Industrial Relations Commission of New South Wales CITATION : Starr v Commissioner of Police [2001] NSWIRComm 226 APPLICANT: Andrew Starr PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC 5614 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Removal of police officer - review of order - whether removal was harsh, unreasonable or unjust - allegation of misconduct and criminal offences - Commissioner alleged applicant shot himself and made false report - applicant acquitted of all but one criminal charge - whether decision of the Commissioner properly informed - Commissioner did not obtain or consider transcript of criminal trial - concessions made in criminal trial as to strength of evidence - failure to obtain available evidence resulted in misconception of strength of evidence - failure in process adopted by Commissioner - whether failure of Commissioner to obtain available evidence rendered removal harsh, unreasonable or unjust - substance of allegations - onus of proof - whether onus on Commissioner to prove that the allegations were true - whether Briginshaw standard applies to allegations of misconduct - Commissioner's case depended on circumstantial evidence - whether circumstantial evidence sufficient to prove conduct occurred - new evidence as to VKG radio tape and events occurring after removal - inconsistencies in evidence of applicant - inconsistency between applicant's evidence and what was said on police radio - later conduct - applicant gave evidence that metallic object was discharged from his body which related to incident - applicant's evidence of later events not accepted - later conduct adversely reflected on credibility of applicant - whether later conduct relevant to fairness of decision to remove applicant - on evidence applicant guilty of the misconduct alleged - removal not harsh, unreasonable or unjust - application dismissed Crimes Act 1900 s547B Evidence Act 1995 s140 LEGISLATION CITED : Firearms Act 1996 s39 Industrial Relations Act 1996 ss84 85 86 87 88 89 95 163 Police Service Act 1990 ss 181B 181D 181E 181F 181G 181H Ahmedi v Ahmedi (1991) 23 NSWLR 288 Apps v Clark Equipment Pty Ltd (unreported, CIM, No. 98/2479, 4/8/1999), Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Bankstown City Council v Paris (1999) 100 IR 363 Belhaven and Stenton Peerage [1875] 1 AC 278 Bigg v NSW Police Service (No.2) (1998) 80 IR 434 Boston Deep Sea Fishing v Ansell (1888) 39 Ch D 339 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Capral Aluminium Ltd v WorkCover Authority (2000) 99 IR 29 Carr v Baker (1936) 36 SR (NSW) 301 Coles Myer Ltd v SDA (1989) 27 IR 299 Darling Island Stevedoring & Lighterage Company Limited v Jacobsen (1945) 70 CLR 635 Department of Corrective Services v Public Service Association (unreported, Peterson J, Matter No 98/3890, 2/10/98) Drake Personnel Ltd v WorkCover Authority (1999) 90 IR 432 Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1 Franklins Ltd v Mervyn Webb (1997) 72 IR 257 Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Holmden v Bitar (1987) 27 A Crim R 255 CASES CITED : Holtman v Sampson (1985) 2 Qd R 472 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 Martin v Osborne (1936) 55 CLR 367 Miller v Australian Industrial Relations Commission (2001) 104 IR 415 NSW Bar Association v Livesey [1982] 2 NSWLR 231 Newton v NSW Police Service (1999) 87 IR 66 North v Television Corporation (1976) 11 ALR 599 NRMA Insurance Ltd v Tatt (1989) 92 ALJR 299 Oswald v NSW Police Service (No.2) (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 PDS Rural Products v Corthorn (1987) 19 IR 153 Printing and Kindred Industries Union v Vista Paper Products (unreported, 1357/1991, Riordan DP, 13/12/91) R v Anderson, Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 R v Hatfield [1999] NSWSC 998 R v Reeves (1994) 121 FLR 393 Ramsay v Watson (1961) 108 CLR 642 Retail Traders' Association of NSW v SDA (1990) 36 IR 38 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 SDA v Jewel Food Stores (1988) Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 WorkCover Authority v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of NSW v Bitupave Ltd (2000) 98 IR 246 HEARING DATES: 04/10/2000; 05/29/2000; 06/16/2000; 08/07/2000; 01/19/2001; 01/31/2001; 02/27/2001 DATE OF JUDGMENT: 10/05/2001 APPLICANT: Mr B Docking of Counsel SOLICITOR: Mr Treharne Walter Madden Jenkins Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr G Willis of Counsel SOLICITOR: Mr Redfern New South Wales Police Service Legal Services Branch JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President 5 October 2001 MATTER NO IRC 5614 OF 1999 ANDREW STARR AND COMMISSIONER OF POLICE. APPLICATION BY ANDREW STARR FOR REVIEW OF ORDER PURSUANT TO SECTION 181E OF THE POLICE SERVICE ACT 1990. Decision [2001] NSWIRComm 226 1 This is an application by Andrew Starr ("the applicant") for a review of an order made by the Commissioner of Police ("the Commissioner") pursuant to s181D(1) of the Police Service Act 1990 ("the Act") on 29 September 1999 ("the order") removing the applicant from the Police Service of New South Wales ("the Police Service"). 2 The proceedings are governed by Division 1B of Part 9 of the Act. Section 181E provides that a police officer may apply to the Industrial Relations Commission of New South Wales ("the Commission") for a review of an order removing a police officer from the Police Service on the grounds that the removal was harsh, unreasonable or unjust. By operation of s181G(1) of the Act, the provisions of the Industrial Relations Act 1996 ("the IR Act") apply to the application for review, subject to some stated limitations, in the same way as those provisions apply to an application brought under Part 6 of Chapter 2 of the IR Act. The Applicable Legislation 3 Section 181D of the Act provides as follows: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. (5) The removal takes effect when the order is made. (6) (Repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section, limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer has resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 4 Sections 181E, 181F, 181G and 181H generally concern a review of a decision of the Commissioner made pursuant to s181D. Those sections are in the following terms: 181E Review generally (1) A police officer who is removed from the Police Service by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (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 the 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). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently, or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 181H Commissioner and members of Commissioner's Advisory Panels compellable witnesses only by leave (1) In any proceedings before the Commissioner under this Division, neither the Commissioner nor any members of a Commissioner's Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D unless the Commission gives leave. (2) The Commission may give such leave only if it considers that extraordinary grounds exist that warrant leave being given. (3) In this section Commissioner's Advisory Panel means a panel established by the Commissioner to assist in the exercise of the Commissioner's functions under section 181D. 5 I shall later refer to some of the provisions of Part 6 of Chapter 2 of the IR Act. For present purposes it is noted that ss84, 85, 87, 88 and 89 of that Act are relevant to the present application. The Application 6 The applicant filed an application in accordance with Form 10 of the Rules of the Commission seeking an order of reinstatement to the Police Service. The applicant further sought that, in the event that the Commission considers "it would not be practicable for the applicant to be reinstated", he would seek an amount of compensation. 7 The grounds relied upon by the applicant in the application were as follows: The applicant contends that his removal from the New South Wales Police Service is harsh, unreasonable and unjust and the matters set out in the statement of reasons signed by the Commissioner of Police are factually incorrect and do not justify the Commissioner removing the applicant from the New South Wales Police Service. The Order 8 The order issued by the Commissioner was in the following terms: Order under Section 181D(1) of Police Service Act 1990 I, Peter James Ryan, Commissioner of Police, having considered your conduct and integrity, do not have confidence in your suitability to continue as a police officer. By this Order, 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 pursuant to section 181D(3)(a) of the Police Service Act, the written submissions furnished by you and a number of references made on your behalf. I have considered your 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. Reasons For The Decision 9 The reasons for the decision were annexed to the order and were expressed in the following terms: STATEMENT OF REASONS There are three grounds set out in my notice to you under s181D(3)(a) of the Police Service Act 1990. I believe that these grounds fall generally into two issues. The first issue covering ground 1, that you made a false representation to a member of the Police Service that you had been assaulted, which caused an investigation to be conducted by a member of the Police Service. The second issue covers grounds 2 and 3 and deals with your possession and safe keeping of a firearm. I have considered the following matters and taken them into account in reaching my determination. In respect of the first issue. There is material before me that suggests that you deliberately wounded yourself with an air rifle. Additionally, it is suggested that an air rifle located in the boot of your private vehicle was the weapon used by you to inflict the injury upon yourself. You were criminally charged in relation to this incident. You have vehemently denied these charges and the accusation, asserting that you saw two asian males, whom you chased. You struggled with one of these males, who pushed something against your stomach, which was some type of weapon, he then wounded you and decamped. I have the task of determining which version of this incident I accept. The material provided to me discloses that clearly you were wounded. Clearly there was a 4.5mm air rifle in the boot of your vehicle and you pleaded guilty to the possession of that firearm. There is evidence from an independent witness that he saw you at the boot of your vehicle shortly before the incident with a long object. You suggest you were at the boot with a water bottle. An expert from the Forensic Ballistic Section stated that in his opinion, as a result of tests, that damage to your police shirt was consistent with having been caused by an impact of a pointed air gun pellet fired from a 4.5mm firearm, with the muzzle held in hard contact with the police shirt at the time of discharge. However, he was not able to state whether the firearm from the boot of your vehicle was the one used to inflict the wound, because the pellet was not recovered and could not be scientifically matched. An expert from the Institute of Pathology and Medical Research examined the 4.5mm firearm and your police shirt and took DNA samples. He concluded that the samples could be matched, as the DNA profile from each of these items is found in 1 in 2600 of the general population, or 0.038%. In rebutting this material you suggest that the case, purporting that you wounded yourself, was dismissed by the magistrate. I accept that the case was dismissed on the basis that it could not be proved to the criminal standard, beyond all reasonable doubt. However, the magistrate did not