Industrial Relations Commission of New South Wales CITATION : Craig Steven Dangerfield v Commissioner of Police [2003] NSWIRComm 96 APPLICANT: Craig Steven Dangerfield PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC 5715 of 2002 CORAM: Staunton J CATCHWORDS : Removal of police officer - review of order - procedural fairness - whether removal was harsh, unreasonable or unjust - onus and standard of proof in review proceedings - applicant charged with offence of assault occasioning actual bodily harm of person in custody - offence proven but no conviction recorded - other officers convicted of assault and not dismissed from Police Service not such as to be relevantly compared - rule in Jones v Dunkel not applicable in the circumstances of Commissioner responding to summons for production - credibility of applicant - removal not harsh, unreasonable or unjust - application dismissed. Crimes Act 1900 s 59 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 10 Police Service Act 1990 ss 173 181D 181E 181F Industrial Relations Act 1996 s 84 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Jones v Dunkel (1959) 101 CLR 298 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Miller v NSW Commissioner of Police [2002] NSWIRComm 296 CASES CITED : R v Williams (1990) 50 ACrimR 213 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 and the Commissioner of Police (2000) 100 IR 106 HEARING DATES: 10/30/2002; 02/17/2003; 02/18/2003 DATE OF JUDGMENT: 04/04/2003 APPLICANT: Mr B Docking of Counsel SOLICITOR: Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of Counsel SOLICITOR: Legal Services Branch NSW Police Service JUDGMENT: - 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Staunton J 4 April 2003 Matter No IRC 5715 of 2002 Craig Steven Dangerfield and the Commissioner of Police Application under section 181E of the Police Service Act 1990 by Craig Steven Dangerfield for review of an order of the Commissioner of Police. DECISION [2003] NSWIRComm 96 1 This is an application by Craig Steven Dangerfield for review of an Order made by the Commissioner of Police under s 181D of the Police Service Act 1990 (the Act). 2 On 24 September 2002, Mr Dangerfield was removed from the NSW Police Service following the service of an Order on him made by the Commissioner of Police under s 181D(1) of the Act - generally referred to as the Commissioner's Confidence provisions of that Act. 3 Section 181D(1) of the Act permits the Police Commissioner to remove a police officer from the Police Service if the Commissioner no longer has confidence in that officer on the basis of 'competence, integrity, performance or conduct.' 4 In Mr Dangerfield's case, the Commissioner relies on the conduct of Mr Dangerfield while performing his duties at Penrith Police Station on 30 September 2000 and, in particular, his conduct towards a person in custody. 5 The Commissioner's Statement of Reasons accompanying the s 181D(1) Order elaborates on that issue as follows: There is material before me which discloses that whilst on duty at the Penrith Police Station, as the officer responsible for persons in custody, you acted inappropriately towards a male person who had been detained as an intoxicated person, in that you assaulted him by dragging him from the cell on his back out of the police station, into and along the rear lane, which caused substantial injury to that male person's back, buttocks and elbows. I hold the view that you did act in this matter (sic), which is totally inappropriate and resulted in you being criminally charged with Assault Occasioning Actual Bodily Harm. and - [T]he manner in which you forcibly removed him from the cell and the precinct of the police station is the adverse matter. 6 The Commissioner concludes his Statement of Reasons by stating: I find that the mistreatment of a person in police custody, particularly someone who is at some level of intoxication to be a very serious matter. The New South Wales Police has a duty to protect members of the public, indeed that is our first statutory responsibility. The evidence before me indicates that you have abrogated that responsibility and whilst I have taken note of your denials and your suggestion that it was an aberration, I find that I cannot accept that as sufficient negation of the issues raised. As Commissioner of Police I have a responsibility to ensure that officers of the New South Wales Police act appropriately. In considering this matter I have found that you acted totally inappropriately which has caused me to lose my confidence in your suitability to remain a member of the New South Wales Police. I therefore remove you from your position as a police officer. 7 The applicant's right to apply for review of the Commissioner's decision arises under s 181E of the Act. The basis on which the Commission is empowered to review that decision is to be found in s 181F of the Act that provides: 181F. Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1). The applicant's background and conduct 8 Mr Dangerfield is currently 31 years of age, married with two children. He joined the Police Service in October 1990 and, in addition to the duties he has performed at Penrith, he has been stationed at the Mt Druitt and Kings Cross Police Stations as well as the Internal Affairs branch of the Service. 9 During his time with the Police Service and, up until the incident before me, Mr Dangerfield had not come under adverse notice in relation to his performance as a police officer. 10 Immediately following his swearing in as a police officer, Mr Dangerfield performed duties at the Mt Druitt Police Station. He states that during that time he was involved in a number of serious incidents. He received an award for bravery and devotion to duty relating to an incident where, as he describes it, '150 persons set upon myself and 3 other police.' 11 In 1995, Mr Dangerfield was seconded to the Office of Internal Affairs -Customer Assistance Unit. After six months he returned to the Mt Druitt patrol and then to the Kings Cross Police Station for some fourteen months. In October 1996, Mr Dangerfield was transferred to the Penrith Patrol on general duties. 12 In September 1997, Mr Dangerfield became involved in a confrontation with a 'mentally disturbed man armed with a knife'. As a result of that confrontation, Mr Dangerfield states: I was forced to shoot the male (non-fatal) in order to protect myself and the other officers. 13 Following that incident, there were extensive investigations by the Police Service and Mr Dangerfield was placed on sick report for a period of some seven weeks. He stated that on his return to work he had great difficulty in undertaking the full range of his duties. He stated: I eventually agreed to return and I was placed into the Beat Policing unit. I was given no specific tasks - just told to do as I wished. On numerous occasions I left the station for hours without any notice being taken. I did not cope well with the shooting. I began to drink heavily; I was reclusive and unable to go into open spaces without company. I suffered from severe mood swings and bouts of aggression and sleep deprivation, sleeping most nights for a period of no longer than two hours, this continued for some twelve months. 14 Mr Dangerfield states that following a particular outburst, he received assistance from mental health professionals and returned to police duties in 1998. He was subsequently attacked by a male person during the course of an arrest and sustained a shoulder injury, which required a further period off work of some six months. In late 1998 he returned to full duties. Mr Dangerfield states: As a consequence of the shooting I have suffered unremitting health problems such as irritability, violent dreams, flash backs, nausea and the like. A number of those symptoms increase on and around each anniversary of the incident. 15 While Mr Dangerfield detailed the above matters in his Response to the s181D Notice, they were not matters to which I was specifically taken to as a ground for raising any particular explanation or context for Mr Dangerfield's behaviour on 30 September 2000. Relevant factual circumstances and considerations 16 The particular incident giving rise to the s 181D(1) Notice first arose when Mr Dangerfield was on duty at the Penrith Police Station on the night duty shift of 29/30 September 2000. On that particular shift, Mr Dangerfield was rostered to be in charge of the Charge Room. 17 In the course of that shift Mr Dangerfield was responsible for the care and control of Mr Michael Davey. Mr Davey was admitted to the cells at Penrith Police Station at about 11pm on 29 September 2000 identified as an intoxicated person. As a result of events that subsequently occurred involving Mr Dangerfield and Mr Davey, Mr Dangerfield was charged with an offence of assault occasioning actual bodily harm on Mr Davey pursuant to s 59 of the Crimes Act 1900. Mr Dangerfield entered a plea of not guilty to that charge citing self-defence. The matter was heard before a Magistrate of the Local Court of New South Wales on 22 and 23 October 2001. 18 On 6 November 2001, the Magistrate gave his decision. He found the offence proven but, without proceeding to conviction, he dealt with Mr Dangerfield by placing him on a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 for a period of twelve months. In handing down his findings and his ultimate decision, the Magistrate rejected Mr Dangerfield's claim of self-defence. He found that the injuries sustained by Mr Davey were the result of being dragged by Mr Dangerfield 'across the floor of the police garage to a point either one metre inside or outside the roller door.' 19 In rejecting Mr Dangerfield's claim of self-defence, the Magistrate said: In my opinion, there were no grounds whatsoever for the defendant to believe it was necessary to drag the victim by the ankle across the floor in self defence. I do not consider that the defendant acted out of spite or with any intention of causing the victim injury or pain but rather out of pure frustration at the attitude and stance adopted by the defendant. There was an assault, in my opinion, arising from recklessness. I do not accept the defendant could not have contemplated that the victim would not have sustained injuries by being dragged across an untreated cement surface wearing only a light shirt for a distance of (at) least eleven metres. Having regard to that evidence, I find the offence proved beyond a reasonable doubt. 