions regarding inappropriate use of the Police Memo System. 192 It is clear that the Commissioner had particular regard to the warnings and the applicant's alleged failure to take note of them in arriving at his decision to remove the applicant. In my opinion, the applicant should have been put unambiguously on notice that the warnings and their non-observance by the applicant could figure significantly in the Commissioner's consideration of the applicant's future. The reference to previous warnings in the Commissioner's Confidence Submission could hardly be said to have put the issue up in lights so to speak, with the use of the seemingly neutral expression "inappropriate material". Moreover, contrary to the statement in the Confidence Submission, it is not apparent to me that the applicant "conceded he had been warned on two previous occasions regarding inappropriate use of the Police Memo System." 193 The failure of the Commissioner to put the applicant on notice regarding the potential significance of the warnings and the error in the Confidence Submission that the applicant had conceded he had been previously warned, heavily disadvantaged the applicant. This was especially so given that the applicant had made it clear in his submission to the Commissioner that he was addressing only the three grounds cited in the Commissioner's Notice and that "If I have not specifically referred to something in the Commissioner's Confidence papers, then it should not be concluded that I agree with what has been set out therein." 194 There are other aspects to this issue of alleged previous warnings that also require consideration. Firstly, the Management Issues Report referred to in the Commissioner's Confidence Submission stated that: 195 Background Superintendent Ron Shaw, Kogarah LAC, rang Superintendent Rafferty on 21 June 1999 to bring to his attention a MEMO he had received from Detective Constable Giardini which contained inappropriate material. The MEMO had been sent to Superintendent Shaw from Detective Giardini's home computer. Detective Giardini was not on duty at the time. Action This was the second occasion Detective Giardini has admitted sending inappropriate material in a MEMO to fellow officers. He was once again reminded of his responsibilities and the need to ensure the MEMO system is used in a professional manner. Previous MEMO involved Sergeant David Bennett formerly of Eastern Beaches LAC. 196 The Investigator's Report on the applicant's CIS File stated: Giardini had been warned on two previous occasions regarding inappropriate use of Memo and he continued to abuse the system. The first incident related to an allegation that Giardini was involved in linking the MEMOID of Sergeant Bennett to a Pornographic Internet Website, resulting in Bennett receiving unsolicited pornographic material. This matter was not proved. The second matter involved Giardini sending unsolicited Police Football information to non consenting recipients. (Tab 11 ERISP Transcript Ques 200, Tab 17 Copy of Management Issues Report). 197 In his record of interview with Internal Affairs' officers on 17 March 2000, the applicant denied that he had linked Sergeant Bennett's computer to a pornographic website and there was no proof that he had, hence the comment in the CIS File. The applicant also denied that he had sent "inappropriate material" to Superintendent Shaw. Mr Giardini said in his evidence that the material sent to Mr Shaw was "of a similar content to that allowed on the Police Bulletin Board". The applicant also said in his evidence that "at no time did I admit sending to Sergeant David Bennett any inappropriate material to his work memo address." 198 The evidence underpinning the allegations in the Commissioner's Confidence Submission regarding the warnings to the applicant, and his failure to heed them, was very weak if the import of the allegations was that the applicant had been warned twice about sending pornographic material to officers over the Police Service Memo System and had taken no notice of the warnings. I note the use of the term "inappropriate material" to describe the material alleged to have been sent by Mr Giardini. Given the context in which that term was used in the grounds and reasons for removing the applicant there could be no mistake that what was being referred to was pornographic material. Moreover, if the Commissioner had wished to substantiate the allegations against the applicant of prior misconduct and not taking note of warnings, it would have been a simple matter of calling evidence from Superintendent Rafferty but that was not done. In those circumstances I consider that I am entitled to draw inferences adverse to the Commissioner's case. 199 If the Commissioner had read the available material regarding the allegations of prior misconduct and warnings, including the Management Issues Report, the transcript from the record of interview and the CIS File, he would have been alerted to the difficulty of asserting, as he did in effect in his Statement of Reasons, that the applicant had been warned twice about sending pornographic material to officers over the Police Service Memo System and that the applicant had not taken any note of these warnings. There was no evidence that the applicant sent any pornographic material to Sergeant Bennett on the Memo System and the material that the applicant sent to Superintendent Shaw was no different to material posted on the electronic bulletin board in respect of police football information. 