Industrial Relations Commission of New South Wales CITATION : Miller v Commissioner of Police [2002] NSWIRComm 296 APPLICANT Julian Cyril Miller PARTIES : RESPONDENT Commissioner of Police FILE NUMBER: IRC7926 of 2001 CORAM: Peterson J CATCHWORDS : Reinstatement of employment - removal of police officer - allegations of misconduct involving female police officers - review of order - whether removal was harsh, unreasonable or unjust - procedural fairness - reinstatement ordered with loss of salary for interregnum - length of exemplary service - reinstatement ordered from 18 November 2002. Police Service Act 1990 ss181D 181E 181F LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1995 Newton v Commissioner of Police (No 1) (1998) 85 IR 119 Newton v New South Wales Police Service (No 2) (1999) 87 IR 66 Little v The Commissioner of Police (No 2) [2002] NSWIRComm 52 Grant v Downs (1976) 135 CLR 674 Esso Australia v the Federal Commissioner of Taxation (1999) 168 ALR 123 Mann v Carnell (1999) 201 CLR 1 Corporate Affairs Commission of New South Wales v Yuill and Ors (1990-1991) 172 CLR 319 Smith and ors v Western Australia and ors (2000) 98 FCR 358 The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission [2002] HCA49 CASES CITED : Oswald v New South Wales Police Service (No 2) (1999) 90 IR 42 Van Huistedde v Commissioner of Police (2000) 98 IR 57 R v Johnston (1998) 45 NSWLR 362 Mason v Electricity Commission of NSW (1995) 62 IR 436 Antonakopoulos v State Bank of NSW (1999) 91 IR 385 McCabe v NSW Police Service (unreported 3 July 1996, Matter No IRC3112 of 1994) Bigg v NSW Police Service (1998) 80 IR 434 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Wang v Crestell Industries Pty Limited (1997) 73 IR 454 HEARING DATES: 05/17/2002; 05/20/2002; 05/21/2002; 05/22/2002; 05/27/2002; 06/06/2002; 07/01/2002 DATE OF JUDGMENT: 11/15/2002 APPLICANT Mr B G Docking of counsel SOLICITOR Walter Madden Jenkins SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr J H Pearce of counsel SOLICITOR Legal Services Branch NSW Police SYDNEY. JUDGMENT: - 55 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PETERSON J DATE: 15 NOVEMBER 2002 Matter No IRC7926 of 2001 JULIAN CYRIL MILLER v COMMISSIONER OF POLICE Application under section 181E of the Police Service Act 1990 for review of an order of the Commission of Police. JUDGMENT 1 Julian "Dusty" Miller served in the New South Wales Police Service from January 1974 until he was removed by order of the Commissioner of Police on 12 November 2001. Applying the provisions of s181E of the Police Service Act 1990 ('the PS Act'), he seeks an order reinstating him to the Police Service and affording him wages lost over the period since his removal. 2 Mr Miller had reached the rank of Senior Sergeant and had particular strengths in officer survivor ('OS') skills. These are the skills required by members of the Police Service to enable them to deal with violent incidents on the street. He was a designated trainer of such skills to other members of the Service and it was the provision of this training, in particular to three female probationary constables, that led to his removal from the Service at age 52 after 26 years exemplary service. 3 His service was marked by awards and other recognition for the efforts he made in the carrying out of his duties. For example, he engaged in activities such as the repeated crossing of flood waters to save a stranded mother and her children; he was able successfully to restrain a deranged person threatening police with a sabre; and in another example disarmed a man who was threatening police with a firearm. 4 The character references provided in support of him in this case speak very highly indeed as to his character, his application to duty and his career achievements. His referees find it impossible to accept the allegations made against him. 5 The application for reinstatement is one in a now well familiar process. The Commissioner of Police is empowered by s181D of the PS Act to remove a police officer from the Service where 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" (s181D(1)). The nature of the process and the review provided by Division 1C of the PS Act of the Commissioner's decision by this Commission is now reasonably well settled (see Newton v Commissioner of Police (No 1) (1998) 85 IR 119 and Newton v New South Wales Police Service (No 2) (1999) 87 IR 66). 6 The nature of the test applicable has been recently considered by the Full Bench in Little v The Commissioner of Police (No.2) [2002] NSWIRComm 52. As I apprehend the position, the relevant loss of confidence in the police officer's suitability to continue as a police officer, to which s181D(1) refers, may be insufficient to justify the removal, in the sense that the removal may subsequently be held to be harsh, unreasonable or unjust even where the initial loss of confidence itself may be supportable by the relevant lack of competence or integrity or by the officer's performance or conduct. Consideration may also be given to issues of procedural fairness in determining the application; I shall deal with this aspect later. The Charges 7 The matter of Mr Miller's dismissal was initiated, in accordance with the statutory scheme, by a notice served upon him by the Commissioner, which notice was in the following terms: Section 181D of the Police Service Act 1990 enables me to remove an officer where I have lost confidence in their suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. In accordance with paragraph 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I am considering your suitability to continue as a police officer taking into account your conduct on the basis of the following grounds:- 1. On one occasion during August 1999 you sexually harassed Probationary Constable Hay during provision of Officer Survival (OS) training at Campbelltown Police Station. 2. On three occasions between July 1999 and September 1999 you sexually harassed Probationary Constable Gorton during provision of OS training at Campbelltown Police Station. 3. On three occasions between September 1999 and December 1999 you sexually harassed Probationary Constable Gorton during provision of OS training at her mother's home in Leumeah. 4. On one occasion between December 1999 and February 2000 you sexually harassed Probationary Constable Gorton during provision of OS training at her home in Leumeah. 5. On two occasions during April 1999 you sexually harassed Probationary Constable Hughes during provision of OS training at Campbelltown Police Station. 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 paragraph 181D(3)(b), 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. PJ Ryan Commissioner of Police Dated: 22.8.01 8 A response to that notice was served on the Commissioner by Walter Madden Jenkins, solicitors for Mr Miller, on 9 October 2001. The response detailed the applicant's history in the Police Service. Leaving aside the allegations related to these proceedings, the applicant's history, which was not put in issue in the proceedings, seems to me to have been exemplary indeed. His activities as a policeman, a supervisor and also as a member of the Tactical Response Group involved him in many difficult policing situations which he seems to have handled commendably. On an overall assessment of his experience and abilities, one would incline to the view that Mr Miller was an extremely valuable member of the Police Service whose abilities ought not be lost to the people of New South Wales unless that loss is unavoidable and fully justified. 9 A short excerpt from Mr Miller's response is instructive: I have been a Weapons Instructor and Officer Survival Instructor since about 1987; over that time I have instructed thousands of police. I have never had anyone make any allegations about me. I have always been very enthusiastic in my approach to my instructional duties, and some of those I have instructed have said that even though they did not like my stern approach to training, they felt that they had benefited from my training. This has been born (sic) out by numerous persons approaching me at a later date and informing me that they had used the skills I had taught them and they had worked effectively. One person in particular is former police officer Senior Constable Sharon White who was involved in a particular arrest of an offender for warrants. During the arrest the offender attacked Senior Constable White and her male colleague. The offender managed to remove a pistol from the young Constables holster, Senior Constable White saw what had happened and grappled with the offender. A shot was fired but Senior Constable White was able to stop him firing any more shots and she was able to retrieve the weapon from him. She later saw me and thanked me for the training I had given her because in her words "Your training was very hard but your lesson sunk in. Through that I had the confidence to stop him using the pistol and was able to take it off him. Without your training we could have been killed" I have received a number of awards and complimentary remarks in my career and I have listed them below: 1988 Jack McNeill Award. Awarded to me for the bravest action by a member of the T R G for 1988 - I negotiated with, and took a rifle from a male who had just murdered his fellow worker. 1989 Recognised for outstanding actions in disarming the above offender. 1990 Congratulated for my presence of mind in stopping the escape of a dangerous offender who was in the cells at Campbelltown Police Station who had concealed weapons and keys on his person with the intention of also releasing two other dangerous prisoners. 1991 I received the National Medal. 1998 Complemented by the Local Area Commander for good work regarding the investigation, execution of a search warrant, and the arrest of an offender for an indictable quantity of drugs. 2000 Commended by the Local Area Commander for the arrest of two offenders who had just committed an armed hold up. 2000 I received the 1st Clasp to the National Medal. 2001 I received the Patrol Commander Commendation for Bravery in rescuing a number of civilians who had been trapped by flash flooding in the Green Valley area. 10 The response identifies August 2000 as the time at which the allegations of Mr Miller's conduct with female probationary constables was first raised with him by Inspector Waters, the Crime Manager at Campbelltown. After receiving a brief overview of the allegations the applicant could not believe what was being said to him. He was shocked and in a state of disbelief. He later broke down. He was referred to a psychologist who diagnosed him as suffering from severe post-traumatic stress syndrome. After several consultations with the psychologist he noted that "It was only after those consultations I have been able to talk about the various traumatic incidents I have come across in the course of my police duties without becoming extremely upset". 11 The applicant, in his response, denied the allegations against him. This position was maintained in his oral evidence in these proceedings where he attested to never, other than inadvertently, having touched the three complainants on inappropriate parts of the body. 12 On 12 November 2001 the Commissioner of Police made an order under s181D(1) of the PS Act 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 6 September, 2001 pursuant to section 181D(3)(a) of the Police Service Act and the written submissions furnished by you through your solicitor. 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. 