20 In addition to Mr Dangerfield there were a number of other police officers on duty on that shift at Penrith Police Station. Some were present in the relevant sections of Police Station when the incident involving Mr Dangerfield and Mr Davey took place. For example, Constable Hickman played some part in removing Mr Davey from his cell into the Charge Room. As well, Constable Roden was in the cell and attempted to assist in the removal of Mr Davey from the cell to the Charge Room. 21 In addition to those officers I have mentioned the following officers have also been identified by their appearance on the video: · Senior Constable Mick Connolly, who is identified as being in the Charge Room. · Senior Constable Bradley, who is identified by reference to the video as the police officer dressed in dark blue overalls also present in the Charge Room. · Constable Munday is also identified on the video as being in the Charge Room. It is clear from the Local Court transcript that I have read and her investigatory interview that she was also in the van dock area when Mr Davey was evicted from the Police Station. 22 The facts and circumstances alluded to require detailed elaboration and, in some instances, a determination of factual issues in dispute. 23 Apart from the evidence that Mr Dangerfield himself gave before me, I have had the benefit of viewing the video that was produced in these proceedings. It had also been produced in the prior criminal proceedings before the Local Court when Mr Dangerfield entered his plea of not guilty to the charge of assault occasioning actual bodily harm upon Mr Davey. That video was compiled from the time sequenced surveillance camera recordings maintained within the Charge Room and van dock area of Penrith Police Station on the morning of 30 September 2000. 24 As well, I have had the opportunity of reading the Local Court transcript of the Magistrate's findings as well as the evidence given in those proceedings by three of the officers who were also present in the Charge Room and the van dock area with Mr Dangerfield in the course of his dealings with Mr Davey. In addition, contained within the Commissioner's Confidence Submission before me (exhibit 2) are copies of interviews conducted by Inspector Bray from Penrith Police Station, the investigating officer in this matter, with all the relevant police officers on duty and in the vicinity of the Charge Room and van dock area at the time of the incident. Those interviews were conducted pursuant to clause 9(3) of the Police Service Regulation 1990. 25 In proceeding to certain factual findings in this matter, as I must, regard must be had to the requisite onus and standard of proof to apply in matters such as the one before me. That principle is well established and has been considered by the Commission in matters involving a review under s 181D of the Police Service Act as well as unfair dismissal proceedings under s 84 of the Industrial Relations Act 1996. It was canvassed extensively in the decision of Walton J, Vice-President in Starr v Commissioner of Police [2001] NSWIRComm 226 particularly at para [158] where his Honour refers to the following passage from the judgment of the Full Bench in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at pp 463 - 464: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employee's Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. Having regard to the above his Honour states at para [159] of Starr : Thus, the relevant standard to be satisfied in relation to allegations of misconduct against employees is on the balance of probabilities. However, that standard must be satisfied to a degree which is appropriate to the gravity of the facts to be proved. Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that a finding which may put a career in jeopardy must be made with regard to such considerations of the gravity of the facts in issue. The most often cited case for such a proposition is Briginshaw v Briginshaw , which was again confirmed recently by this Commission in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. In that case, the Full Bench of the Commission noted that the principle in Briginshaw v Briginshaw is now embodied in s140 of the Evidence Act 1995, which provides: 140. Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a ) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 26 The recital of relevant facts and circumstances commences at about 11 pm on 29 September, when Mr Michael Davey was brought to the Penrith Police Station by Senior Constables Janovsky and Schliesing to be entered into custody. As the officer responsible for the Charge Room, Mr Dangerfield was made aware by Senior Constable Janovsky that Mr Davey had appeared at the St Marys Police Station and, following some aggressive and drunken outbursts by him, had been asked to leave the St Marys Police Station. In getting him to leave the Station there was an incident involving Mr Davey with Senior Constables Janovsky and Schliesing outside the St Marys Police Station which resulted in Senior Constable Schliesing using her capsicum spray on Mr Davey. The two Senior Constables then placed Mr Davey in the back of a police van and took him to his home to deposit him there. By all accounts, Mr Davey was assessed as moderately to severly intoxicated. 27 There was no one at Mr Davey's stated home address and, accordingly, Senior Constables Janovsky and Schliesing took Mr Davey to the Penrith Police Station where he was entered into custody as an intoxicated person. He entered the police cells at Penrith at approximately 11 pm on the evening of 29 September 2000 under the care and management of Mr Dangerfield. 28 When placed in the cell, Mr Davey went to sleep. Mr Dangerfield observed him at regular intervals as detailed in the Custody Management record at the Station. In each of the entries made in the material before me, Mr Davey was sleeping. 29 At approximately 2.30 am or thereabouts on 30 September, Mr Dangerfield formed the view that Mr Davey was no longer intoxicated and could be released. 30 At the time that Mr Dangerfield made the decision to release Mr Davey he knew that Mr Davey had something of a history vis a vis his dealings with the police. Placed before me as exhibit 6 was Mr Davey's criminal history and record of convictions. 31 On any view, Mr Davey does have a reasonably extensive criminal history, commencing in 1980 up to and including 2001, detailing offences of personal and property violence, social disorder and traffic offences. There are a number of offences of assaulting police. In relation to his overall criminal convictions, Mr Davey has incurred a number of penalties ranging from short periods of fixed term imprisonment, periodic detention, bonds and fines. 32 Sometime after 2.30 am when Mr Dangerfield decided it was time for Mr Davey to leave the Penrith Police Station. He told Mr Davey it was time for him to go. Mr Davey resisted, became argumentative and made it very clear that he did not wish to go. Equally, Mr Dangerfield was adamant that he must and from that point on certain events unfolded. 33 Following Mr Davey's initial resistance to Mr Dangerfield's decision that he should leave the Police Station, there was the beginning of an altercation in which Mr Davey made it clear that he did not wish to go, and Mr Dangerfield was equally firm in his conviction that he must. There was some initial minor scuffling between the pair. Mr Dangerfield then left the cell for a brief period to collect Mr Davey's belongings. 34 Mr Dangerfield attempted to give the property to Mr Davey prior to removing him from the cell. Further altercation and scuffling ensued between the two. As a result Mr Davey ended up lying on the floor of the police cell indicating he had no intention of leaving. 35 Mr Dangerfield says at this point Mr Davey was, amongst other things, lashing out and kicking out with his feet, as well as mouthing verbal abuse to the police officers. The video that I saw does not convey any sound. It was not possible to detect a great degree of violent behaviour by Mr Davey towards Mr Dangerfield but I do accept, as consistently stated and accepted by the Magistrate in the Local Court proceedings, he was being extremely uncooperative, physically resisting, quite probably verbally aggressive and in no mood to cooperate with Mr Dangerfield. 36 There is evidence before me as to Mr Davey's state of intoxication when he was being removed. The most conclusive is that of the finding made by the Magistrate when he stated in his summing up: I also accept as a fact, having regard to the video evidence and that of other witnesses, that the defendant was still intoxicated and acting in a belligerent, insulting and aggressive manner in the cells at the Penrith Police Station. 37 As well, there is indirect evidence before me from Constable Munday both in her internal investigative interview and her evidence in the Local Court proceedings that, at the time Mr Davey was being removed from the Penrith Police Station, he was still intoxicated. In her internal interview Constable Munday said Mr Davey was 'well affected by alcohol' and in her Local Court evidence she stated that, at the time Mr Davey was being removed from the Station 'he was still affected' by alcohol. 38 Senior Constable Connelly also stated in his internal investigative interview that when he attended the Charge Room of Penrith Police Station during the altercation between Mr Davey and Mr Dangerfield that he: … saw a male inside the cells he was swearing and yelling out (and) appeared to be intoxicated. 