200 It might be contended that the very fact that the applicant had been spoken to about the sending of inappropriate material should have been sufficient for him to understand that he should not continue with such conduct. In relation to Sergeant Bennett, as I understand the evidence, the applicant was told to remove Sergeant Bennett's work email address from his list and he immediately did so. There was no issue or discussion with Superintendent Rafferty about continuing to send "inappropriate material" to other police officers who had not indicated any objection to receiving the material; the applicant was not left with any impression from his discussion with Superintendent Rafferty that it was not acceptable conduct to send "inappropriate material" to officers over the Police Service Memo System, regardless of whether those officers were willing recipients. The same applied in relation to Superintendent Shaw. 201 There was no indication from Superintendent Rafferty that the applicant should desist from sending inappropriate material over the Memo System. The applicant only sent pornographic material to those officers who had not told him they did not want to receive the material. It would have been obvious to Superintendent Rafferty from his discussions with the applicant that the applicant was sending "inappropriate material" to officers other than Superintendent Shaw and Sergeant Bennett and that he was doing this via the Police Service Memo System. But Superintendent Rafferty did no more than request the applicant to stop sending material to Superintendent Shaw and to remove Sergeant Bennett's work email address from his list. Classification by Office of Film and Literature 202 In the grounds stated by the Commissioner as the basis upon which he had lost confidence in the applicant and in his Statement of Reasons, the Commissioner referred to classifications by the Office of Film and Literature of certain pornographic material introduced and disseminated by the applicant over the Police Service Memo System. The legislative background to these classifications is dealt with in that part of this decision relating to Burrows and I do not repeat it. 203 It was alleged in the Statement of Reasons that: There is material before me which discloses that you disseminated offensive pornographic material on the Police Service Memo System that has been classified by the Office of Film and Literature Classification (sic) under the Classification (Publications, Films and Computer Games) Act 1995 as 'Refused Classification' and Category 2 Classification". The significance of your behaviour is that you have published offensive pornographic material that cannot be legally imported or sold in Australia as well as publishing an indecent article in breach of section 578C(2) of the Crimes Act 1900, which is criminality. 204 The allegations in the Statement of Reasons were derived from the original grounds set out in the Notice to the applicant under s 181D(3)(a) of the Act. 205 As to the 'Refused Classification' (RC) material, this was alleged to be a "pornographic video attachment" (eel2.mpe). The Office of Film and Literature classified the attachment as RC. However, the classification was in respect of a "film for sale or hire". There was no evidence that Mr Giardini ever intended to sell or hire the video attachment and so the probative value of the classification is virtually negligible. 206 As to the alleged Category 1, Category 2 and 'Unrestricted' images, there were no classification certificates put into evidence. The categorisation of these images was based on what the Internal Affairs' investigators believed was the appropriate classification. 207 Moreover, in relation to the video attachment eel2.mpe, allegedly classified as RC by the Office of Film and Literature, there was no evidence that in classifying the image the Office of Film and Literature took into account the fact that the image was sent to persons who did not find them unwelcome or offensive. The National Classification Code set out in the Schedule to the Classification (Publications, Films and Computer Games) Act provides that classification decisions are to give effect, as far as possible, to a number of principles including that adults should be able to read, hear and see what they want and that s 11(d) of that Act requires the Office of Film and Literature to take into account the persons or class of persons to or amongst whom the publication is published or is intended or likely to be published when making a decision on the classification of a publication. If the Office of Film and Literature had been advised that the persons receiving eel2.mpe did not regard it as offensive or unwelcome it may be that the Office would have declined to classify the image. Alleged publication of indecent article 208 It was alleged in the Commissioner's Statement of Reasons that the applicant published "an indecent article in breach of s 578C(2) of the Crimes Act 1900, which is criminality." None of the material allegedly classified as Category 1 or Category 2 or Unrestricted could be regarded as an indecent article within the meaning of the Crimes Act because films and publications classified under the Classification (Publications, Films and Computer Games) Act, other than films and publications classified as RC are not "articles" for the purpose of the Crimes Act. This leaves the video