13 The Statement of Reasons was as follows: 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, a Notice served upon you on the 6 September, 2001 pursuant to s181D(3)(a) of the Police Service Act 1990, together with your written submissions provided through your solicitors in response to the grounds set out in my Notice. Those grounds refer to the criteria of your conduct and relate to you sexually harassing female police officers. I note in your written submissions you suggest that you have suffered from procedural unfairness because I have not made available to you all of the documents and other material on which I have relied in deciding that I do not have confidence in your ability to continue as a police officer. I reject that suggestion on the basis that all of the documents and material that were before me when I made my decision were provided to you at the time you were served with the s181D(3)(a) Notice. There is material before me which discloses that three junior female police officers allege they have been sexually harassed and in the case of two, sexually assaulted by you. These are most serious allegations which have been made individually by the officers concerned, although they have a similarity about them. The allegations are strengthened by the fact that they were relayed to a number of male officers and in one case, the female officer confided in a female friend as to the distress and embarrassment she suffered. The material before me discloses that you undertook training of these very junior officers because of your expertise in this field. At the time this is said to have occurred you were a very senior officer in relation to them and you were in a position of power over them. Taking into account your position and experience, you failed to consider the situation of compromise in which you placed yourself by conducting these training sessions on your own with the female officers. Of particular concern to me and which I find most disturbing is the material, with which you have agreed, that on a number of occasions this training took place in their private residences. I find this unacceptable behaviour on your part. I note that you have totally denied these allegations on all occasions which they have been put to you, however, having assessed all of the material, I find direct and indirect corroboration for many of the issues raised both by each of the officer's involved and by other parties. I find most a (sic) disturbing that two of the officers claim that you told them not to say anything about these training sessions to other police, indicating that you 'could lost your job'. When interviewed, you agreed you may have said, "I'm not supposed to be doing this" , however you denied saying that the officers could not tell anyone, contending this comment related to carrying out choke hold defence training that had been removed from the Training Curriculum. Your written submissions have reiterated your denials. However, you have made a number of concessions about the circumstances, including that these training sessions took place; they were conducted in private in a one on one basis; some took place in the officer's private residences; there was comprehensive physical contact between yourself and these young women; you suggested to them, their need to be more assertive and their uncertain position if they did not raise their skills in this field. The major concession of your denials is that you agree you may have inadvertently touched these young women in inappropriate areas of their bodies during this training. As I have stated, these are the most serious of allegations, which if accepted would constitute an abuse of your power and office and indicate that you have identified vulnerable junior female officers and sought them out. On review of their comprehensive evidence about these matters, I fail to identify reasons why these young women would raise such significant matters about you. You have asserted that they may have made such allegations because you were stern in dealing with them. On the basis of what I have read, I cannot accept that assertion as having validity. I have noted in your written submissions the many officers you have named that you suggest would support you and your assertion as to your good character. I have also had regard to the material you have provided concerning your work history and the commendations you have received. I weighed up those matters as favourable to you in making my determination. I have also taken account of the matters you have raised in mitigation concerning your medical condition and your personal circumstances. I have also had regard to the comments of your former and current commander's about your commitment and abilities in policing. As I have stated, I have carefully reviewed all of the material associated with this matter, which I have stated is very serious. The Police Service has a duty to protect its officer's and whilst I have taken note of your strong denials, I find that I cannot accept your assertions as sufficient negation of the issues which have been raised concerning you. I have exercised my statutory responsibility to make a determination about my confidence in you to remain a police officer. I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service. I therefore remove you from your position as a police officer. 14 By s181F(1)(a) the Commission, in reviewing the decision, must first consider those reasons of the Commissioner. Section 181F(1) also requires the Commission to consider secondly the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner in answer to the applicant's case. Section 181F(2) provides that the burden of establishing the removal was harsh, unreasonable or unjust remains at all times upon the applicant. 15 It is perhaps apposite to mention at this point the provisions of s181F(3) which is in the following terms: 181F. Proceedings on a review (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)). Issue of Legal Professional Privilege 16 The process of initiating an investigation and, if found justified, removal of an officer of the Police Service, is undertaken by a unit under the supervision of Inspector Alan Maurice Champion. When incidents relevant for consideration by that unit arise, a file is commenced and relevant interviews are then undertaken, and the records of those interviews are gathered, together with any other relevant material. An officer of the unit analyses the material and makes a report in the course of which these matters are summarised and findings are made. A submission is then prepared and placed before the Commissioner. It is upon the material contained in the submission and/or annexed to it that, generally, the Commissioner has recourse to for the purpose of making his decision. 17 In these proceedings Inspector Champion gave evidence on the limited matter of obtaining of a legal advice, in support of an attempt to avoid production of that legal advice on the ground of legal professional privilege. In the course of that evidence, the Inspector said that for the purposes of the preparation of such matters, the Commissioner had authorised the Inspector to obtain legal advice, at his discretion, in cases in which it seems the Inspector considered it was appropriate. He described the advice as tending to be sought in cases of complexity and involving questions of the weight of evidence. There really is no doubt that this case would fit into that category. In any event, a legal opinion was produced to the Commission and, by consent, read by it for the purposes of a ruling upon its production. The Inspector's evidence also was that the Commissioner had not in any instance (and therefore this case, although he had no independent recollection of it) sought access to any such legal opinion nor had he discussed with Inspector Champion the content of any particular legal opinion. Therefore the Inspector was able to state that the Commissioner did not have recourse to the legal opinion directly in the present matter. 18 The applicant sought access to the legal opinion and relied on the provisions of s181E(3) as supporting its right to access on the basis that the legal professional privilege did not attach to the document because the statutory provision required its production. Section 181E(3) is in the following terms: 181E. Review generally (3) 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 section 181D (1). 19 The Commissioner of Police submitted that the statutory provision did not affect the common law right to claim legal professional privilege in this matter and that in any event the question did not arise because the document was not one which was relied upon by the Commissioner within the meaning of s181E(3). 20 In the course of the proceedings I gave the following ruling: I have formed the view that section 181E(3) of the Police Service Act 1990, abrogates the privilege which would otherwise attach under common law to legal advice sought for the dominant purpose of taking legal advice of assistance or of use in legal proceedings, but only where it falls within the description "document or other material upon which the Commissioner has relied" as set out at s181E(3) of the Police Service Act 1990. The construction seems to me to apply, if the Commissioner is to avoid the production of a particular advice, evidence would need to be adduced that the legal advice in question was not so relied upon. In the circumstances and given the progress of this case, I consider that the police service should have the opportunity to consider its position in that regard in the light of the ruling, and to counteract the evidence it may wish to put on in that regard. It seems to me unnecessary for the Commission to refer to the advice directly, for the Commission itself to refer directly to the advice at this stage, although that might be appropriate as the matter develops. 21 The reasons for that conclusion may be shortly stated as follows. The dominant purpose test has now replaced the sole purpose test in relation to a claim for legal professional privilege originally laid down by the High Court in Grant v Downs (1976) 135 CLR 674. In Esso Australia v the Federal Commissioner of Taxation (1999) 168 ALR 123, the High Court by majority adopted for the purposes of the application of the common law right to claim legal professional privilege, the same test laid down for the purpose of the taking of evidence by the Evidence Act 1995, the dominant purpose test. That is to say a document which is produced for the purpose of obtaining legal advice or for use in legal proceedings will be afforded legal professional privilege (or client professional privilege as the Evidence Act describes it) where the dominant purpose is as described rather than the sole purpose. 22 In this case the question of privilege arises not in the context of the Evidence Act but in the context of the Commission's procedures relating to the production of documents (see Mann v Carnell (1999) 201 CLR 1). 23 As to the abrogation of the privilege by s181E(3) the judgment of the High Court in Corporate Affairs Commission of New South Wales v Yuill and Ors (1990-1991) 172 CLR 319 is pertinent. In that matter the court was required to consider whether s295(1) of the Companies (New South Wales) Code which empowered an inspector to require an officer of a corporation, the affairs of which were being investigated, to produce such books of the corporation as were in his custody or were under his control, conferred a power which was subject to any claim of legal professional privilege. In the course of judgment Brennan J, who with Dawson and Toohey JJ was in the majority on the particular questions in that matter, said: "Then, in Baker v Campbell (1983) 153 CLR 52 at 90, 96-97, 117-118, 123, this court held that the power of a police officer executing a search warrant issued under s10 of the Crimes Act 1914 (Cth) is restricted by legal professional privilege. The court by majority overruled the proposition that legal professional privilege is limited to judicial and quasi-judicial proceedings, holding that a statute should be construed as preserving a right to legal professional privilege unless the privilege is abrogated by express words or necessary intendment." 24 The members of the court in the minority, Gaudron J and McHugh J, in separate judgments applied the same rule to the particular statutory provision in question and came to a contrary conclusion. Thus the rule was uniformly applied by all members of the court, although to different effect. As to the application of the rule Gaudron J made this observation: The rule that important common law rights are abrogated only by express words or necessary implication is one which can be applied only to provisions capable of abrogating those rights. Thus, it can be applied to a provision creating an obligation to provide information - at least if the obligation is expressed in general terms. However, this is not a case which is concerned with the meaning of words creating an obligation to provide information. Rather, it is concerned with the meaning of an exception or qualification to such an obligation. 25 The present matter is of course one which relates to a provision creating an obligation to provide information. The words "all documents and other material" seem to me unavoidably to constitute express words which can only have the effect of abrogating a claim for legal professional privilege providing that the qualifying words "on which the Commissioner has relied" do not exclude the document from the obligation to provide information. In that sense, the Commissioner's submissions are correct; namely that, if the legal advice was not a document falling within that qualification, the question of privilege does not arise. On the other hand, the privilege does arise if the document is pressed for by the party seeking it on the basis not that it is a document obliged to be provided under s181E but is sought generally. In that respect, the applicant relied upon the judgment of Madgwick J in Smith and ors v Western Australia and ors (2000) 98 FCR 358 where at 361 his Honour said: The applicants do not contend that privilege exists over the site surveys and it is unclear from their submissions whether Dr Waite's solicitors do. However, the matter can be dealt with briefly. Dr Waite deposed that the site surveys were produced in accordance with the provisions of the Aboriginal Heritage Act to assist the Department of Aboriginal Sites of Western Australia to make assessments of Aboriginal heritage. The dominant purpose for the production of these reports, therefore, seems to have been to comply with the Aboriginal Heritage Act , and not to provide legal advice. For this reason privilege does not apply to the site surveys. 