39 As well, Constable Roden's expressed view in his investigative interview was that Mr Davey was 'mildly to moderately' intoxicated although Constable Roden's evidence on that and other issues was somewhat undermined in cross-examination. 40 Mr Dangerfield says that he came to the view that Mr Davey was no longer intoxicated and that 'he (Mr Davey) was no longer a threat to himself or any other person.' There was no evidence before me as to what criteria Mr Dangerfield applied in coming to the view that he did. 41 Having regard to all of the above, I am satisfied that at the time Mr Davey was removed from the cell at Penrith Police Station on the morning of 30 September 2000 he was still intoxicated. On the evidence before me the level of that intoxication is not able to be precisely ascertained. 42 When Mr Davey was lying on the floor of the police cell, kicking out with his legs and refusing to cooperate, Mr Dangerfield grabbed hold of one of his legs by the ankle. He said he did so in order to defend himself from some of Mr Davey's more aggressive actions towards him. There is evidence, again largely uncontested, that other officers had, by now, gathered in response to the noise and fracas ensuing in the cell. While Mr Dangerfield did not request any assistance from his fellow officers in dealing with Mr Davey, some was forthcoming. 43 One officer, Constable Hickman entered the cell and grabbed Mr Davey by the other ankle. The other police officer who entered the cell was Constable Roden who, by all accounts, initially made a half hearted attempt to grab Mr Davey by the shoulders with Mr Dangerfield and Constable Hickman each holding an ankle. A reading of the Local Court transcript and the prior investigative interview with Constable Roden discloses that he attempted to "grab" Mr Davey by his arms 'to lift him up because he was being dragged.' Because Mr Davey was on the floor of the cell resisting and struggling with Constables Dangerfield and Hickman, Constable Roden was unable to hold onto Mr Davey and let go while Mr Davey was being pulled from the cell. Certainly the video does not show that Constable Roden had any hold on Mr Davey as he was pulled from the cell to the Charge Room floor whereas it does show Constables Dangerfield and Hickman pulling Mr Davey from the cell by his legs out into the Charge Room. 44 While Mr Davey was still on the floor in the Charge Room, Constable Hickman dropped the leg that he was pulling on and seemingly took no further part in dragging Mr Davey from the Charge Room into the van dock area. Constable Hickman explains his part in assisting Mr Dangerfield to pull Mr Davey from the cell into the Charge Room area as 'making sure he (Mr Davey) didn't kick Mr Dangerfield' and that he thought Mr Davey 'was getting dragged out to get searched'. 45 A reading of the Local Court transcript concerning Constable Hickman's evidence discloses some dispute as to the exact point at which Constable Hickman dropped Mr Davey's leg. That is, whether it was one metre from the door of the cell into the Charge Room, or closer still to the van dock door - the inference being that Constable Hickman actively assisted Mr Dangerfield in pulling Mr Davey further than he had, at first, suggested. No conclusive finding was made by the Magistrate on that issue and, in the absence of hearing first hand from Constable Hickman, I can only conclude that he dropped Mr Davey's leg in the Charge Room. The evidence he gave in the Local Court proceedings was to that effect and the video does not show Constable Hickman continuing to drag Mr Davey by a leg in the van dock area. 46 The respective roles of Constables Hickman and Roden in the removal of Mr Davey from the cell and his ultimate eviction from the Penrith Police Station became a critical factual issue in the hearing before me. I will return to it in more detail in due course. 47 As the evidence disclosed, Mr Dangerfield continued to pull Mr Davey by one leg through the door leading from the Charge Room to the van dock area of the police station. The van dock area is that area of the police station where police vans are driven into for the purposes of depositing persons into the police cells or bringing them into the Charge Room. To get to the van dock area at Penrith Police Station, police vans are required to travel along a laneway of some 70 metres that runs along the side of the Police Station and then activate a roller door which permits entry into the van dock area. The exact dimensions of the van dock area were not made known to me, but it is sufficiently big enough for a police van to enter and reverse back such that the back of the van would be adjacent to or near to the door leading into the Charge Room. On a view of the van dock area from the video, at least two police vans are able to park at any time. 48 On the morning of the 30 September when Mr Davey was being removed, there was a police van in the van dock area parked nose first such that the front of the van was adjacent to or near the doorway between the van dock area and the Charge Room. That much is clear from the video that I have looked at. 49 When Mr Dangerfield dragged Mr Davey into the van dock area, he had to manoeuvre him around the front of the police van parked in the van dock area. He then continued to drag Mr Davey along the side of the van by his ankle until he arrived at the junction of the van dock area and the external bitumen laneway, separated by the roller door. There is and was a clear factual dispute as to whether Mr Dangerfield, having reached the edge of the van dock area, continued to pull Mr Davey over onto the bitumen laneway prior to letting him go. I will return to that issue in more detail later in this judgment. 50 In the course of being dragged through the van dock area and, according to Mr Davey, onto the bitumen surface of the laneway, he suffered abrasions and grazing to his lower back, buttocks and elbows. 51 Mr Davey picked himself up from where he was deposited and eventually found his way home via Nepean Hospital where he waited for an hour or so and left without being seen. On his way home, Mr Davey also took the time to drop into St Marys Police Station where he encountered Senior Constable Janovsky at the front desk. According to Senior Constable Janovsky, Mr Davey raised his shirt and exposed his back and lower buttocks to him and stated, 'Look what your mates have done' and left. Once he arrived home, he complained to his brother of what had happened and a number of photographs were taken denoting the grazed areas on his back and buttocks. A copy of those photos were in evidence before me. 52 Mr Davey formally lodged a complaint about the way in which he was treated at Penrith Police Station. Subsequent internal investigations by the Police Service identified Mr Dangerfield as the main perpetrator of the actions complained about. That in turn put in train the sequence of events leading to the application for review before me. 53 As the matter progressed before me, and notwithstanding the findings made by the presiding Magistrate in the Local Court, it was clear that there was still some disputed facts. 54 Apart from Mr Dangerfield himself, I heard no direct evidence from Mr Davey nor from any of those police officers that I have already mentioned above. The best assessment I am able to make on the evidence before me was that contained in the transcript of the Local Court proceedings that encompassed the Magistrate's findings and the evidence given in the Local Court proceedings by three of the officers that I have mentioned above - Constable Munday, Constable Hickman and Constable Roden, as well as the material contained in the Commissioner's Confidence submission. 55 To the extent that the Magistrate's findings of fact may assist me, they were findings of fact determined beyond reasonable doubt. In coming to a concluded view as to those factual matters that are in dispute, I do so having regard to the requisite civil standard of proof that applies to proceedings such as the one before me that I have already referred to. 56 One matter still in dispute was whether Mr Dangerfield deposited Mr Davey at the edge of the van dock area immediately adjacent to the laneway or out in the laneway itself. This formed an issue of some moment before me, given that it was viewed that a dragging of Mr Davey onto the bitumen surface of the laneway was, as it were, an exacerbation of an already serious matter. As well, the Commissioner's Statement of Reasons includes a reference, inter alia, to Mr Dangerfield dragging Mr Davey 'into and along the rear lane.' 57 In his evidence before me Mr Dangerfield stated that he dragged Mr Davey to the edge of the van dock area at the location of the roller door. Mr Davey has never agreed that he dragged Mr Davey onto the bitumen surface of the laneway and in paragraph 9 of his statement (exhibit 1) he says: If I did drag him onto the bitumen, I did not mean to do that, and when I was interviewed I honestly believed that I had not done so. 58 The findings made by the Magistrate on that issue were somewhat equivocal as the following extract from his summing up discloses: However, from all the evidence I find it is a fact the injuries sustained to the victim were a result of being dragged by the defendant across the floor of the police garage to a point either one meter inside or outside the roller door. The victim says he dragged him outside. The victim says he was dragged outside, the defendant says inside. Constable Munday says outside to the laneway, Constable Hickman to the roller door, maybe a metre outside, and Constable Roden, just outside. 59 The video before me is inconclusive in assisting me to come to a definitive view as to exactly where Mr Dangerfield finally deposited Mr Davey. The reason it is inconclusive in that it is not clear enough to enable a view to be formed on that matter simply by reference to the video alone. 