attachment allegedly classified as RC. 209 Putting aside the considerable doubt that arises in connection with its classification by the Office of Film and Literature, the question is whether the applicant, in sending eel2.mpe to other officers, published an indecent article. Given the definition of "publish" in s 578C(1) of the Crimes Act, which includes "distribute" disseminate" and "circulate", I consider it is eminently arguable that the applicant did engage in the act of publishing eel2.mpe by transmitting it as an electronic image to a number of persons, including police officers, over the Police Service Memo System. I do not accept Mr Docking's submission that the ejusdem generis rule applies so as to limit the general words in the definition of "publish" to the same genus as the specific words, which Mr Docking submitted included "sell" and "offer for sale". The video attachment, if it were in fact classified as RC, would also fall within the definition of "article" in s 578C(1) of the Crimes Act. 210 Mr Graves submitted that eel2.mpe, having been classified as RC, supported the assertion that it was indecent. Whilst the image is disgusting, I am reluctant to accept that it is "indecent" within the meaning of s 578C(2) of the Crimes Act. To do so would be to establish a criminal offence. Indecency must be judged in the light of time, place and circumstances: R v Dunn [1973] NZLR 481 at 483, 484. See also Crowe v Graham (1968) 121 CLR 375 at 379 per Barwick CJ and at 396 per Windeyer J. The image eel2.mpe was sent to persons who did not find it offensive or unwelcome. No one complained about receiving the image. There was no evidence that the applicant ever intended for the image to be seen by any person other than those he sent it to. In this regard, I have also taken into account the fact that classification decisions under the Classification (Publications, Films and Computer Games) Act are to give effect, as far as possible, to the principle that adults should be able to read, hear and see what they want and that s 11(d) of that Act requires the Office of Film and Literature to take into account the persons or class of persons to or amongst whom the publication is published or is intended or likely to be published when making a decision on the classification of a publication. 211 There is also the additional consideration raised by Mr Docking that an act done in private is not ordinarily regarded as "indecent": Ex parte Fergusson; Re Premises No13, Charlotte Lane East Sydney [1967] 1 NSWLR 185. Therefore, it was submitted, a private email sent to consenting persons was not indecent. It seems to me there is some substance in this submission. 212 Mr Graves submitted that there was the potential for the pornographic images to be seen on computer terminals by police officers and members of the public who would have regarded the images as offensive. There was no evidence that any such thing happened and Mr Graves' submission in this regard was purely speculative. I take the same approach as the majority in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 at 341: The nature and extent of those submissions, in light of the actual evidence in the proceedings as distinct from speculation, leaves very much, it seems to us, a most inconclusive picture. Certainly in so far as the appellant is concerned we were not directed to any real evidence of her involvement in criminal activities whilst she was a prostitute and stripper; we are not prepared to make findings against her in that situation and it would be wrong to do so. 213 In the circumstances, I am not prepared to find that the applicant published an indecent article within the meaning of s 578C(2) of the Crimes Act. Police Service policies and code of conduct 214 In the Commissioner's Confidence Submission it was alleged that in respect of the Police Service Electronic Mail Policy Statement the applicant "understood his responsibility as outlined by the Memo Policy and guidelines" and "considered his actions may have been inappropriate in light of these policies". The allegation is somewhat misleading. In his record of interview the applicant said that he was only aware of the guidelines in 2000 that is, after the occurrence of the conduct relied upon by the Commissioner to remove the applicant. Further, the applicant said in his interview that he did not see a problem in using the Memo System "on a personal basis." The applicant did say in his interview that it would be inappropriate to use the Memo System to send articles or attachments that "might be deemed offensive by people" but this statement was in reply to the question "Having regard to what you know now about the policy for the Police Service memo system, what would you consider to be inappropriate usage of the system?" 215 Having regard to the fact that the Electronic Mail Policy Statement was sent to all police officers and to the fact that a significant number of officers continued to use the Memo System to send and receive pornographic material, there was no basis for singling out the applicant for not complying with the Policy. The same comment may be made in respect of the allegations regarding the applicant's knowledge of the Police Service's Code of Conduct and Ethics. In any event, I note that while the issues of the Code of Conduct and the policy statement regarding electronic mail were referred to in the Commissioner's Confidence Submission, there was no indication that these issues played any significant part in the Commissioner's decision to remove the applicant. 