26 Mr Docking submitted that, in conformity with that approach: "The dominant purpose for the production of the advice might have been to comply with the P(olice) S(ervice) Act, and not to provide legal advice. For this reason privilege does not apply." 27 Having reviewed the advice, I consider it to be of a nature that entitles the Commissioner to claim privilege. 28 It is also desirable to mention the judgment of the High Court in The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission [2002] HCA49, given on 7 November 2002 and about which the parties have not, of course, addressed. The particular point in issue in Daniels was a claim for privilege in relation to documents, access to which was sought by the ACCC pursuant to s155 of the Trade Practices Act 1974 (Cth). That section, which authorises inspection of documents in certain circumstances is of no present relevance. I refer to the case merely to extract the general observations of the majority of the Court on legal professional privilege, as follows: It is now settled that legal professional privilege is a rule of substantive law ( Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J) which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation ((1999) 201 CLR 49 at 73 [61] per Gleeson CJ, Gaudron and Gummow JJ) in place of the "sole purpose" test which had been applied following the decision in Grant v Downs ((1976) 135 CLR 674). Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection (see, with respect to discovery and inspection, Mann v Carnell (1999) 201 CLR 1) and the giving of evidence in judicial proceedings (see Baker v Campbell (1983) 153 CLR 52 at 115-116 per Deane J; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 55 [4] per Gleeson CJ, Gaudron and Gummow JJ; Mann v Carnell (1999) 201 CLR 1 at 10-11 [19] per Gleeson CJ, Gaudron, Gummow and Callinan JJ). Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s155 of the Act provides. Thus, for example, it was held in Baker v Campbell , that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s10 of the Crimes Act 1914 (Cth) (see also Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). 29 The applicant's attack upon his removal from the Police Service was multi-faceted as follows: 1. The Commissioner's statutory decision-making process is marred by procedural unfairness. 2. Mr Miller is entitled to a finding of substantive unfairness because, on the merits, the Commissioner has not made out the charges in his s181D notice. 3. The delay in the decision to remove the applicant was harsh, unjust and unreasonable where he continued to work as a police officer in a most commendable fashion. 4. On any view of the circumstances, removal was far too severe a penalty. 5. Reinstatement without loss is the appropriate remedy. 30 In addition, reliance was placed on other principles of general application: 1. The application of Part 6 of Chapter 2 of the Industrial Relations Act in relation to unfair dismissals except where expressly excluded by the provisions of s181G(1) (See Little v Commissioner for Police (No 2) ibid at par.65). 2. Where sufficient doubt is raised as to whether the requirements of s181D have been met by the Commissioner, an evidentiary burden arises upon the Commissioner to demonstrate that those requirements have been adhered to (per the Full Bench in Oswald v New South Wales Police Service (No 2) (1999) 90 IR 42 at 64 in relation to s181B, the forerunner provision of s181D; applied in the current statutory context in Van Huistedde v Commissioner of Police (2000) 98 IR 57 at 107). It was submitted in this context that the failure of the Commissioner of Police to given evidence is of considerable importance and means nothing he could say would assist his case. Findings of Fact 31 Before dealing with the misconduct alleged against the applicant, it is convenient to deal with some of the surrounding features in which that subject will be in context. The applicant was particularly skilled in the matter of techniques designed to assist officers in their survival particularly in their contacts with violent or potentially violent offenders. His skill in this regard was well recognised and he performed the task over many years of providing one-on-one training with probationary constables and other officers when they thought necessary. The provision of this training was in conformity with requirements of the Police Service and was known to the applicant's senior officers. I find that the provision of this training was authorised and expected by the Police Service. 32 The provision of OS training involved express physical contact between the trainer and the trainee. It at least required the hands of both participants to come into contact with the arms and legs of each other and for frequent contact of a body to body kind. 33 There was no barrier to a male instructing a female in these techniques. Photographic material in one officer training manual shows, although in a different training context, male/female participation. 34 It was the applicant's custom, when addressing groups of new probationary constables, to offer his training services in this regard to both males and females. Generally, the undertaking of this training was voluntary. In the case of Constable Gorton it was arranged for her by other officers supervising her early progress in the Service due to their concern about her lack of skills in this area. The applicant was nominated by those persons as appropriate to provide the training. The Alleged Conduct 35 The conduct alleged against the applicant involved three female probationary constables. They were Constables Hay, Hughes and Gorton. The training involved for each of them was undertaken at the Campbelltown Police Station although in the case of Constable Gorton it also took place at her mother's home where she was then residing, and later at her own home. The Commissioner's statement of reasons recording "that on a number of occasions this training took place at their private residences" is to that extent incorrect. 36 I propose to deal with the allegations in relation to each participant in what I consider ascending order of seriousness. 37 Constable Hay was first interviewed about this matter on 24 August 2000 by Chief Inspector Waters. It was explained that the Inspector was making enquiries concerning an incident where Sergeant Miller had conducted himself inappropriately during some extra OS training at Campbelltown Police Station in about August 1999 with Constable Hay. She said she was having a cigarette with Sergeant Miller outside on a weekend afternoon when he asked how her OS skills were and said "Well seeing that it's a fairly easy afternoon we'll go up and take you through some of the survival techniques". He had told her he was the OS Instructor for Campbelltown. She returned to work and later he came back down and got her for the training. They walked into the upstairs muster room. She said she left the door open but he went and shut it. As to the training she said: "Initially it was just um OS skills, like wrist locks and um dragging techniques, trying to remember, I remember he had me on a chair at one stage and had my arm around up my back, um and told me to try and get out of that, um then I can't remember how I was supposed to get out of it, another time he had me on the ground and he was straddled across me, that's hard to explain but he was sort of knelt down with one leg on either side of me and told me to get out of that, which I did with a few kicks and stuff like that, um sort of um, he had me up against a wall another time with my hand behind my back, he showed me searching techniques on me". 38 It was explained as "Oh how to hold person while they're searching and stuff like that . . .". She was asked: Q42. Did he touch your body at all through the course of the searching techniques? A. Touched my back, but I don't recall that no, no just my back I think and underarms, nowhere else I don't recall him touching. Q43. Excuse me sorry, did he touch you in any of your private parts at all? A. No, ah not that I could say were deliberate . . . no he didn't touch me anywhere untoward, it was just the um the fact that I was alone, one on one and also the positions he had me in. Q44. What sort of positions were they? A. Like me lying on the floor and him over the top of me and telling me well if someone had you like this, how would you get out. Q45. Okay A. Up against a wall, my arm behind my back, him holding my arm behind my back, he showed me how to hold (inaudible), how he'd come behind me in a neck hold and stuff like that um, I, I really um, at the time I didn't think of it as sexual harassment as more of inappropriate, um I thinking to myself, shit I really shouldn't be here, we shouldn't be here alone um and, if he were to try anything I would have nowhere to go, he's a lot stronger than me, I ended up with bruises on my arms and he ended up with scratches on his. 39 She said that he had told her not to say anything and then gave this answer: He said, you're best not to tell anyone about this, some people think it's a bit, some people get a bit funny. 40 She was also asked about whether this was the only instance that she was given training to which she answered: Yeh, he offered a few times, but I didn't say yes again. 41 Later she indicated she had told a Constable Byrnes of the training. When asked when that was she said: A. About a week later, oh when I came downstairs all the boys, all the guys down there were having a big laugh about the fact I'd been up there with Dusty Miller and (inaudible) him, but I didn't say anything about it because all I thought it was, was inappropriate, I know I should have known better, because I'm not exactly a young person. 42 Later she said that she was in conversation with Constables Hughes and Gorton about 12 months after the training session when she said they were discussing their experiences with OS at Campbelltown and "we were all shocked that it happened . . . ". She later said: A. "I wasn't um, I wasn't on duty when it happened to them, but I don't know when it happened, it was just um, Janine and I were just happen to be talking about it and we were just amazed that, that we were the only persons he done it to, both silly, silly enough to fall for it, I don't know I haven't discussed it with them, I wasn't sure if it was appropriate to discuss what happened to them or not I know Janine was fairly upset, I haven't spoken to Constable Gorton." 43 She also expressed the view that she would have no concern working with Sergeant Miller in the future. 44 In the course of her oral evidence in the proceedings Constable Hay was cross-examined about her experience. She held the qualification of Diploma of Education and also a Diploma of Science which she acquired later through four years part-time study and had become a teacher teaching special needs. For the last 15 years or so she was a landscaper teaching landscaping to special needs adults. At the time of the training incident she was approximately 38 years of age (although in her oral evidence she expressed the view that she thought she was 41 at that stage). She attested to there being nothing in her police notebooks which would support her allegations against Mr Miller. 45 She agreed in cross-examination that Sergeant Miller never touched her private parts at all in any way that she would say was deliberate. She also agreed that she had never suggested to anybody that he had touched her deliberately and inappropriately on the breast or in the area of the crotch. 