60 Exhibit 10 before me was the transcript of the evidence given by Constables Munday, Hickman and Roden in the Local Court proceedings. Without detailing all of their evidence in chief and cross-examination, it would be accurate to assess their evidence on the basis that Constable Munday stated on more than one occasion that Mr Dangerfield dragged Mr Davey out to the bitumen laneway. When pressed in cross-examination, she resiled somewhat and agreed that it was to the edge of the van dock area in line with the roller door. Constable Hickman stated that Mr Davey was deposited about a metre outside the open roller door separating the van dock area and the laneway. Constable Roden stated that Mr Davey was deposited in the laneway and maintained that evidence under robust cross-examination. 61 Constable Munday's evidence in the Local Court proceedings was in accordance with the statement she gave in her interview with Inspector Bray where she said: A. the male was dragged from the cell through the exit door of the charge room to the prisoner loading bay and out through the roller door to the alley way. Q 19. What happened then? A: I am pretty sure that as they were dragging him out I went and got his shoes. I am not sure whether I gave the shoes to someone else or I carried them out. I hit the button to close the roller door to close it (sic). 62 Constable Munday stated clearly on 2 separate occasions as to where she said Mr Dangerfield deposited Mr Davey - that is, outside in the laneway. When challenged in cross-examination by counsel for Mr Dangerfield she responded as follows: Q. And, I mean, you are not suggesting, are you, that you saw him dragged out into the laneway, you simply saw him deposited near the roller door, didn't you? A. Yes. Q. It wasn't a matter of him being dragged out into the laneway along the bitumen surface of the laneway, was it? A. I don't remember seeing that. Q. I mean, when you saw him basically that is when the police let go, Dangerfield let go of his leg. He was basically in line with the roller door, wasn't he? A. That's what I recall. Q. And after you delivered him the shoes and so forth, can I refresh your memory by reminding you that Dangerfield said to you "hit the button," words to that effect, to drop the roller door; is that correct? A. I don't know. I don't know if it was Senior Constable Dangerfield that did say that. 63 As I have considered all of the evidence before me, I believe it is highly probable that Mr Dangerfield did drag Mr Davey into the laneway. It simply does not make sense to suggest, as it was, that Mr Davey was deposited at the 'edge of the van dock area' or 'in line with the roller door' as suggesting some area of measurable space between the van dock and the laneway. The laneway and the van dock are a continuum interrupted only by the bringing down of the roller door from above and the fact that the floor of the van dock is untreated cement and the laneway is bituminised. To take Mr Davey to a point 'in line with the roller door' and then bring down that door leads to one conclusion - either he was inside the van dock or he was outside in the laneway. Given that the intention of Mr Dangerfield was to exclude Mr Davey from the Police Station it seems an inescapable conclusion to me that Mr Dangerfield, in his desire to exclude Mr Davey from the Police Station, would have dragged Mr Davey sufficiently into the laneway to wholly deposit him there, given him his belongings and brought down the roller door. The conclusion I have come to on the matter is based on a composite of logical inferences as well as a consideration of the evidence given in the Local Court proceedings and statements made during the investigatory process of this matter. 64 Even if my factual conclusion is wrong, on any view, that does not alter the relevant circumstances of this matter as far as Mr Dangerfield is concerned. That is, that Mr Dangerfield dragged Mr Davey from the Charge Room, into and across the van dock area of Penrith Police Station, to a point at least immediately in line with the boundary of the van dock area and the bitumen laneway leading into it. There is nothing to suggest that the injuries that Mr Davey sustained were inconsistent with the action of skin abrading against what would be a relatively rough surface replete with all the detritus of vehicles being driven in and out, as well as police personnel and others walking across that area every day. As the Magistrate indicated it was 'an untreated cement surface' and Mr Davey was dragged for a distance 'of at least 11 metres.' 65 The next issue of dispute before me is somewhat more problematic. It concerns the evidence given by Mr Dangerfield before me as to his belief concerning the role of Constables Hickman and Roden in removing Mr Davey from the police station. The relevant evidence given by Mr Dangerfield on this issue is as follows: Q. You were consciously aware what you were doing when you were dragging this man along. You were thoroughly controlled in what you were doing and knew what you were doing. Is that correct? A. I had hold of the man's legs and at that stage I thought other police had hold of him off the ground. It wasn't entering my spectrum (sic) he was going to be injured at the time. Q. Sir you knew you were dragging him along the ground? A. At that time I thought there were two other police officers had hold of him off the ground along with myself. Q. I suppose you are saying from the moment you took Davey from the cell or from within the cell to the roller doors of the vehicle dock area that you thought the two police officers were holding him up off the ground? A. No, to a point I was on my own in a cell for a short time and obviously Constable Roden was there; at that time I entered I had no idea (sic). I had hold of him as we came out of the cell. Constable Hickman had hold of his leg and to my knowledge Constable Roden had hold of his arm lifting him from the ground. Q. Until you got to the roller doors of the vehicle dock area or thereabouts? A. That was my belief until I realised that they had dropped him at some point before that. Q. I want to understand this perfectly clearly. Your evidence is that at some point in time when you exited the cell Hickman had hold of one leg, you had hold of the other leg and someone else was holding Mr Davey by his arms up off the ground and he was moved a distance of, well, was moved some considerable distance and you were not aware you were dragging him along along the ground? A. Not until some point into the event, no, in the van dock, no. Q. What point in the van dock area did you become aware of that? A. At a point near the van dock, I don't exactly know where it was. Q. When you were at the van dock area like when you first raised it? A. Somewhere near the entrance of the van dock and bitumen area. I don't know exactly where it was. Q. That was the first time you became aware, you say, you were dragging the man? A. By myself, yes. 66 In giving that evidence, counsel for the Commissioner emphasised to Mr Dangerfield that the belief that he held concerning the actions of Constable Hickman and Constable Roden had never been enunciated in those terms before by Mr Dangerfield - not in his Response to the s 181D(1) Notice that he sent to the Police Commissioner, nor in the statement (exhibit 1) that prefaced his evidence before me or in any interviews that he gave prior to this hearing. When asked if he had told the Magistrate in the Local Court proceedings as to his belief concerning the actions of Constables Hickman and Roden, Mr Dangerfield said he could not recall. On any view there must be considerable doubt that he did because when pressed in cross-examination Mr Dangerfield responded as follows: Q. You say in your evidence today that you believed, to assist my friend, that you were holding one leg, Hickman was holding the other leg, and Roden was holding the arms and Mr Davey was in effect being carried from somewhere in or around the door from the cell to the custody area to somewhere beyond the door from the custody area to the van dock area, correct? A. Yes. Q. And what I put to you originally was that your evidence is that you believed you were doing that for substantially all of the time that you were removing Mr Davey from the police station? A. Yes. Q. And what I am suggesting to you was that what you told Magistrate Pogson was that you believed it was necessary to drag the victim by the ankle across the floor in self-defence? A. I can't answer that without seeing the transcript. Q. You have no recollection of that? A. I have recollection of my evidence but not to that exactness, no. Q. You have no recollection of that particular aspect of your evidence? A. To that exact quotation, no I don't. Q. And that you told Magistrate Pogson that you were doing this out of frustration and in circumstances where you were rendered little or no assistance from any other police officers? A. Again, I can't answer that one way or the other without reading a copy of the transcript. Q. Do you recall giving evidence before Magistrate Pogson in cross-examination that you hadn't sought any assistance from any other constable that was there on that particular night? A. Yes, I recall that. Q. You recall that? A. Yes. Q. And you recall telling Magistrate Pogson that you had made the decision to remove Mr Davey regardless of what he said or did? A. I would have to say, yes. Further, when pressed as to his expressed belief that he was predominantly carrying Mr Davey assisted by Constables Hickman and Roden: Q. And yet you never thought it appropriate to point out to anyone before today that that is what you say you believed you were doing? A. I don't recall whether I have pointed it out to other people. I haven't said that I didn't. Q. When you got the 181 D notification from the Commissioner and prepared your response that was a pretty significant matter, wasn't it? A. Yes. Q. And it doesn't find its way into your response, is that right? A. I was waiting for the question. Q. My question was and it doesn't find its way into your response? A. The lifting side of it no, the admissions in relation to the dragging pre and post the lifting stage of the incident. 