dismiss the matter out of hand and did not rule that it had been brought in bad faith. Nor did he rule that it was a vexatious or malicious prosecution, but found that there was a prima facie case. He was not satisfied to the criminal standard. I am not asked to make a determination at a criminal standard, but on a balance of probability. Having regard to the material placed before me, which is opposed only by your denial, I have formed the view, that I cannot accept your version of this incident and am of the view that you wounded yourself. In respect of the second issue. I have considered this second issue as subordinate and taken the view that the first issue, ground 1 is the primary concern. I have taken into account your plea of guilty to possessing the firearm and I also acknowledge the magistrate imposed a recognisance. I have not placed great weight upon this matter in coming to my determination. I note the charge of not safekeeping a firearm was withdrawn at court and I have not given that matter any weight in my determination. I note that you raise questions of discrimination, by Superintendent Laycock and the investigator of this matter, against you and refer to an adverse finding made against them. I note your comment, however, those matters do not negate the primary mater, being ground 1. There is no evidence which suggests that either Superintendent Laycock or the investigator, Inspector Rees, acted fraudulently in relation to this matter or distorted the material provided to me. You have also raised questions concerning vandalism, theft, vilification and harassment against you, and from the content of your response I take it you hold fellow police officers responsible. Actions of this type by officers, appear in contrast to the voluminous amount of references that you have provided to me from fellow police. I am aware of the tensions surrounding Fairfield in the wake of the Carty murder, however, I must again state that these circumstances do not negate or support the material provided to me, upon which I must make a determination. Your response indicates a view that people refused to accept your version of this incident and therefore it could be inferred that I would also make a determination in this matter before I had an opportunity of perusing the material which you wished to place before me and which I am required by legislation to take into account. On that basis your response lacks much detail. This is unfortunate, as you are wrong in your view, as I had not made any pre-determination on this matter and you have not addressed the material that has been put to me with the aim of negating such, apart from your denials. I have considered your response in regard to the material provided to me. I have an overall duty of care to the Police Service and indeed the people of this State. I cannot accept your assertions as a valid answer as to your conduct and integrity. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service. The Profile and Notice issued Pursuant to s181D(3)(a) 10 Prior to the issue of the order, a notice dated 4 June 1999 was issued pursuant to s181D(3)(a) of the Act ("the notice") to the applicant in the following terms: Notice under Section 181D(3)(a) of the Police Service Act 1990 The Commissioner's Confidence provisions allow for the Commissioner of Police to remove an officer where he has lost confidence in their suitability to remain a police officer. This is determined by the Commissioner on the basis of one or more of the following criteria: conduct, integrity, performance, or competence. In accordance with section 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I do not have confidence in your suitability to continue as a police officer taking into account the criteria of your conduct and integrity on the basis of the following grounds:- 1. On the 25 April, 1998, you made a false representation to a member of the Police Service that an act had been done, that is, that you had been assaulted, which act as so represented called for an investigation by a member of the Police Service. 2. On the 25 April, 1998, you had in your possession a firearm without being the holder of a license or permit, contrary to section 7(1) of the Firearms Act, 1996. 3. On the 25 April, 1998, being in possession of a firearm, you failed to take all reasonable precautions to ensure its safekeeping, contrary to section 39(1) of the Firearms Act, 1996. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under section 181D of the Police Service Act 1990. In accordance with section 181D(3)(b) of the Police Service Act, 1990, prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submission and you are not obliged to do so. Attached is a copy of your service history and the facts relating to the matter. 11 The phrase "facts relating to the matter" refers to a document entitled "Commissioner's Confidence Submission" which was annexed to the Notice. This document was created for the purposes of the s181D procedure and contains a profile of the applicant and facts relating to the incident. It shall hereafter be referred to as "the profile". The creation of this document and its contents will be considered in greater detail later in this judgment. For present purposes it is sufficient to set out the relevant sections of the document which was prepared by the Strategic Assessments & Security Centre of the Police Service: CRITERIA Conduct Integrity FACTS (A) About 5.20am, 25th April 1998, Constable Starr whilst on duty at Fairfield Police station, went to his private motor vehicle for the purpose of obtaining a headache tablet. It is alleged Constable Starr obtained an air rifle from the boot of his vehicle, placed it against his stomach, pulled the trigger and inflicted a slight wound. He then called for assistance via police radio indicating that he had