46 She was asked whether she had ever complained to the supervising officer on duty on the night of the training with Sergeant Miller to which she answered A. Didn't need to. Q. Why, because he saw you when you came down? A. Because he was laughing and telling me what had happened up there, when I came down. 47 In relation to her discussions of this event with other female officers she said: A. When we originally discussed it or discussed anything it was an informal chat with a few girls around, again no details given, no anything. Once the next reference to it was when it was proceeding to a complaint, the next reference I had, and then I thought it might not be appropriate to discuss it and I didn't want to discuss it, I didn't want it to go anywhere. Q. In terms of you not thinking it appropriate to discuss it, you knew it was just basic proper police practice for alleged victims not to discuss allegations amongst themselves? A. That's right. Q. You know it would be improper and inappropriate for the alleged victims to talk to each other about what the alleged offender did to them? A. That's right. Q. Is that what you did with Janine Hughes, talk to her about some of the detail? A. Never. I didn't even know what was alleged to have been done to her. I didn't know what was alleged to have been done to Christine. We discussed very informally OS training, no details. Q. I am limiting it to Constable Hughes. Can you tell the Commission in "I said" "she said" format as best as you can as to what was said in the conversation or conversations you did have please? A. No I can't, I can't. I don't know. It was an informal chat I thought would go nowhere. . . . . Q. You are saying at no stage did you ever give in any conversation any details to Constable Hughes? A. Hughes, no. Q. The same applies to Constable Gorton? A. No, never spoke to Christine. I didn't have a conversation with Constable Gorton. Q. In relation to your telephone conversation that happened after with Constable Hughes, again in the same way you gave an overview which really was "I said, she said", will you do that please? A. The overview was, Janine was concerned that the same situation could have occurred to someone else and she wanted to know what to do about it. My advice was to do nothing about it. 48 In re-examination when asked what she had meant in cross-examination with her answer "I know what I felt and I know what I feel" this evidence followed: Q. Can I firstly ask you what did you feel at the time of the session? A. I felt he was getting his rocks off and that's my honest opinion, but it wasn't going to go any further than rough and tumble. Q. Is that the view you still have as you sit in the witness box today or do you have a different view? A. No, it's the same, but equally I didn't - it was rough and tumble. I observe that no definition of the phrase "getting his rocks off" was sought from the witness. I did not understand it to mean more than that he was enjoying himself. The Macquarie Dictionary gives the definition of the phrase "get one's rocks off" as colloquially to mean to have an orgasm. I do not find that the evidence was intended to convey that definition. 49 Constable Hay described the nature of the training that Sergeant Miller was giving her this way: A. He was teaching me more realistic or unconventional methods of freeing myself. 50 Constable Hughes' allegations relate to three OS training sessions given to her by Sergeant Miller, the first of which occurred between April and May 1999 between 11pm and 2am on a 6pm to 6am nightshift when Sergeant Miller told her that he would give her OS training. He told her buddy on the truck that he was to do this. They went to a lecture room on the upper floor, the floor not being occupied at that time. They commenced by Sergeant Miller demonstrating searching techniques. She said: A.39 . . . he would um, pat my clothing down, um, and he lifted the underwire of my bra and said, 'You have to check here, this is where, this is where they put drugs'. Q.40 Can you tell me at that time, um, did you have your shirt on? A. Yes. Q.41 So he did he lift your underwire up, over the top of your clothing, like by touching you on the outside of your shirt? A. Yes, yes. Q.42 Okay? A. Um, then he would um, I can't remember the name of the technique, I think it was called the 'knife edge' technique they use for searching and um, he ran his hand over the crotch area and down my legs and um - Q.43 How did you feel when he did that? A. Very uncomfortable. Q.44 Alright, did you tell him you felt uncomfortable? A. I said to him, "Males aren't allowed to do this on females, we would usually get a you know a male person to come down or vise versa, you know a female to come down and search." He goes, "Yeah, you have to know just in case there's no other males working at night, there's only females working at night you have to know how it's done." Umm, and then he we'd move on and he would umm, then he'd tell me how to demonstrate how search on him, and like I'd just pat down his clothes and um at first I just ran my hands down his legs and he said, "No," and he said, "You have to use the knife edge technique" and he said, he told me about a story that he had when a criminal had hid a small knife in his crotch and he me that I had to you know run my hand through his crotch to make sure he wasn't hiding anything. Q.45 Did you do that on the outside of his clothing? A. Yes. Q.46 Did you have to touch any other part of him? A. No. Q.47 He didn't actually ask you to touch him anywhere else? A. No. Q.48 Okay, did you object to doing that? A. No. Q.49 Did you tell him that you didn't want to do it? A. I told him again, I said, "I won't have to do this." And he said, "You have to know how to do it." He told me that if, "I couldn't do it here with just him that I wouldn't be able to do it out in the street and that I shouldn't be in the job." ……. Q.53 Okay, so after you'd been up there for about an hour and you'd searched him and vice versa, what happened after that? A. Umm, then that was it, he went through other techniques like how to get someone on the floor, how to get an offender from a standing position onto the floor, and then once they were on the floor, how to search them on the floor which umm, included basically the same things but um, he would um - Q.54 When you say included basically the same things, just explain that to me? A. Okay, he would pat me down on the outside of my clothes and then he would - Q.55 How were you laying on the floor? A. Umm, I was laying on my stomach, and he would pat my clothes down from the outside and then he'd do the knife technique which was running down umm, the front of the chest and then he would pat my chest and like he - Q.56 Did he touch your breasts at all during this? A. He'd pat it, like he'd pat, like he didn't actually grab hold or anything, but he would pat it down. Q.57 And how did you feel while this was going on? A. Very, very uncomfortable. I wanted to - Q.58 Did you say anything to him on this occasion when you were doing the searching techniques on the floor? A. I said to him I said, "Look I better go, my partner will be looking for me." And then he replied he said, "Don't worry about that, I'm the Duty Officer, if he has a problem he can come and see me." Q.59 So after that, did you have to search him on the floor? A. Uh hum. Yes. Q60. And did that entail the same sort of thing as before with - ? A. Yes. 51 Constable Hughes said that the second occasion of training was 10 days to 2 weeks after the first incident, probably about the middle of April. It occurred in the same place "up in the top muster room" at probably about midnight. The evidence was: Q.75 Alright, tell me what happened then? A. Umm, I didn't actually, because I was in the station, I didn't have my appointments on so I didn't have my handcuffs with me. So you know were (sic) just pretending to use the handcuffs and he would at one stage he said to me, "I want to practice this as a real scenario, that pretend I'm a baddie, I just broke into your bedroom window." I said to him, "No, I don't want to do that," because like I was afraid that he would take it too far and we were on the floor um - Q.76 How did you get to be on the floor? A. Well, he told me to lay down on my stomach and then he said he was going to handcuff me - Q.77 Oh, okay - A. And umm - Q.78 Were you supposed to be co-operating with him or - ? A. Yeah, yeah and he'd grab one hand and he'd grab the other hand and he'd hold my hands behind my back and sat on me, he sat on my back. Q.79 What did you say, did you say anything? A. Yeah, 'cos I couldn't breathe, I said, "Can you get off, I can't breathe" and he laughed. Q.80 Okay, what happened then? A. Then we tried other techniques, one where I was kneeling, and oh sorry, when we were on the floor, sorry he was going through how to search someone, while they were on the floor while they were handcuffed and would, do the same, he would pat my clothes on the outside and then he turned me on one side so I was on my stomach but I was lying half sort of on my arm and he would again he would just use the same knife techniques and you know he'd pat me down and like he'd say things like to, "put my legs further apart" so he could search down my legs and he used the "knife edge" again to search the crotch. Q.81 So did he actually touch your vagina? A. Umm, when he would touch, use his hand to touch the crotch like he didn't grab it or anything like that, but - Q.82 On the outside of your clothing? A. Yeah. Q.83 And what did you say when he was doing that? A. Nothing. Q.84 Nothing. Okay, did he ask you to handcuff him, or pretend to handcuff him? A. Yep. I did the same to him, he was on the floor and umm, actually during this time a Senior Constable actually walked in, umm Tony Morris. 52 The third incident occurred roughly two weeks after the second. It occurred whilst Constable Hughes was on night shift again in the upstairs muster/lecture room. It only lasted possibly 20 minutes. She said: A102. Umm, we did batons and he was showing me the strike areas. And we also practiced umm, just Officer Safety things like umm, holds, different sorts of holds, umm bear hug holds where he would grab me from behind and I've have to you know try and get out of it. Umm, wrist locks, practised things like wrist locks. Q.103 Did he touch you anywhere that you felt was inappropriate on that occasion? A. No, we were just doing, just basic holds on that occasion. 53 Constable Hughes then spoke of a discussion she had with Constable Hay which happened to raise the matter of any dealings the latter may have had with Sergeant Miller. She said that Constable Hay told her what had happened. She said she then realised it was not just her and she spoke to her peer support officer. 54 Constables Hughes was asked about her discussion with Angela Hay and this discussion followed: Q.115 When you spoke to Angela Hay did she elaborate on what had happened to her to you? A. Yes. Yes. Q.116 What was her response to that? A. She said that he'd done the same to her but he'd got, he went away bleeding, that he had sat on top of her and that she had scratched him. 55 Constable Hughes also spoke in the interview of having telephoned Constable Gorton whose name had been mentioned to her by the peer support officer as someone about whom she was concerned. Constable Hughes then said: A121. I told her I said, the reason why I'm ringing, I said, you know I've got a problem (I can't remember the exact words I used), I said I've got a problem with Sgt Miller, I've told some people about his behaviour during when we did O.S. training, I said, I want to know if he'd done the same things to you. And she told me that she had just had a call from Inspector Waters and that she told Inspector Waters that she didn't have a problem. Umm and she told me that she'd lied to Inspector Waters, that um because she was scared you know she didn't know what to do. She told me that he had done - I told her happened to me. It was very hard for her to talk about it. She didn't want to go into detail. She said things had happened that she'd only told one person and that was her best friend and that she hasn't told anybody, she said she just wanted to forget about it. And I told her what happened to me, about the searching, about the you know touching and you know touch my crotch and pat my breast and she said he had done the same things to her. Q.122 Okay. A. And that she had told him she didn't want to do it anymore. Cos she said she took him on as a father figure and basically she didn't want to see him get into trouble. Q.123 So how would you say your relationship is with Sgt MILLER now Janine? A. Good, like he bent over backwards and went out of his way to help me especially, I had trouble with the University. And like he bent over backwards. I haven't since that time probably after the last incident the rosters for the Duty Officers have changed at Campbelltown and they weren't on the teams anymore. And so I never had to work with him since then and then I went to a different section for a couple of months, for five months. And I haven't had really anything to do with him. 56 In cross-examination Constable Hughes agreed that she had had a fair deal of life experience having worked for a magazine firm in the city and in the club industry. She said that when she started at Campbelltown Police Station she was introduced to Sergeant Miller as the person to talk to about street safety and OS survival methods. Later, Sergeant Miller spoke with Constable Hughes and another officer and told them that he was the OS instructor and if they needed any help to come and see him. She was asked whether she had any notes in her notebooks to support her allegations against Mr Miller; there was nothing there. Her evidence included the following: Q. You know that your allegations are ones of sexual assault in contravention of section 61M of the Crimes Act 1900 against Mr Miller don't you? A. Yes. Q. The reason there are no entries in your notebook is because the allegations which may constitute sexual assault never took place? A. That is not true. Q. You never made any contemporaneous record anywhere about that? A. No I didn't. Q. You could not have forgotten your basic police training that was required could you? A. No, it was a very different situation to what we are taught at the Academy. . . . . Q. Don't you know you have an obligation as a member of the Police Service to report to a senior officer if another officer had in effect engaged in a criminal offence or other misconduct? A. Possibly. Q. You knew that when you started at Campbelltown? A. Yes. Q. The reason you made no report contemporaneously or close in time to your allegations against Mr Miller is they never happened? A. That is not true. 57 Constable Hughes said that she had complained to Constables French and Kovacs. As to the latter she denied that she told Constable Kovacs the experience with Sergeant Miller was limited to one occasion. These complaints were made as much as 18 months after the training session. She could not be sure of the date of her complaint to Constable Kovacs but thought it was about November 1999. 