67 In answer to the change of assault occasioning actual bodily harm on Mr Davey, Mr Dangerfield raised self defence. In dismissing that defence, the Magistrate's findings having regard to Mr Dangerfield's actions on the morning in question, included the following: In cross-examination he [Mr Dangerfield] admitted that he hadn't sought any assistance from any other Constable that was there on that particular night, and that he made a decision to remove him [Mr Davey] regardless of what he said or did. He also said that he made the decision to release him because, in his opinion, he was no longer a threat to himself or any other person. 68 In addition to the Magistrate's findings that I have referred to above, a reading of the Local Court transcript of the evidence of Constables Munday, Hickman and Roden does not support the evidence of Mr Dangerfield before me as to his belief that Constable Hickman and Roden were participating in carrying Mr Davey for a considerable part of the distance between the cell and the edge of the van dock area. 69 If what Mr Dangerfield said in evidence before me as to his belief was his belief at the time, then it is surprising that this evidence was not put to Constables Roden and Hickman in their evidence before the Local Court. Constable Roden was vigorously cross-examined in those proceedings to the point where some of his evidence was considerably undermined. The issue was never put to him. The cross-examination of Constable Hickman certainly went to the issue of the point where he says he dropped Mr Davey's leg, that is, in the Charge Room or at the junction of the Charge Room and the van dock area. But again, at no time was it ever put to him in the starkest terms the belief that Mr Dangerfield expressed before me, that Constable Hickman had actively participated in "carrying" Mr Davey to any degree, if at all. 70 When regard is had to the video, and acknowledging that it is a composite of a number of tapes with a time delay sequence, there is nothing on the video to support the belief that Mr Dangerfield expressed is in evidence before me. When that issue was explored with Mr Dangerfield in re-examination, he suggested that the video was not complete. Again, reference to his evidence is illustrative: Q. Well once you had seen the videos did that change the belief you held? A. No. Q. Why not? A. Well the video although segmented shows the three of us holding Mr Davey at certain points. And then this next screen shows me a substantial way into the van dock and them standing in the near vicinity. I believe that now was probably the time when they had let go for whatever reason. Q. When do you mean what was shown on the video, what are you referring to? A. The surveillance video when there was myself, Cons Hickman and Cons Roden are a fair substantive distance in the van dock area. It shows Cons Hickman still standing and what I believe is holding the leg . It doesn't show Cons Roden but the tape sort of cuts across the camera frame, cuts across that part of his body. And then the next frame shows us further off into the van dock area and those two officers standing in the vicinity but not actually having any physical control of Mr Davey, only myself. (my emphasis) 71 Overall, I have to say that I found Mr Dangerfield's evidence on these critical matters unconvincing. In doing so, I accept the force of the point made by counsel for the Commissioner. That is, the explanations that Mr Dangerfield now gives as to his belief concerning the roles of Constable Hickman and Constable Roden and my assessment of that evidence are critical in the final determination of this matter. As Mr Dangerfield acknowledged, if his belief had been raised and investigated right from the very beginning and those officers questioned about it, then what has been perceived and determined as Mr Dangerfield dragging Mr Davey the distance that he did alone could well have been placed in the context of three officers carrying Mr Davey the distance in question. 72 Given the difference in outcome that such an approach may well have had for Mr Dangerfield, it is surprising to say the least that this belief of his has not been raised before. It clearly should have been and on any view it is an explanation one would have expected Mr Dangerfield to raise from the very beginning given the different complexion it may have placed on his conduct. It is also an issue that, with proper instructions, counsel representing Mr Dangerfield would have been able to put to Constables Hickman and Roden in the Local Court hearings. With the exception of the questions of Constable Hickman as to the precise point at which he dropped Mr Davey's leg, the suggestion that Constable Hickman and Constable Roden actively assisted in carrying Mr Davey for any significant distance was never canvassed. To the extent that Mr Dangerfield was unable to say whether he told the Magistrate about his belief on that point is, I have to say, even more unconvincing - given the Magistrate's findings that Mr Dangerfield acted alone, and given Mr Dangerfield's evidence that he accepted the Magistrate's findings. 73 All in all, I found Mr Dangerfield's evidence on this issue most unsatisfactory and it had all the hallmarks of recent invention. 74 Counsel on behalf of the applicant relied on five primary grounds as to why Mr Dangerfield's dismissal was harsh, unreasonable or unjust. In brief form they were that: · Even if there was information or grounds legally justifying the dismissal, it was still open to the Commission to examine the severity or otherwise of the penalty; · There was manifest unfairness by the Commissioner in dealing with Mr Dangerfield and other police officers due to previous inconsistent treatment of officers involved in assaults on persons in custody. The material produced in relation to this I will refer to as the Broken Hill matter; · The removal of Mr Dangerfield and its consequences particularly going to his personal and economic situation was simply too harsh in all the circumstances; · Mr Dangerfield's otherwise good police record, and those matters that he has dealt with in the performance of his duties as a police officer; · The material relied upon by the Commissioner to remove Mr Dangerfield from the Police Service and the process of considering that material was tainted by procedural unfairness. 75 Turning in the first instance to the issue of procedural fairness or otherwise. A Full Bench of this Commission has considered the correct approach to issues of this kind in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at para [76]. In doing so the Full Bench cited with approval the approach as enunciated by Walton J, Vice-President in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at paras [193] to [200]. 76 It is not my intention to insert into this judgment in toto the entire paras referred to in Van Huisstede that were repeated and cited with approval in Little. For the purposes of the matter before me, however, I do refer to and emphasise para [75] in Little incorporating as it does para [194] from Van Huisstede where it states: In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. And at para [199] and [200]: [199] Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion. [200] I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. (emphasis added) 77 In making his decision to terminate Mr Dangerfield for the reason that he did, the Police Commissioner did not view the video that was available, the transcript of the Local Court proceedings including the Magistrate's findings, or a number of photographs that also formed part of the hearing before the Magistrate but were not in evidence before me. As well, to the extent that the Commissioner informed himself of certain aspects of Mr Dangerfield's behaviour on the night in question, he presumably relied, in part, on a memorandum sent to the Commissioner of Police by Detective Chief Inspector Haines, the Acting Commander of the Penrith Local Area Command, dated 12 November 2001. The memorandum sent reads as follows: ISSUE Senior Constable Dangerfield of Penrith LAC found guilty of Assault Occasioning Actual Bodily Harm. BACKGROUND On the 6 November 2001, Senior Constable Dangerfield appeared for sentencing before Mr Pogson, Magistrate, at the Downing Centre Local Court after charges (sic) of Assault Occasioning Actual Bodily Harm were proved following a two-day hearing on the 22 and 23 October 2001. Mr Pogson in summing up stated, in part, that it was sheer folly by Senior Constable Dangerfield to attempt to remove the victim, Mr Michael Thomas Davey, from the cells in the fashion he did. Additionally, Mr Pogson made mention of the fact that there were other officers available that could have assisted Constable Dangerfield in removing Mr Davey. Mr Pogson dismissed the charges under Section 10 of the Crimes Sentencing and Procedures (sic) Act 1999 on the condition Constable Dangerfield enter a Good Behaviour Bond for a period of twelve months. Senior Constable Dangerfield is presently suspended with pay. RECOMMENDATION It is recommended that the suspension on Senior Constable Dangerfield be lifted and he be placed on restricted duties until the determination of Section 181D proceedings. 78 The issue made by counsel for the applicant concerning the above memorandum was that when Mr Dangerfield responded to the S 181D Notice that was served on him, he responded in part as follows: Without being provided with all the source documents and information that was relied on by you, or by those acting under your delegated authority during the process that resulted in the Notice being served on me, it is not possible for me to properly address all the issues that have been considered during the process. It is only fair that I be given all that source material, and I ask that before you consider my response, and before the 181D process continues, I be given a copy of it. If I am denied access to it, then I am denied procedural fairness. 