been wounded and indicated he was in foot pursuit of two Asian men, one of whom had shot him. He was subsequently treated at Liverpool Hospital for a minor stomach wound. An investigation commenced and Constable Starr's vehicle was searched on the day of the incident and an air rifle was located. An independent witness saw Constable Starr at the boot of his vehicle with a long object shortly before the incident. At the completion of the investigation, approval was given to summons Constable Starr for the offences of "Public Mischief", "Unlicensed Firearm" and "Not Ensure Safekeeping of Firearm". These matters were set for hearing at the Downing Centre Local Court on 24th to 27th November 1998 inclusive. As a result of suspicions surrounding the credibility of the incident as described by Constable Starr, expert physical evidence was gathered. An expert from the Forensic Ballistics Section took possession of the air rifle (4.5mm) found in the boot of Constable Starr's vehicle and the damaged police shirt. As a result of a number of tests the expert stated "In my opinion the damage to the front lower right side of the exhibit police shirt, (13a), is consistent with having been caused by an impact of a pointed air gun pellet fired from a .177 calibre (4.5mm) firearm, with the muzzle held in hard contact with the material at the time of discharge." However the expert was unable to state whether the rifle taken from the Constable Starr's car was the firearm used in the shooting as the pellet that inflicted the wound was never recovered. An expert from The Institute of Clinical Pathology and Medical Research examined both the air rifle and the damaged police shirt worn by Constable Starr. The expert took DNA samples from both items and concluded they could be from the same person. "The DNA profile from each of these items is found in approximately 1 person in 2600 of the general population. The 95% confidence interval covers the range 1 in 2100 to 1 in 3200." On 27th November 1998, Magistrate Mr McIntosh SM, dismissed the 'Public Mischief' information as he was not satisfied beyond reasonable doubt that the air rifle found in the boot of Constable STARR's car was in fact the air rifle alleged to have been used in the offence. The Director of Public Prosecutions withdrew the information relative to 'Not Ensure Safe Keeping of Firearm' and Constable Starr pleaded guilty to 'Possess Unlicensed Firearm'. Mr McIntosh commented this was a serious offence and even more so that Constable Starr was a police officer. However, he considered all the circumstances of the case and commented upon the fact that as this was an air rifle and not a more powerful weapon, he was able to invoke the provisions of s556A of the Crimes Act. An application for costs by the defence was rejected. Mr McIntosh did not make any adverse comments concerning the investigation. Police Service Action The Police Service initiated an internal investigation – CIS 98002582 that resulted in Constable Starr being summonsed for the above mentioned offences. He was subsequently suspended from duty with pay and remains so. The internal investigation identified the issues in terms of the alleged offences committed. Once the judicial proceedings were finalised, the investigator relied upon the court results in order to determine whether the issues were proven from a departmental perspective. He found there was insufficient evidence to support sustained findings of 'Public Mischief' and 'Not Ensure Safekeeping of Firearm' but found the issue of 'Possess Unlicensed Firearm' sustained. Commander's comments Superintendent Laycock supports the nomination, indicating Constable Starr has lost the confidence of the Command, his Superiors and peers at Fairfield Local Area Command. The Cases Presented by the Applicant and the Commissioner 12 As was stated in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 107, s181F(1) of the Act requires the Commission to firstly consider the Commissioner's reasons for the removal and then the case presented by the applicant as to why the removal of the applicant was harsh, unreasonable or unjust and the Commissioner's reply to the applicant's case. Section 181F was described in Newton v New South Wales Police Service (No. 2) (1999) 87 IR 66 at 75, 77 and 79 as follows: While s181F requires the Commission, firstly, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. ... Section 181F picks up those notions and, in reviewing a dismissal under s181D, imposes a statutory obligation on the Commission to consider the three matters specified in s181F(1) before finally determining the matter. In our view, it is an obligation which the Commission is not free to depart from in the way proposed by the appellant. ... The passage emphasised confirms our consideration of s181F; that the role of the Commission is to conduct a review of the merits of the decision of the Commissioner of Police, to consider the whole of the circumstances of the matter in the way determined by s181F and apply the statutory criteria in that situation. 13 The Commissioner's reasons shall be examined in detail later in this decision. It is appropriate at this juncture to briefly set out the respective cases of the applicant and the Commissioner before proceeding to a more detailed examination of the evidence and discussion of the submissions. Case for the Applicant 14 Mr B. Docking of counsel, who appeared for the applicant, submitted that the applicant should be reinstated to his position with the Police Service as the decision to remove him was harsh, unreasonable or unjust in that there was both procedural and substantive unfairness. 15 Mr Docking made the following submissions as to what he described as 'procedural unfairness' in the decision of the Commissioner: 1. The decision was uninformed in that the Commissioner did not consider all the evidence that was material to the decision being made. Particularly the brief of evidence and transcripts from the Local Court proceedings. 