58 As to the OS training itself, Constable Hughes' evidence was as follows: Q. Because in your record of interview do you remember you agreed you took up his offer and you told him you felt the OS at the Academy was very rushed? A. That's correct. Q. And that you took the view in effect any extra training would be helpful? A. That's correct. Q. You never changed from your view at that time that OS at the Academy was very rushed? A. Yes, it was. Q. That has always been your view about OS training? A. From the Academy, yes. Q. So, recognising at least your own experience of OS training at the Academy, you were particularly interested, weren't you, to improve your OS skills once you got to Campbelltown? A. Of course. Q. I think I am reading your interview correctly; putting aside the issue of male on female training, the actual techniques shown to you, as you allege, by Mr Miller, were those that you had become aware of from attending the Academy? A. Yes. Q. For example, let's deal with, say, the opposite sex search, somewhere in the area below the shoulders or arm pits down to just above the knees; that technique that was used, and it is the same sex, was what is called the knife edge technique? A. Yes. Q. That means using the edge of the hand? A. Yes. Q. And means, doesn't it, that you don't leave your hand there for many seconds but take it with quick action down the body? A. Yes. Q. You certainly when using that knife edge technique don't leave your hand, say, on the breast for many seconds, it is quick action around the area? A. Yeah. Q. That is what you allege Mr Miller performed on you, that technique? A. He was using the knife edge technique, yes. . . . Q. He used the knife edge technique in the way we just agreed was the way the Academy suggested? A. Well, not in certain areas, no; that is not right. Q. Where are you saying for the moment - I will come to testing your allegation - where did you say he did not use the knife edge technique in the way the Academy suggested? A. On one occasion he pulled - lifted my bra away and that wasn't shown to us at the Academy. Q. Is that the only exception? A. No, like I said then, at the Academy we are told we don't - males don't do the search of females and vice versa. Q. Are they the only two exceptions? A. No, on other occasions he has touched, like I said, with the knife edge technique like this (demonstrated) and on occasions he did actually touch my breasts. Q. Are they the only exceptions? A. No. On other occasions he has asked me to get on the floor, asked me to get on my stomach and he has done the searching technique touching my crotch area. 59 It was later elucidated that the Constable was asserting inappropriate touching of the breast on the first two occasions only. The third occasion did not involve any inappropriate touching of any kind. She confirmed that she had been enthusiastic about the OS training but after the first session she was not interested in taking further training. She adverted to her wish not to make a formal complaint at the time she first spoke to Constable Kovacs. 60 In the course of cross-examination Mr Docking put to Constable Hughes that basic police practice and procedure was to avoid contamination of the evidence of victims as a result of them talking to each other. She agreed with that. She disagreed that her speaking with Angela Hay and with Constable Gorton constituted such contaminating conduct. At the time she was speaking with Angela Hay she said that she did not know she was a victim at that time. The position was the same with Constable Gorton. She disagreed that she was given any details of the nature of the contact between Constable Gorton and Mr Miller. She was shown Ms Turner's diary and disputed the first four lines of the relevant entry would have been said by her to Ms Turner. This entry asserted that Ms Hughes had told Ms Turner that Sergeant Miller had touched her inappropriately on the breast and private parts area on each of three occasions of OS training. The diary note also recorded: More recently she spoke to AH (Angela Hay) and the subject was brought up and it was confirmed by AH that he did exactly the same to her . . . 61 Constable Hughes was cross-examined about the words "he did exactly the same to her". It was suggested that the only sensible reading of that was that Miller had done exactly the same to Constable Hay as done to Constable Hughes, namely, inappropriate touching of the breast and private parts area. Upon being asked to suggest another interpretation she said it could mean 'has touched or done something inappropriate'. 62 Ms Turner's diary note also included the following for 22 August 2000: 22/8 JH told me she had given a statement to T.C. E.R.I.S.P at M/F - also CG admitted to her that she is also a victim but that DM touched her the same but on the skin and asked her to touch his penis - has kissed CG and visited her home on three occasions. JH said that AH will give a statement. 63 Again she was pursued in cross-examination on this matter. She denied the word "penis" was used by her. She said "I don't think Christine would have mentioned that word to me". Her evidence continued: Q. Are you denying, now that you have seen the notes, that you told Turner that as a result of your telephone conversation with Gorton something like "on the skin"? A. That she had been touched the same, or things had been done the same, yes, but that's not great detail. Q. You have confused me. What your present evidence is you are saying that you now accept that you did say to Turner something like, "Gorton had said Miller had touched her the same", that's on the skin? A. Yes, that's right. That is not detail. Q. You are just making this up as you go along? A. No. Q. As you are trapped with this note, aren't you? A. No, it's not true. Q. Are you denying that you also told Turner in this conversation after your previous conversation with Gorton that Gorton alleged Miller asked her, being Gorton, to touch him on the penis? A. It didn't say that. Q. Look at the entry for 22 August? A. Yes. Q. And look a little bit to the centre to the right, what appears on the third line? A. Yes, I don't recall saying that. Q. Do you deny that? A. I don't recall that Christine would have put that to me. Q. Is it your evidence that that might have been said, now that you have been confronted with the notes? A. No, I am not denying that I had a conversation with Christine. I had a conversation with Christine but she's not going into detail as to what happened with her but she told me that she was a victim. Q. I will try and get you to answer the question again. Now that you have been confronted with the notes, are you denying the conversation with Turner included you saying words like, "Miller asked Gorton to touch his penis"? A. I don't recall that, no, I had that conversation with Loraine, that I said those words. Q. Your evidence is that it might have been said but you have forgotten? A. No, she might have interpreted something that I said, but I don't recall saying that word. Q. So you are denying that you said anything like that? A. I don't recall it. Q. Just answer, would you please? A. I am not denying that that happened, but I don't recall that I have said that. Lorraine may have interpreted something else that I said, but I don't recall saying that. 64 She agreed also that while she was not sure how many times Sergeant Miller had visited Christine Gorton's home she was aware that he had visited the home and that Constable Gorton had said that he had kissed her. 65 In cross-examination she denied that she had not mentioned to Snr Constable French, the first person to whom she complained, any touching of the breast because it did not occur. She referred to her relative newness, only a couple of months into the job, and the embarrassment which she felt. 66 Constable Hughes was taken through her practicum training reports where in December 1999 she had recorded "I feel that my peers here at Campbelltown make it easier for me to discuss matters and reflect" as indicating that her alleged lack of confidence was "make believe". She denied that and asserted that: "When I made these comments they were references to something totally different from as to what happened to me. We are talking about things about the job, about going out to the general duty type of work, not talking about the sexual harassment that happened to me." 67 She was asked about her communication with Sergeant Miller in the light of her evidence that up until August 2000 she had felt sick every time she had looked at him. She said "He was my mentor, so we had to liaise with each other quite often to meet the criteria for my assessments". 68 As to the possibility of inadvertent physical contact between the training officer and the trainee, the evidence was: DOCKING: Baton training. It is going to be inevitable that there is inadvertent contact between the female person's breast area and the male officer? A. Yeah, with batons, yes. Q. The same applies to handcuffing techniques, doesn't it? A. It depends on how close, not with the type of contact that happened to me is not, I wouldn't imagine would come into contact anywhere. Q. But you are making that up, aren't you? A. No I am not. Q. That there was the sort of contact you allege by Mr Miller, that you say was sexual assault? A. I'm not making it up, no. That is what happened. Q. In terms of defence to choke holds, there is necessarily close physical contact between a male officer and another female from time to time, isn't there? A. Yes. Q. Touching of the breast and even possibly in the crotch area is likely? A. Well yeah, it can be likely, but not in the area, not in the way that it was done to me. Q. In terms of wrist lock techniques, again you are struggling, trying to role play a position out in the streets, it is inevitable there will be contact in the private areas in those sorts of struggles? A. Accidents maybe in brushing, but what happened to me, to me they were not accidents and they were not just the occasional brushing. Q. Which version is true, when you told Kovacs that it was touching once in the private area of the breast, the version you told Turner that it was brushing in the private area of the breasts on three occasions, or the version which you gave to the police in your interview, that it was such touching only on two occasions, which of those versions is true? A. I know what happened and what happened is, the way that I told in my ERISP interview, the way the other people interpreted what I say, I can't say the way they think of what - they can make up stories of what they think I said, but I know what happened and what happened is the way that I said in my interview. Q. So you are saying the two other versions related by Kovacs and Turner are false? A. I didn't say they were false. I said they may have misinterpreted what I have said. 69 Constable Christine Gorton was interviewed on 23 August 2000 by Detective Senior Constable Connolly and the record of interview was placed in evidence, being part of the material relied upon by the Commissioner. At the time of the interview, the Constable was 29 years of age. She was attested as a member of the Police Force on 22 December 1998 and commenced at Campbelltown Police Station on general duties. She said that a police officer who was the support person for the university students, together with another person from the university, had interviewed her and, in relation to problems she was having at work, arranged that she would have OS lessons with Sergeant Miller. The interview occurred in July 1999 and the lessons started fairly soon after that. 70 On the first occasion the Constable attended in her own time under a pre-arrangement. She was taught searching techniques from a prone position and also against a wall. There was some uncertainty in Constable Gorton as to whether certain events and conversation occurred on the first or second occasion of training. For example, she said that she expressed to Sergeant Miller that she was not comfortable doing the searching techniques with him, that she was unsure whether that was the first or second time. 71 The allegations made in this interview by Constable Gorton involve three training sessions at Campbelltown Police Station, approximately three occasions at her mother's house where she was then living and three or four visits to a house Constable Gorton purchased at the end of 1999. The final training session was in approximately April 2000. 