79 The memorandum received in the Commissioner's office from Detective Chief Inspector Haines of November 2001 was never produced to Mr Dangerfield as part of those documents that he requested in order to properly address the issues raised by the Commissioner as his reasons for dismissing him from the Police Service. That memorandum only came to light when Mr Dangerfield's solicitors subpoenaed it as one part of documentation they sought access to in preparation for this matter. 80 Much was made by counsel for Mr Dangerfield that, in producing the memorandum, there was an accompanying cover note from Chief Inspector Haines which clarified the background to the information contained in his memorandum of November 2001. That comment, dated 6 January 2003, stated as follows: I should clarify that the comments attributed to Mr Pogson in my report came from a telephone conversation I had on 12 November 2001 with Mr Hugh Baker, solicitor for the Director of Public Prosecutions, who had carriage of the Dangerfield matter. Mr Baker verbally relayed his file notes to me in relation to the presiding Magistrate's findings. I have not personally seen the subject transcript. 81 That statement made by Chief Inspector Haines in January this year, as well as the non-production of the original memorandum to Mr Dangerfield, coupled with the fact that the Commissioner did not view the video or read the transcript of the Magistrate's findings, all point, it was submitted, to a fundamental failure on the part of the Commissioner to properly consider all relevant material in coming to the decision that he did to remove Mr Dangerfield from the Police Service on the grounds of conduct. Accordingly, it was further submitted, Mr Dangerfield had been denied procedural fairness in that all relevant material had not been taken into account by the Commissioner and as a consequence, Mr Dangerfield had been the victim of an unfairness in the sense that reference to the material would have caused a different decision. 82 All of the material now having been viewed, I cannot agree with the submission that Mr Dangerfield has been denied procedural fairness in a way that significantly impacts upon the decision ultimately taken by the Commissioner and the reasons relied upon by him to remove Mr Dangerfield from the Police Service. It has to be remembered that Mr Dangerfield was removed from the Police Service because the Commissioner had lost confidence in him as a result of his conduct. The conduct expressly relied upon was: … the mistreatment of a person in police custody, particularly someone who is at some level of intoxication … The New South Wales Police [Service] has a duty to protect members of the public, indeed that is our first statutory responsibility. The evidence before me indicates that you have abrogated that responsibility … In considering this matter I have found that you acted totally inappropriately which has caused me to lose my confidence in your suitability to remain a member of the New South Wales Police. 83 I have now had the opportunity to view all of the material referred to that was not examined by the Commissioner. A consideration of that material does not, it seems to me, alter the ultimate reason as to why the Commissioner came to lose confidence in Mr Dangerfield. That was, and always has been, the way in which he mistreated Mr Davey as a member of the public while he was in his custody. To the extent that the video highlights that fact, the transcript of the Magistrate's findings comprehensively confirms it. Detective Chief Inspector Haines' memorandum of 12 November 2001 adds nothing of substance except a confirmation of the Magistrate's decision and reference to some passing comments of his. It is difficult to accept that the Commissioner, having viewed that material, would have come to a different view. To adopt the words of Peterson J in Miller v NSW Commissioner of Police [2002] NSWIRComm 296 at para [113] In the present matter counsel referred to a number of documents contained in the source documents to which reference was not made by the Commissioner. Each of those documents are now in evidence in these proceedings and in my view do not constitute evidence, the effect of which would cause a contrary conclusion on the vital point in issue, namely the applicant's behaviour. 84 In conclusion on this point, I do not find any relevant procedural unfairness visited upon the applicant such as would have caused a different decision being made by the Commissioner in relation to Mr Dangerfield's removal from the Police Service. 85 Counsel for the applicant further submitted that Mr Dangerfield's dismissal by the Commissioner was harsh, unreasonable or unjust when compared with the treatment of other officers within the Police Service who had been convicted of assault but who had not been dismissed. 86 To lay the groundwork for this submission, the applicant's solicitors served a Summons for Production in respect of certain documents on the Commissioner of Police in December 2002. Of the documents sought for production, one group was identified as: All files, documents, reports, submissions, including but not limited to the 181D file held by the NSW Police Service, which relates to a 181D Notice served on the following members of the NSW Police Service: Michael Duxbury; former Senior Constable Peter Watson; and Senior Constable Peter Schonberg. The said 181D Notices served on the above named officers in relation to an allegation that on 5 December 1997 they assaulted a man by the name of Rodney Carter at the Broken Hill Police Station. 87 In response to that Summons for Production, some three lever arch files of material was produced. From those three lever arch files, the solicitors for Mr Dangerfield extracted a number of documents they considered relevant that formed the basis of exhibit 5 before me. Those documents revealed, and it is not in dispute, that in 1997 the three above named persons, then police officers in the NSW Police Service stationed at Broken Hill, were involved in the arrest of Mr Rodney Carter in relation to a drink driving offence. Mr Carter resisted the arrest and police at the scene called for assistance. Mr Carter was later conveyed to the Broken Hill Police Station in a caged truck and on route from the van dock to the Charge Room, Mr Carter was assaulted by the three police officers abovenamed. 88 Following a complaint and the inquiry that followed, Senior Constable Schonberg pleaded guilty to a charge of assault and was dealt with at the Broken Hill Local Court in June 1998. He was convicted, fined $1000 and placed on a three year bond. Senior Constable Duxbury and Watson both pleaded not guilty. These matters were subsequently heard in the Local Court in October 1998. Both were found guilty, convicted, fined and placed on three year bonds. Senior Constable Watson subsequently appealed his conviction and sentence to the District Court of NSW, and his conviction and sentence were subsequently quashed. 89 Having regard to the above events, and the outcome in relation to the three officers named, steps were taken pursuant to the Police Service Act to consider their conduct under the Commissioner's Confidence provisions, and specifically s 181D of the Act. Subsequently all three officers were issued with a Performance Warning Notice pursuant to such a review. 90 In a nutshell, counsel for Mr Dangerfield submitted that, on any view, the circumstances giving rise to the Broken Hill incident involving the three police officers, was worse on any comparative basis than the incident involving Mr Dangerfield. Further, that when compared with the Performance Warning Notices issued to those three officers and their ability to remain within the NSW Police Service, Mr Dangerfield's removal from the Service for similar type conduct was harsh, unreasonable or unjust in all the circumstances. 91 Such an approach is, I believe, ultimately superficial and too simplistic. What has to be done if such a proper comparison in outcomes can be made is the necessity to look at the facts and circumstances of each case. While at first glance the background facts may be of the same general tenor, the precise details as well as the prevailing circumstances of the incident and the personal circumstances of the three police officers was not before me in any detail. While on one view it could be said that the three police officers involved in the Broken Hill matter got off lightly, and without knowing anything further as to the particulars of matter, members of the community do not expect to be assaulted while in police custody. As Peterson J stated, a view with which I concur, in Wells and the Commissioner of Police (2000) 100 IR 106 at para [37]: Members of the public are entitled to accept that they may enter a police station on legitimate business without being subjected to the risk of physical or other assault. If that belief is impaired by the conduct of members of the Police Service then it seems to me unavoidable that the integrity of the Police Service as a whole is affected detrimentally to a very serious degree. 92 While Mr Davey may not have entered the Penrith Police Station in the same circumstances as the victim of the assault at the hands of Mr Wells, he was nevertheless formally detained pursuant to the powers of the Police as an intoxicated person and, in every other respect, he was entitled to believe that he would not be subjected to the risk of physical of other assault from any police officer while in their custody. 93 Paragraph 6 of the Summons to Produce also sought the production of documents in the following terms: All other 181D files, or any other document however described, held by the NSW Police Service, which relates to any member of the NSW Police Service being convicted of assault or any other offence in the nature of assault, during the period 1 January 1997 to 30 September 2002, including but not limited to any files, reports, submissions, or ant other document however described, which deals with whether or not such Officers should or should not be, dealt with under section 181D or section 173 of the Police Service Act (NSW) or the Police Act (NSW). 