216 As to the Police Service's sex based harassment policy, no person complained of sexual harassment by the applicant and there was no evidence that the applicant sent material of a sexual nature to persons who found it unwelcome. Again, there was no indication that the Commissioner, in removing the applicant, was motivated by any consideration relating to the Service's sex based harassment policy. 217 I should say before leaving the issue of policy and codes of conduct that where such matters are to be addressed in material to be made available to the Commissioner in his consideration of whether to remove an officer, any reference to them has to be scrupulously fair. For example, I question why the issue of the Service's sex based harassment policy was even raised in the Confidence Submission where there was no evidence that any harassment occurred. Additionally, the portrayal in the Confidence Submission of the applicant's knowledge and understanding of the policy regarding electronic mail was less than fair. On their face, the statements in the Confidence Submission regarding the applicant's knowledge and understanding of the harassment policy and the electronic mail policy create the impression of even greater culpability on the applicant's part in circumstances where it was not warranted. If the Commissioner had taken these matters into account he would have been misled. The Commissioner should have had placed before him all of the relevant available information, laid out in a balanced way and not in a manner likely to prejudice the applicant. The applicant's interests 218 I have already referred to the applicant's excellent record as a police officer. There was also evidence from three senior police officers as to the applicant's good character. I have no doubt that the applicant, if returned to the Police Service, would be a good police officer. 219 Since his removal from the Service the applicant found great difficulty in finding alternative employment and it was not until 28 May 2001 that he found permanent employment as a Vehicle Identification Examiner with the Roads and Traffic Authority. He also experienced considerable financial pressure and was unable to pay maintenance to his children for a period of one month. He has been forced to put his house up for sale because he could not afford the mortgage re-payments. 220 The applicant's removal from the Police Service came as a severe blow to the applicant personally and to his family. 221 I consider that the removal of the applicant was harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Ltd at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 119. The public interest 222 In relation to the public interest, I make the same observations as those in relation to Burrows. The decision in Gavrilovski 223 I make the same observations about the applicability of the decision in Gavrilovski as I did in relation to Burrows. Summary of conclusions 224 My conclusions in this matter may be summarised as follows: 1) The evidence, including character evidence and evidence relating to his work performance revealed that the applicant was a keen, dedicated, honest officer who carried out his tasks in a professional manner. He had been commended and complimented on a number of occasions during his career. There is no reason to believe that if the applicant were to be reinstated, he would be anything other than a good police officer. 2) There was an inordinate delay in the question of Mr Giardini's continued employment being dealt with by the Police Service, during which period the applicant continued to work as a police officer in a most commendable manner. The applicant continued to perform his full duties for a period of six months despite the fact he had been recommended as a candidate for removal. During this period the applicant was assigned to sensitive police work. At best, the applicant was left in a state of uncertainty about his future for an unreasonable period of time. At worst, by about August or September 2000 when he was assigned to sensitive security duties, the applicant was entitled to believe that no further disciplinary action would be taken against him. 3) There were 471 officers, of ranks up to and including Inspector, who were detected as receiving and/or disseminating pornographic material over the Memo System. Of these 471 officers 462 were dealt with at Local Area Command level and nine were referred for action under s 181D. In respect of six of the officers nominated for action under s 181D advice was provided to the Commissioner that their involvement was no different to the other 462 officers dealt with at the local level and they were issued with warnings by the Commissioner. Three officers, including Mr Giardini were removed. There was no proper basis for removing the applicant for sending and/or receiving pornographic material where many other officers, including more senior officers, had been involved in the same conduct as the applicant and/or were aware of the applicant's conduct and took no action to stop the conduct, yet they were not removed from the Service. If the Commissioner had been fully and accurately appraised of the extent and nature of the conduct of other officers he may have arrived at a different view as to the sanction to be imposed on the applicant. If the applicant had been fully informed of the nature and extent of the conduct of other officers he may have been better able to defend himself against the allegations in the Commissioner's Notice. 