72 The allegations involved searching techniques, including searching inside the applicant's trousers for a knife which was hidden inside his underpants. Constable Gorton would put her hand down inside his pants. He would put his hands inside her tracksuit pants. This involved using the heel of the hand like a blade to go between the person's legs. This was similar to what was taught at the Academy and did not cause such discomfort to Constable Gorton. On the third occasion at the Station the session was provoked by the applicant informing Constable Gorton that her practicum supervisor wanted to know how she was going and he said "If you go alright with that then everything will be, you know I can tell her you've gone okay". 73 As to the searching techniques, she could not remember if it was the third occasion at the station or when he started coming to her mother's house that he started to teach drug searching. She thought it was the third occasion. She said "And that was when he actually wanted me to be more personal in my searching particularly in the genital area . . . And I didn't want to do it ... because when I go to search him, I kept pulling away". Her statement ran: A133. I'd pull my hands away and he'd say "no this is how you do it" and then he got my finger and he said, I don't want to say the word but Q.134. That's alright. A. He said "when I was searching his front area, I had to get his finger like that Q.135. Mm A. He had my finger and he said "you go down like that and then down like that" Q136. Alright referring to his penis? A. Yeah Q137. Alright and he wanted you to touch his penis and search it? A. Yeah Q138. In that manner? A. Yeah Q139. Alright and what did you say? A. And the rest as well. 74 Later the interview recorded: Q.145 Did he have his clothes on, pants on or? A. Yes Q.146 He did? A. Yes Q.147 So how did he want you to do that, by undoing his pants? A. He actually, I think he yeah he would have done it, he undid his pants to make his clothing looser because I said to him "oh I can't get my hands down in your pants they're too tight." Q.148 Oh OK so did he, when he searched you in the same manner, did he touch you anywhere? A. Yes. Q.149 Alright can you tell me about that? A. He actually put his hand inside my bra and touched me and took my bra off inside my shirt. ….. Q.156 Was he aware that when he was doing that you weren't happy, or you were uncomfortable? A. Well I was uncomfortable but he, I felt that I had to do it basically to satisfy everybody else. Q.157 Alright. A. Cause basically Kylie McLeod and Lennell had said you know you have to do this or you won't have a job. Q.158 Alright, but did you think that by um him acting in that manner that that was proper behaviour? A. Well I guess, well yes I knew because he had said you know I'm not supposed to be doing this, but I'm doing it for your own good and that's (sic) he had me believing that. 75 Speaking of the third occasion the interview ran: Q.167 Did he touch you anywhere else on that occasion that was inappropriate? A. Um inside my pants. Q.168 Now explain to me how he did that? A. Ah he would, first he would go down the back and put his hand between his legs and then bring his hand back like that between my legs like coming to each side. Q.169 Um touching you on your skin? A. Yes. Q.170 With his hand inside your underpants? A. Yes and then he would come through the front and do it that way as well. Q.171 And did you say anything to him when this was going on? A. I can't probably not but I know he said "you know I know this is embarrassing for you" it used to come up. Q.172 Mm A. You know I know it's embarrassing um. Q.173 And how many times has he done that? A. Each, each time we had a lesson. Q.174 On the three occasions that you've had a lesson? A. No on the, I think it began on the third time. 76 As to the alleged kissing incident she said: A257. …I forget what time it was I completely forgot he kissed me one time, he came up and he said what would you do if I did this, and he just came up and he just kissed me on the lips, and his mouth was just a little bit open, and um I just retaliated and he said oh that's really good, um and that's the only time that he ever did that, and it was probably after that, that I did come, become a little bit concerned because, I was more concerned because it wasn't like he was somebody that I loved or was in a relationship with. Q.258 Hm A. I had looked at him before that almost as, as a father figure because I lost my father when I was really young and it was like a father's companionship more than anything was how I saw it, I don't know how he saw it, but as it went on I realised that it was wrong. Q.259 Ok. A. And I realised that or, or I thought that he was getting thrills from it. Q.260 What gave you that opinion? A. Well the way he would want me to stroke him and Q.261 When you say stroke him you mean his private parts? A. Yeah, yeah and I mean he always got an erection, usually, yeah. 77 During the course of the interview when asked whether there was anything else she wanted to say, Constable Gorton said: A275 No, its just that I feel really stupid that I let it go on for as long as I did. …. A276 Because I knew it was inappropriate. …. A277 Just that I should not have let it go on as long as it did, I just feel really silly. 78 During the course of his interview Sergeant Miller broadly agreed with the number of occasions each of the complainants had trained with him. As to his attendance at Ms Gorton's homes he made the point that it was at her invitation that this would be done. He understood that she was on the verge of being terminated from the Police Service when the provision of OS training was required. However, the training he gave her was not so limited; it included a number of other aspects of police work in which she was deficient. He spoke of the meeting with the supervisors of Ms Gorton which gave rise to this training. He said: At that meeting I was informed that Constable Gorton was going to, her employment was going to be terminated unless her performance improved dramatically. I was informed that she was very introverted and her performance as a Constable was sadly lacking. She basically had no idea on the basics of policing and she was very withdrawn. I was then requested, and at my agreeance, to take her onto my team to assist her with completing her training. I had a long conversation with her and I found she was in fact very withdrawn, there was no aggression in her at all, and whilst speaking with her I formulated a training plan which included the officer survival training as well as learning police practices and procedures. 79 He said at the first training session he explained that she had received approximately 40 minutes training on her OS skills. He said: I asked her to put a wristlock on me so I could test her competency in that and she stood there and burst into tears and said, I don't know how to do it. Her level of competency was, could be best described as being miserable. 80 He said the training was in putting on wrist locks, breaking free of choke holds and baton training. They discussed searching techniques and these were demonstrated at a number of the lessons. He described the knife blade search for checking for the secretion of any weapons in the groin area. That would not be appropriate in the area of the breasts. The search by a male officer of a female person should be limited from the shoulder to the finger tips, her back to her waist and then from a fraction above the knee down to the ankles. That would probably be done in the standing position if they were not fighting and were being cooperative. 81 On being asked whether he said anything to Constable Gorton along the lines "I am not supposed to be doing this, but they don't teach you anything at the Academy and you know its for your safety . . .", he said this would have been a reference to the defence to choke holds which had been taken off the training curriculum due to the number of injuries that had been incurred. He said that: "I explained to Constable Gorton that I would in fact teach her that, due to her small stature, and I believed a real need to be able to protect herself in public, and I explained to her that the actual lessons involving defence choke holds had been taken off the curriculum . . . it would also assist her in becoming more aggressive and not as withdrawn". 82 He denied in a most emphatic way that anything untoward had happened in his training of Constables Gorton and Hughes. He was not subjected to any sexual allegation at that time by Constable Hay. He expressed concern that these allegations were being made against him. He had trained hundreds of male and female officers without any complaint ever being made. He was a Christian with very strong beliefs and touching a woman in the fashion alleged would be contrary to those beliefs as well as police instructions. He was unable to explain why these allegations would be made against him. Conclusions 83 It is necessary to deal at some length with the concept of searching offenders, particularly for hidden weapons. Constable Gorton took the position in cross-examination that at Campbelltown female officers never searched a male offender, even where two females were in a vehicle together. They would call another truck and wait until a male officer could come to search the offender, restraining him in the meantime. In the course of an answer concerning her OS training by the applicant she testified that she had said to him: "I am not allowed to search males," and he said, "Bullshit." He said, "It's your life on the line. You can search anybody you want". 84 The Weapons Trainers Basic Manual published by the New South Wales Police Academy, Weapons Training Unit, deals with searching techniques along with other weapons practice. After the introduction, the manual provides a section entitled "The Ten Fatal Errors". The fourth such error is dealt with under the heading "Poor or No Search" as follows: 4. Poor or No Search: Your own life and that of your partner may depend on the type of search you carry out. There can be no excuse for an improper search. In these modern times, offenders conceal all types of weapons and instruments upon their person. When it is your responsibility to search an offender, ensure that it is thorough. In all searches, the existing circumstances must be considered. 