94 Apart from the documentation produced by the Police Service in response to the request for documents concerning the Broken Hill matter, nothing additional was produced by the Police Commissioner in answer to the specific request as outlined in paragraph 6 of the Summons for Production. On that issue, counsel for the applicant submitted, in accordance with the rule of evidence referred to as the rule in Jones v Dunkel, that inferences adverse to the Commissioner may be drawn. That is, he submitted, there are other matters relating to members of the NSW Police Service being convicted of assault or offences in the nature of assault during the period referred to which would have been considered pursuant to the provisions of the legislation referred to. As I understood the submission on this point, the fact that nothing has been produced should raise an inference in favour of the applicant that there are other police officers who have been reviewed for such actions and who have not been removed from the Police Service. I cannot agree with that submission. 95 In the first instance, the principle in Jones v Dunkel (1959) 101 CLR 298 is that the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party's case. But as Cross on Evidence: 5th Edition at [1215] states: 'as a general principle, there are circumstances in which it has been recognised that such an inference is not available, or if available, is of little significance. The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.' 96 In addition it is difficult to know whether the fact that nothing was produced could give rise to the inference that counsel for Mr Dangerfield submits. For instance, when this matter was raised, counsel for the Commissioner said: When the documents were returned to the Registry under the subpoena the Registry was in fact told there are a whole range of reasons why it was difficult to produce anything more than what had been produced to the Registry, and my instructing solicitor was told, well it is unnecessary to do anything more. The other side was not there and so nothing more was done. 97 I have to say I see no real substance in the tenor of the submission about the alleged failure by the Commissioner to produce documents pursuant to paragraph 6 of the Summons for Production identified above. To start with, the subpoena was filed on 17 December 2002 and the summons complied with in January 2003. This matter was heard before me in February. If there was any strongly held view on the part of the applicant that the Commissioner had failed to comply with the subpoena, then it was open to the solicitors for the applicant to press this matter by way of interlocutory proceedings before this hearing. 98 As well, I have had cause to refer to the transcript of the return of the summons to produce before the Deputy Industrial Registrar on 30 January 2003 and 6 February 2003. In the proceedings before the Deputy Industrial Registrar on Thursday, 30 January 2003 the point was raised by the solicitor for the applicant that, in relation to item number 6 in the summons for production, it had not been complied with. Ms Gray, who appeared on behalf of the Commissioner, indicated that she was unaware that not everything had been produced and that she would make further inquiries and report back. The matter was before the Deputy Industrial Registrar the following week for that purpose. On 6 February, there was no appearance on behalf of the applicant and Ms Gray appeared on behalf of the Commissioner. Her explanation and comments to the Registrar, and the decision taken by the Registrar were brief, and for the purposes of this matter, set out below: GRAY : The last time we came before you, Registrar, last week, it was indicated by the applicant that he believed that we had not complied with item 6 of the summons. REGISTRAR : Issued to him? GRAY : Issued to us. That is the reason I am here. REGISTRAR : He said you had not complied? GRAY : Yes; we had not complied. Although it doesn't appear to be pressed today, I just put on the record that we have conducted extensive searches. The difficulty, at this stage, is that the electronic data base that we have does not list the matters that he is seeking - by offence; only by name, so, therefore, we would have to carry out a physical search of all the files. We have commenced this physical search of the files. However, there are a large volume of them and at this stage we haven't come across any that meet - - - REGISTRAR : I see the matter is listed for 17 February. We've got no applicant, so there's no order that I'm making at this point in time, Ms Gray. Thank you. GRAY : Thank you. 99 Following those proceedings the matter was adjourned until the hearing before me. To the best of my knowledge the issue of whether or not the Commissioner had complied with paragraph 6 of the Summons for Production was never pressed beyond the mention of that matter before the Deputy Industrial Registrar on 30 January last. In all the circumstances, I do not consider that it is a tenable submission for counsel for the applicant to now state in final submissions that the absence of any further material from the Commissioner must, of itself, give rise to the adverse inference that he suggests relying on the rule in Jones v Dunkel. 100 As I have already indicated, I was not impressed by the tenor of Mr Dangerfield's evidence before me. Apart from my findings that go directly towards the question of his credibility, I did not form the view that he was particularly contrite, nor his concession that what he did was wrong particularly convincing. If anything, I formed the view that Mr Dangerfield felt badly done by and perhaps somewhat unfairly singled out by the Commissioner given the presence of other police officers on the morning of 30 September 2000. 101 The Magistrate's findings, as accepted by the applicant, was that Mr Dangerfield 'hadn't sought any assistance from any other Constable that was there on that night and that he made a decision to remove Mr Davey regardless of what he said or did.' On that point it is necessary I believe to consider whether the Commissioner should have had regard to the conduct of the other officers who were present when Mr Davey was being removed from the Police Station and who could have been said to have been either indirectly complicit in Mr Dangerfield's conduct and/or condoning of it. Included amongst those present were officers of equal rank to Mr Dangerfield. None of those other officers have, to my knowledge, been subjected to any formal disciplinary procedures except to the extent that they were all interviewed by Inspector Bray as part of his investigation of Mr Davey's complaint. Following the interviews and the viewing of the relevant videos, Mr Dangerfield was identified as the precipitating and primary perpetrator of the actions leading to his assault on Mr Davey. Later testing of that investigatory material, particularly in the Local Court hearing, confirmed that finding. 102 Comparing the disciplinary treatment of police officers in relation to a course of conduct for the purposes of determining whether the Commissioner's decision was unjust was considered by Boland J in Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333. Those matters concerned the dissemination of pornographic material on the Police Service Memo System - Mr Burrows and Mr Giardini being the initiators of that dissemination - which was in turn sent on by other police officers and received by officers senior to Mr Burrows and Mr Giardini who did nothing to stop the conduct. In relation to the matter concerning Mr Giardini on the relevance of this sequence of events Boland J stated at para [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. And at para [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: F ederated 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. 103 While I agree with the ultimate view expressed by Boland J, I do not consider that the same conclusion can be reached here. In Burrows and Giardini there were a significant number of other police officers who had engaged in the same conduct as Mr Giardini and Mr Burrows - that is, they had in turn disseminated the pornographic material once they had received it. The reason why Mr Burrows and Mr Giardini were singled out for removal was that they were identified as the primary initiators of the dissemination. On that point, Boland J had this to say in Burrows and Giardini at para [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. 104 In Mr Dangerfield's case his conduct was substantially different in nature and degree when compared to the other officers on duty that night. He was in charge of the Charge Room. It was his decision alone to remove Mr Davey from the Police Station and the manner in which he chose to do it and continue to the extent that he did was his. 105 The actions of the other police officers present on that night, while deserving of criticism, does not of itself, it seems to me, detract from the decision taken by the Commissioner to remove Mr Dangerfield from the Police Service. In his decision in Wells, Peterson J considered an assault by a police officer on a young person who had gone to a Police Station for the purposes of legitimate inquiries. In the particular circumstances of that matter, his Honour took into account certain provisions concerning the mental health of the police officer as substantiated in evidence before him and before Local Court proceedings that preceded the review before his Honour. In coming to the decision he did, that in all the circumstances Mr Wells' removal was harsh, his Honour said this at para [36]: Where an applicant has engaged in conduct of a kind depicted in the video in this case, it seems to me that the police officer has thrown away any substantial claim that might be made in terms of the officer's interests unless the conduct complained of can be found to have been justified in some way. It seems difficult to identify that justification merely as mitigating circumstances where an innocent visitor to a police station is attacked as a result of a police officer's perceptions or misconceptions of his attitude or behaviour. I consider that the justification for such conduct would have to be at a relatively high level before it could be accepted as an aberration which should not have serious long term consequences with respect to employment. The suffering of a temporary, recognised mental condition may satisfy that higher level of justification. In the absence of such a condition I consider that the conduct exemplified in this case, if intentionally, impulsively and aggressively undertaken would readily justify dismissal pursuant to the provisions of s181D . (my emphasis) 106 His Honour's conclusion, as emphasised, is one with which I readily concur. 