4) It cannot reasonably be contended that Mr Giardini's culpability was greater than other officers for the reason that he continued to transmit pornographic material after receiving the state wide memo on how the electronic mail system was to be used, when it was the case that all officers were sent the same memo and a disconcerting number of them continued to send and/or receive pornography over the same Memo System used by Mr Giardini. 5) The primary reason advanced by the Commissioner as to why the applicant was in a different category was "because he was responsible for introducing the pornographic material into the memo system through his private mail box." Mr Giardini was not the only member of the Police Service who used his private mailbox to send pornographic material to officers on the Memo System. Thus, there was nothing unique or different about the applicant's conduct in introducing pornographic material onto the Memo System from a home computer. 6) The primary reason for placing Mr Giardini in a "different category" and, therefore, using that to justify removal, was irrational. There is no relevant difference between, on the one hand, Mr Giardini introducing pornographic material onto the Police Service Memo System via an electronic message from his home computer and, on the other hand, another police officer using his or her terminal on the Police Service network to introduce pornographic images by downloading from another site or from a disk. 7) There was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust. 8) The failure of the Commissioner to put the applicant on notice regarding the potential significance of the warnings allegedly given by senior police officers about the inappropriate use by the applicant of the Police Service Memo System and the error in the Confidence Submission that the applicant had conceded he had been previously warned, heavily disadvantaged the applicant. This was especially so given that the applicant had made it clear in his submission to the Commissioner that he was addressing only the three grounds cited in the Commissioner's Notice and that "If I have not specifically referred to something in the Commissioner's Confidence papers, then it should not be concluded that I agree with what has been set out therein." 9) The evidence underpinning the allegations in the Commissioner's Confidence Submission regarding the alleged earlier warnings to the applicant, and his failure to heed them, was very weak if the import of the allegations was that the applicant had been warned twice about sending pornographic material to officers over the Police Service Memo System and had taken no notice of the warnings. I am not reasonably satisfied that such allegations have been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J. 10) There was insufficient evidence to support the allegation made in the Commissioner's Statement of Reasons that the applicant "disseminated offensive pornographic material on the Police Service Memo System that has been classified by the Office of Film and Literature Classification (sic) under the Classification (Publications, Films and Computer Games) Act 1995 as 'Refused Classification' and Category 2 Classification". 11) There was insufficient material to enable the Commission to conclude that the applicant published an indecent article in breach of s 578C(2) of the Crimes Act 1900 (NSW). Therefore, the allegation to this effect in the Commissioner's Statement of Reasons is not made out. 12) There was no evidence that persons receiving the pornographic material sent by the applicant found it offensive or unwelcome. 13) The removal of the applicant was harsh in its consequences for his personal and economic situation. 225 For the foregoing reasons, I have concluded that the removal of the applicant from the Police Service was harsh, unreasonable and unjust. In relation to the appropriate remedy I take the same view in relation to the applicant as that in relation to Burrows, namely, in weighing up the applicant's interests and the public interest, the reception and transmission of highly offensive pornographic material over an internal electronic mail system by a police officer is completely unacceptable, despite the fact that the material was for private consumption. Removal from the Police Service, however, was too harsh. 226 I propose to order that Rick Lawrence Andrew Giardini be reinstated from the date of this decision. PART F. PRODUCTION OF LEGAL ADVICE 227 Mr Docking sought production of legal advice allegedly received by the Commissioner in connection with the removal of Mr Burrows and Mr Giardini. In light of my conclusions in the two matters before me I do not find it necessary to determine this issue. PART G. ORDERS 228 I make the following orders: 1) In Matter No IRC 5678 of 2000 the respondent shall reinstate the applicant in his former position on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service. The reinstatement shall take effect from the date of this decision. 2) In Matter No IRC 5862 of 2000 the respondent shall reinstate the applicant in his former position on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service. The reinstatement shall take effect from the date of this decision. 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.