85 The manual provides a section on searching. It suggests: "One of the greatest dangers that Police face, is the possibility that persons that they come into contact with may be concealing some type of weapon upon their person". As to the method of searching, the manual provides: In this case, you have a definite starting and finishing point. You commence the search with the offender's head and hair and complete it at the offender's feet. We adopt a 'crush' method of searching as against a 'pat' type method which does not always indicate the presence of an object (flat objects are not noticed when patted). Pass your hands through the offender's hair, crush their hair in your hands to establish the presence of any objects. Then move to their collar. It is very common for razor blades and other objects to be secured beneath an offenders collar. When you reach the offender's back, mould your hand into a knife edge shape and then quarter the offender's body. The knife edge allows you to feel more clearly, the varying highs and lows on the offenders back and will more readily allow you to feel any object. When the back has been done check the offender's front chest area, but perform this action from the rear. Again use a knife edge and especially feel around the sternum and rib cage area where there are a number of uneven points in which objects can be concealed. From here move to the belt area, again being especially careful since offenders have hidden knives, razor blades, saws and other objects inside their belt. Move from here to the groin and backside of the offender. It is here, probably more than anywhere that offenders try to hide objects. The reason for this is simple. Police, like most other people, have a reluctance to placing their hands upon another's groin or backside, especially when that other person is a member of the same sex. Knowing this, they hide objects there in the hope that the searching Police will not be that thorough. You can carry out a simple search of this area without embarrassing yourself, or the offender. In the case of the groin, use the knife edge of your hand to cover that area by running your hand down each side, where the legs join the offenders torso and then across the top of this area. You have drawn a triangle so to speak with your hand movements. For the offenders rear, pass the knife edge between the offender buttocks, once again feeling for any objects. From here, use the crush method as you continue your search downwards towards the offender's feet. Your search should include the offender's shoes and the arch of their feet. Be Thorough, Remember Your Ten Fatal Errors. Throughout the process, keep your position in mind to avoid sudden attacks and continue to communicate your actions. Where the search is to be conducted and you require a greater degree of control, you have available the following series of options. The offender can be placed against a wall, a Police car or other vehicle, and can even be instructed to lay on the ground. When placed against a wall, have the offender put his chest against the wall as this prevents any sudden movement backwards. The prisoner should have his legs sufficiently spreadeagled so that the searching officer can cause him to drop to the ground simply by sweeping one leg out from under him. The officer should keep the arm which is not searching firmly against the offender's back in an effort to ensure that the offender maintains his state of imbalance. Where the offender is upon the ground, the search is still conducted systematically. In both cases (against the wall and on the ground), you may feel it necessary to handcuff the offender prior to your search. This being the case, search the immediate area where his hands will be located after being handcuffed, and when found clear, handcuff the offender. For instance, where the offender is on the ground, place your knee upon the offender's shoulder and back to maintain control, then search the small of his back and then, bring the offender's arms to the rear, one at a time to be handcuffed. The important point about searching is that it must be systematic, and control of the offender must be constantly in the officer's mind. Remember to use the crush method and not just pat the offender's clothing. Remind yourself of the number of Police that have been hurt through incorrect, or non-existent search. 86 It is notable that nowhere in the manual is reference made to males not searching females or vice versa. Elsewhere in the manual, in the context of different subjects, photographs are given to aid the instructions. Some photographs depict a male police officer with a male offender; other photographs depict a female police officer with a male offender. There seems to be room for doubt in that document about whether females should search males or males, females. However, a Policing Issues and Practice Journal published by the NSW Police Service seems more consistent with the observations made by the probationary constables to the effect that they are not supposed to search male prisoners and males should not search females. In the course of explaining search techniques, this section occurs in the journal: Who Searches Who? The policy in relation to the searching of prisoners is: · Male officers to search male prisoners. · Female officers to search female prisoners. 87 In the course of his interview by Inspector Waters, after being asked for any comment he might wish to make in relation to Constables Hughes' allegations, the applicant said: A.193 . . . I always explain to police officers the, its inappropriate for a male to search a female, and I would have said, no doubt I would have said to her that for a more intimate search, as you've described, that a female officer would conduct it most certainly not a male officer". 88 While it is difficult to conceive that circumstances would always permit female police officers to await the attendance of a male officer to conduct a search upon a male suspect or offender, the policy is clear. It seems equally clear that the applicant's statements to Constable Gorton, if she is accepted in that regard, and Chief Inspector Waters do not sit comfortably together. 89 I found each of the three female constables to have been impressive witnesses. They each exhibited, in their own individual ways, a strength of character which I found commendable. Constable Hay, as I have said, was a witness who tended to see as less significant the events about which she gave evidence. She had always thought the matter ought not go further and she exhibited to me a feeling of reluctance in having to give evidence at all. Nevertheless, she stuck, as it were, to her guns with respect to the conduct of the applicant. 90 Constable Hughes, I am convinced, was not making her evidence up as it was suggested to her in cross-examination. There was a consistency in her adherence to the gist of her evidence. Constable Gorton appeared as a less confident witness than the other two constables. Her lack of confidence was a feature which led to the OS training which was undertaken by her with Sergeant Miller. However, when pressed in cross-examination about matters contested by the applicant, she showed strong adherence to the details of her allegations and a strong resistance to any countervailing proposition. She impressed me as having considerably more inner strength than appears to have been the case in 1999. 91 I have taken into consideration the submission made for the applicant that the complaints made against him were made so late that the Commissioner of Police should have regarded the allegations contained therein as false. This approach cannot be accepted. It is not necessary that complaint evidence be fresh to be believed. The relevance of delay in making complaints in sexual cases has been the subject of detailed consideration by the High Court in Crofts v The Queen (1996) 186 CLR 427 at 446-452 and more recently by Spigelman CJ (Sully and Ireland JJ agreeing) in R v Johnston (1998) 45 NSWLR 362 at 367-375. Those cases involved directions to juries in sexual assault matters where complaint had been delayed. The overall position taken is that the delay in making a complaint of this kind will have two potential effects, one upon the credibility of the complainant and the other introducing difficulties for the accused in testing the evidence of the prosecution or adducing evidence in defence, which difficulties should be highlighted to the jury. Accordingly, in the present matter it is necessary to take into account that the delay in making complaints is a matter relevant to an assessment of the credibility of the complainants. In Crofts Toohey, Gaudron, Gummow and Kirby JJ said (at 448): There might be "many reasons" to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining". 92 I have had the benefit of oral evidence from each of the complainants and their evidence as to delay. I consider the delay in making the complaints here is explicable on a variety of bases including embarrassment, naivety, fear of retribution and in one case a simple desire to put the matter behind and to move forward. I do not consider the delay involved in this case should cause me to reject the evidence of the complainants. 93 While the concept of contamination of evidence through discussions between the three female constables was a significant attack made upon their evidence in the applicant's case, I am satisfied that the evidence has not been affected to any degree by those discussions. The concept of contamination of evidence is really a matter which is to be considered as affecting potentially the credit of a witness and the credibility of the evidence. The substance of those discussions related not to the details of the conduct but whether there had been behaviour which should be reported. I find that the discussions between these three witnesses were limited in content and did not have, in the context of their individual complaints, any effect which would create any risk in accepting their evidence as evidence of truth. The nature of the complaints made by each police officer differ significantly from the other two. There never was any 'sameness' in the details of their experiences. The reference by Constable Hughes to the applicant having done "the same" as between her and Hay was, as she adequately explained in cross-examination, a reference to the utilising of the training sessions for an inappropriate purpose. 94 Similarly, in the evidence of Constable Hughes, I do not consider that the veracity of her allegations is affected by the alternative views advanced by Senior Constable Morris in the context of her apparent happiness after the first OS training session with Sergeant Miller and the diary notes made by Senior Constable Kovacs which reported contact with the breast on three occasions, which Constable Hughes denied. Each of these matters is explicable on the basis advanced by Constables Hughes herself. In the case of Senior Constable Morris' report of the event occurring more than one year before, it is as likely as not that her relative inexperience and immaturity could have caused her to not wish to exhibit the concerns she felt. In the case of Senior Constable Kovacs' diary notes, the compression of any narration of the facts surrounding three different events into four or five lines in a diary note is obviously capable of misinterpretation or misrecording of the facts orally conveyed. 95 While the technique employed in the interviews of the three complainants may have at times been wanting because of the use of leading questions, I do not consider that has had any effect upon the evidence gained thereby. 96 I have had regard to the high quality references and oral evidence given in support of the applicant. The material ranges from friends of long-standing, who have found him to be exemplary in conduct and philosophy, to senior ranking and retired police officers who find it impossible to accept the allegations made against him. While material of this kind may sometimes redound so much to credit as to cause one to prefer the evidence of the beneficiary over others, in this case I find myself unable to so treat it. However, I consider it of relevance to my consideration of the suitability of the applicant for reinstatement to which I shall return. 97 The evidence of the three complainant police officers I find overall believable and overwhelming of the applicant's evidentiary position. I therefore accept, over the applicant's denials, that the principal allegations have been established on the balance of probabilities. That finding supports sufficiently the related reasons proffered by the Commissioner in his Statement of Reasons; any defects therein, such as the reference to 'their private residences' or the reliance on a concession of 'inadvertent touching' fall away with the rejection of the applicant's evidence on the substance of the matter. That does not complete the present process. There remains the issue of whether, in light of that finding, it is appropriate that the applicant should succeed in his application for reinstatement. That involves a consideration of whether the removal of the applicant was harsh, unreasonable or unjust (s181E(1) ). 98 In considering that question, it is necessary to review comparatively the conduct of the applicant towards the three police officers. While those events may be seen as part of what seems to have been a course of conduct, the actual events differed markedly from one to another. The conduct involving Constable Hay was very limited and, in isolation, would warrant small criticism, if any. It takes on an unsavoury character only by its juxtaposition to the more or less contemporaneous events concerning the others. It takes little imagination to think that needing to escape from a male sitting astride oneself might well be a situation an officer could face, if not frequently. This act alone might warrant corrective action but would not justify, in my mind, serious disciplinary action. 99 The events involving Constable Hughes are of a wholly different character. I cannot see them as in any way appropriate; I consider they justify an appropriate form of disciplinary action against the applicant. 