107 In the matter before me, the Magistrate's finding was that Mr Dangerfield had acted recklessly, that is, utterly careless as to the consequences of one's actions or, not caring whether harm occurred or not: R v Williams (1990) 50 ACrimR 213 at 222-3. The only real difference between the factual circumstances in Wells as opposed to the matter before me, is that the victim in Wells was, as described by Peterson J, 'an innocent visitor to a police station' whereas in the matter before me, Mr Davey had been placed in custody for his own safety and the safety of others, and assessed as an intoxicated person. 108 That classification does not mean a lesser standard of care and responsibility. If anything it places the onus squarely on the police officer to ensure that people who come under his care, control and authority are not subjected to the risk of physical or other assault. Mr Davey may well have aggressively and argumentatively resisted Mr Dangerfield's insistence that he leave the Police Station. However, as the evidence discloses, Mr Davey's aggressive and argumentative state only arose when Mr Dangerfield decided to evict Mr Davey at 3 am in the morning. As Mr Dangerfield himself reluctantly and belatedly acknowledged, he could have and should have simply left him to continue to sleep. 109 On the evidence before me, as an intoxicated person, the police were entitled to detain Mr Davey for a maximum period of eight hours. At the time that Mr Dangerfield made the decision, arbitrarily it would seem, to discharge Mr Davey from the Police Station, he had been in custody some three and a half hours. Given that Mr Dangerfield knew that attempts had already been made to return Mr Davey to his home without success, it is a matter of concern that a police officer was prepared to simply place Mr Davey on the street at 3am, still in a somewhat intoxicated state, without care or concern for his immediate wellbeing. 110 In all the circumstances, I am of the view that the Commissioner's reasons for his decision to remove the applicant from the Police Service were not unreasonable or unjust in all the circumstances. Further, there is nothing that Mr Dangerfield has placed before me, with the exception perhaps of the economic consequences that flow from his removal and taking into account his prior good record as a police officer, that would suggest that he has discharged the burden placed on him to demonstrate that his removal from the Police Service is otherwise unreasonable or unjust. 111 Taking into account the economic consequences that flow from Mr Dangerfield's removal as a police officer and his conduct as a police officer up to the time of the incident before me does, I believe, require me to consider whether, in all the circumstances, while I consider that the decision made by the Commissioner was neither unreasonable nor on the face of it unjust, whether the penalty imposed is too harsh. 112 There are factors which it is proper to take into account in determining whether the Commissioner's was too harsh in all the circumstances. In Mr Dangerfield's case there is clearly his personal family and financial circumstances. As well, three police officers gave positive evidence on behalf of Mr Dangerfield having regard to his conduct and abilities as a police officer: · Sergeant Thomas Galvin · Sergeant Paul Griffin · Sergeant David Clouston 113 Each officer gave sworn evidence in support of a prepared statement that was tendered in evidence before me. Sergeants Griffin and Clouston both stated that they 'were aware of the circumstances surrounding his (Mr Dangerfield's) dismissal from the NSW Police Service.' When pressed in cross-examination it would be fair to say that their respective knowledge of the 'circumstances' referred to what they had been told by others at work or by the applicant 'in broad detail.' It is difficult to place significant weight on their otherwise positive evidence for Mr Dangerfield when cast in that light. 114 Sergeant Galvin did have a greater and more detailed knowledge of the facts and circumstances involving Mr Dangerfield's removal. In his statement Sergeant Galvin said: During the time that I worked with Senior Constable Dangerfield, I always found him to be a competent and trustworthy officer and I never saw any behaviour by him that caused me to have any concerns about his suitability to be a member of the Police Service. 115 When questioned as to his opinion of Mr Dangerfield's conduct concerning the incident in question, Sergeant Galvin acknowledged as follows: Q. Let's look at the flip side, was the way in which you understand Mr Dangerfield was removed or released, Mr Davey who was the person in custody on the night, appropriate? A. No probably not, it wasn't appropriate. Q. Why do you say it wasn't appropriate? A. Probably if he refused to go there may be some suggestion that he may be still slightly intoxicated. I've spoken to Mr Dangerfield, he knows he'd made a mistake on this occasion, I spoke to him since the court case. He knows if he could do it all over again he would do it differently. I think the penalty far outweighs the crime. Q. Would you deal with my question? A. Sure. Well appropriate? No. Q. Why wasn't it? A. I just - I think it could have been done a different way, could have left him a little while longer. Q. It was inappropriate amongst other things because it involves injuring a person otherwise in custody? A. That's correct. Q. As you understand it unnecessarily so? A. Yes. Q. You understand that the Commissioner from your training and experience, the Commissioner did not condone assault on people who are kept in custody? A. That's correct. 116 Reference to s 181F(3) requires me to have regard to the interests of the applicant and to the public interest in weighing up the above matters. While prior decisions of this Court have stated that both matters must be given equal and due consideration, I have found this a difficult matter to reconcile. On any view Mr Dangerfield's actions towards Mr Davey on 30 September 2000 were inexcusable as a member of the Police Service. That action alone, it seems to me, bears heavily against his interests in any proper consideration of this matter. 117 As well, I remain concerned about those matters that go directly to the question of Mr Dangerfield's credit, and the view that I formed as to the evidence he gave as to his belief concerning the actions of Constables Hickman and Roden in removing Mr Davey from the Police Station. 118 I am conscious that the view I have come to about that evidence, reflecting adversely on Mr Dangerfield, is conduct of a particular kind occurring after the date of his removal from the Police Service. Section 181F does set out the stages that must be followed by the Commission in reviewing the Commissioner's decision - all predicated on facts and circumstances known and procedures followed up to the time the Commissioner makes his/her decision to remove the officer concerned. The appropriateness of the Commission considering later facts and circumstances in undertaking its review under s 181F was considered by Walton J, Vice-President in Starr v Commissioner of Police at para [325]: Where the applicant brings into the proceedings facts and circumstances arising after his removal which bear upon the issues to be determined those matters must be taken into account in considering whether a removal was harsh unreasonable or unjust: s181F(1)(b). It is by this means that the later conduct of the applicant bears upon the determination in this matter as to whether his removal from the Police Service was harsh, unreasonable or unjust. In any event, as properly conceded by Mr Docking, that conduct goes to the applicant's credit as a witness. 119 As already indicated, I am of the view that Mr Dangerfield's evidence before me was such as to go directly to his credit as a witness. In my view it also goes directly to those matters I must consider under s 181F(3) of the Act. 120 In weighing up those matters as identified in s 181F (3)(a) and (b) I believe that, in the circumstances before me and the findings that I have made, Mr Dangerfield's interests are outweighed by public interest considerations. Given the view that I have come to about this matter generally and particularly those matters that go directly to Mr Dangerfield's credit, I am not satisfied that he could return to the Police Service and contribute to the maintenance of the integrity of the Service in a way that the public interest demands and expects. 121 In all the circumstances it would not be appropriate for me to order the re-instatement or re-employment of the applicant or to order any payment by way of compensation. I consider that the public interest in maintaining the integrity of the Police Service supports the conclusion that the removal of the applicant, taking into account all of the circumstances and evidence before me was not harsh, unreasonable or unjust. 122 I order that the application be dismissed. ---------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.