100 The conduct with Constable Gorton I have found particularly perplexing. There is no doubt that the applicant was in a position of power and influence over a new probationary constable whose career was in serious jeopardy unless he gave approval of her in the light of the OS training. There is equally no doubt that the contact in the training was reprehensible, if it was truly non-consensual. While I generally accept the evidence of Constable Gorton, there is one aspect of her evidence which troubles me greatly and which was not touched upon in any detailed way in the evidence, no doubt for the reason the applicant's case was in denial of these events. I am quite unable to understand why, if the experience in the three training sessions at the police station was abhorrent to Constable Gorton, she suggested they should continue, first at her mother's home where she was then living, and later at her own home where isolation was assured. Allied to that is the fact that the applicant was welcome at Ms Gorton's home after he had completed the OS training programme with her. Her evidence in that regard was: Q. There were how many sessions at your own house, this is once you had moved? A. There was one actual OS lesson, but he came to my house on other occasions when we just talked. Q. You are not making any complaint about when he attended your house to talk, are you? A. No, I have never made a complaint about that. Q. Because he was welcome at your house when you moved, wasn't he? A. Well, the days after that - one of them he turned up, I think, it was unexpected, it wasn't prearranged. Q. But he could not get in unless you permitted him to come in? A. No. Q. You have agreed? A. Yes. Q. And the same applied to your mother's house? A. That's right. . . . . He would call in to see her sometimes, yes. 101 This concern seems to me to be a matter proper to bring to the consideration of whether termination is appropriate in all of the circumstances of the case. 102 Some other features of the case are also significant. One is that I consider, as earlier noted, the applicant to have been a police officer possessing very considerable abilities and skills. However one may characterise the behaviour of the applicant during the OS training the subject of this case, it is open to the Commissioner to ensure that it is not able to occur again if the applicant were returned to the Service. Whether the applicant's OS skills were to be utilised in a training context, or under what conditions, is a matter that could be addressed by the Police Service. 103 A further feature to which I give weight is the views of the three female police constables as to remediation in this matter. Constable Hay was of the view that no action should be taken; Constable Hughes was concerned to ensure that this could not occur with other trainees and Constable Gorton initially took the view that she wished to take the matter no further and to do nothing about it but later felt that the matter, having been raised, should be dealt with managerially. 104 Another relevant aspect concerns the delay involved in the removal of the applicant. The three police officers were first interviewed about the matter of the OS training in August 2000. The applicant was not served with a s181D notice until 22 August 2001 and was removed from the service on 12 November 2001. In the meantime he had been moved to another police station and performed the duties assigned to him without difficulty. That experience is consistent with the testimonial evidence brought in the applicant's favour. 105 Finally, I turn to the matter of procedural fairness. There seems never to have been any doubt that the concepts of procedural unfairness are relevant to a consideration of an application for reinstatement in employment whether under the Industrial Relations Act 1996 or the PS Act and its predecessor provisions which incorporate certain of the unfair dismissal provisions of the Industrial Relations Act. A number of the cases in a long line of authority to that effect were discussed by the Full Bench of the Commission in Court Session in Little v Commissioner of Police (No 2) (ibid). As I understand that line of authority, no case provides that any failure to afford procedural fairness will result in a finding that a dismissal is harsh, unjust or unreasonable and that reinstatement must follow. 106 In Mason v Electricity Commission of NSW (1995) 62 IR 436 Hill J at 441-442 dealt with the issue this way: "An issue which sometimes arises in a case concerning a denial of natural justice or procedural fairness by an employer in deciding to dismiss or otherwise discipline an employee is whether the denial vitiates or avoids the dismissal or disciplinary action. In my opinion it generally does not unless the failure constitutes a breach of an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss. Such a limitation may, in certain cases, be imported by legislative prescription or other applicable rule or regulation or otherwise arise out of the nature and terms of the relationship and the office or position held. 107 This view was agreed with by a Full Bench of the Commission in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 389 as follows: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 108 Other cases in which this issue is dealt with, some of which were referred to in Antonakopoulos are: · McCabe v NSW Police Service (unreported, Cahill J, Vice President, Hill J and Connor C, Matter No IRC3112 of 1994, 3 July 1996). · Bigg v NSW Police Service (1998) 80 IR 434 · Newton v Commissioner of Police (1998) 85 IR 119 at 133-134. · Newton v Commissioner of Police (No 2) (1999) 87 IR 66 at 76 · Van Huistedde v Commissioner of Police (2000) 98 IR 57 · Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333, 14 December 2001. · Little v Commissioner of Police (No 2) [2002] NSWIRComm 52, 29 April 2002. 109 In Newton v NSW Police Service (No 2) the Full Bench was dealing with a submission on behalf of the appellant police officer that the reasons of dismissal provided by the Commissioner of Police were so deficient that they rendered the decision to dismiss harsh, unreasonable or unjust and that such a point should be determined on a preliminary basis. In rejecting that point, taken on appeal, the Full Bench said: The difficulty with it may be illustrated by reference to circumstances frequently encountered by the Commission when hearing applications brought under s84 of the Industrial Relations Act . The adequacy of procedures followed by an employer in dismissing an employee is but one question which may arise in such proceedings. For example, in Burke v McGirr (1995) 86 IR 54 it was said (at 55-56): "Counsel for the respondent on appeal relied upon an absence of 'procedural fairness', in the events leading to dismissal. This is a concept which seems commonly to be put forward as an argument in dismissal cases. We are of the view, however, that such a concept has not become accepted in this Commission as a ground of reinstatement, separate from the statutory concepts of harsh, unreasonable or unjust dismissal. The legislation provides relevantly: . . . We are of the view that the discretionary basis for reinstatement resides in the terms of the statute and that the statutory instruction can not be made to give way to imprecise general concepts such as 'procedural fairness'. A consideration of the procedures followed in implementing a dismissal may be relevant in a particular case. Nevertheless, all the relevant circumstances must be considered by the Commission in determining whether a dismissal was harsh, unreasonable or unjust, not merely such procedures alone." 110 The Full Bench then referred to the views expressed by the High Court in Byrne v Australian Airlines Limited (1995) 185 CLR 410; 61 IR 32 (applied by the Commission in, for example, Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at 467-469) as follows: The approach adopted by the Commission is no different to the approach taken by the High Court in Byrne in relation to the provisions of an award which provided that dismissal was not to be harsh, unjust or unreasonable. McHugh and Gummow JJ considered the relationship between matters of procedure and merit by observing (at 465-466; 72-73): "The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation ( Maxwell v Murphy (1957) 96 CLR 261 at 285-287; McKain v RW Miller & CO (SA) Pty Ltd (1991) 174 CLR 1 at 19-20, 40, 48-50). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second." 111 It seems to me to follow from this line of authority that (other than in the examples of serious failures referred to by Hill J in Mason v Electricity Commission, none of which have been demonstrated in the present matter) the notion of ensuring that an applicant has been afforded procedural fairness is underpinned by the need to ensure, for present purposes, that all relevant material has been taken into account by the Commissioner of Police. There is an assumption involved in the principle that a failure to pay regard to relevant material may have visited the consequences of an unfairness upon the applicant in the sense that reference to the material would have caused a different decision. In other words, the decision made would be vitiated not merely because of a failure to afford a fair process but because the decision arrived at was wrong. If the decision to terminate a relationship is not demonstrably wrong, in the light of the material able to be produced in the review process before this Commission, then a recourse to procedural fairness to establish that the dismissal was harsh, unreasonable or unjust can only be a triumph of form over substance. 112 The judgment of Boland J in Burrows v Commissioner of Police; Giardini v Commissioner of Police (ibid) is a convenient reference point for present purposes. The argument advanced in the present matter seems to have followed a not dissimilar line to that put to Boland J. However, an examination of the underlying material had a particular affect before his Honour which contrasts markedly with that here. His Honour said at para.183: 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. 113 That paragraph portrays the way in which a failure to have regard to particular material in possession may visit a direct unfairness. 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. 114 In considering whether the removal of the applicant was harsh, unjust or unreasonable, it is instructive to pay regard to what was said by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (ibid at 465): It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 115 This is a case I have found not easy to resolve. I consider the public interest requires the applicant's behaviour be viewed as deserving of heavy censure and penalty. While I in no way condone the applicant's actions, and I regard the three police officers as deserving of my commendation for their strength and courage in making and adhering to their complaints in the face of their fears of career damage, I have come to the conclusion that the applicant should be reinstated in the Police Service. Allowing for the view that the applicant must bear an appropriate penalty and taking into account all of the circumstances of the case, including 26 years of otherwise exemplary service, I consider the termination to have been harsh, both in terms of its consequences for the applicant and the proportionality of the penalty having regard to the misconduct concerned. I find in the light of the evidence that the Commissioner's decision was not unreasonable or unjust. 116 I have considered whether reinstatement in this case would be impracticable, but I have concluded that it would not, having regard to the following elements: (a) the fact that the applicant was able to work successfully for approximately 12 months after the allegations were first raised against him; (b) it is within the control of the Commissioner of Police to ensure that the applicant not be utilised in OS training on a one-on-one basis; and also that he have no or limited contact with the three complainants; and (c) the applicant evidenced a real enthusiasm to return to the Police Service. 117 I am also satisfied that these same features mean that the public interest will not be affected negatively by an order of reinstatement; indeed the retention of the applicant in the Service on a managed basis would seem to me to produce a benefit to the public interest. 118 I order that applicant be reinstated in his former position in the Police Service on and from 18 November 2002, on terms not less favourable than those that would have been applicable if the applicant had not been dismissed. I order that his service be taken not to have been broken by the removal (s89(4) of the Industrial Relations Act, 1996). I refrain from making an order that he should receive pay for the period between 12 November 2001 and 18 November 2002, thereby imposing, so far as his employment in the Police Service is concerned, a penalty of the order of 12 months' salary, which seems to me to meet the needs of the matter. 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.