2. In making his decision the Commissioner did not confine himself to the rules of reason and justice, in that he failed to take into account relevant material that was available, and gave improper weight to the material considered. 3. The findings made by the Commissioner, upon which the decision to terminate the applicant was made, were not open to him on the evidence. 16 As to 'substantive unfairness', Mr Docking submitted that it is only if the applicant fails on the procedural question does the issue of substantive unfairness need to be decided. According to the applicant, substantive unfairness has been made out due to the following: 1. The Commissioner has not satisfied his evidentiary burden to prove that the applicant was guilty of the conduct in ground 1 of the Notice. 2. Given that he has failed to make out ground 1, and the respondent conceded that if it had not been for this ground the applicant would not have been removed from the police force, the removal is unfair as it is too harsh a penalty for ground 2. 17 The 'substantive unfairness' question was therefore said to rest on the resolution of the following question: did the applicant shoot himself with the air rifle that was in the boot of his car? It was submitted that, on the evidence in these proceedings, the Commissioner had not established that the answer to that question was affirmative on the appropriate standard of proof. 18 I shall return the submissions of the applicant in greater detail later in this decision. Case for the Commissioner 19 Mr G Willis of counsel, who appeared for the Commissioner, denied there was any procedural unfairness in the decision making process. It was submitted that the materials considered by the Commissioner in coming to his decision to remove the applicant contained sufficient information to enable him to make an informed decision. Mr Willis further submitted that the legislation provided an opportunity for an officer to respond to a notice. If an officer failed to correct any errors or misconceptions contained in the notice, it was submitted that the Commission should take that matter into account in considering whether the officer had been afforded procedural fairness. 20 As to the substantive unfairness issue, Mr Willis submitted that the Commission should make a determination as to the allegations made against the applicant. It was submitted that the conclusion as to the substantive issue should be that the applicant is guilty of the conduct alleged against him (this contention will be further discussed in the following section dealing with the 'course of the proceedings' in relation to the making of the order by the Commissioner). The Commissioner had discharged, it was contended, any evidentiary burden falling upon him to warrant such a conclusion. The parties' submissions as to the issue of the "evidentiary burden" shall be discussed later in this decision. 21 Broadly speaking, the Commissioner submitted that the applicant must be found to have committed the conduct alleged due to the ample circumstantial evidence presented against him. It was said that this evidence was sufficient to show that the applicant did shoot himself with the rifle contained in the boot of his car. Course of the Proceedings 22 The following are three aspects of the course of the proceedings which should be referred to at the outset. Evidence as to an Object 23 The programme initially set for the hearing of the matter was interrupted near the commencement of the proceedings by an application by the Commissioner to vacate the dates which had been fixed for hearing. That application was based upon the service by the applicant upon the Commissioner of statements of evidence. The service of the evidence was late, being served outside the dates set in the timetable. The Commissioner contended that the statements of evidence filed raised fundamental new questions of fact. 24 The evidence included certain medical and forensic reports relating to a metallic object which the applicant claimed had been expelled from the same site of his body where he was initially wounded. It was submitted that the new material substantially altered the case and the nature of the material that the Commissioner was being asked to meet. Further, the Commissioner submitted that the evidence was significant as it went to the truth of the applicant's story as to the events of 25 April 1998. In that sense, it was submitted that it might be the case that the results would lead the Commissioner to reconsider his original decision to remove the applicant. It was submitted that more time was required to conduct examinations of the object as the case depended upon whether or not the applicant's version of events was the truth. 25 The applicant believed this evidence was crucial to his case as corroborative of his version of events and, as a result, he now planned to engage in a "head on" attack upon the medical and forensic evidence put forward by the prosecution in the Local Court proceedings. This "attack", grounded in the new evidence, would be in the form of calling expert witnesses to firmly counter the Commissioner's allegations. 26 The Commission granted the Commissioner's application to vacate the scheduled hearing dates as the dictates of justice required that the Commissioner be given more time to examine the material which was said to give rise to new issues in the proceedings. The Applicant's Police Shirt and the Gecado Air Rifle 27 A summons was issued by the applicant to the Commissioner for the production of various items and documents. Two of those items were the police shirt the applicant was wearing at the time of the incident and the air rifle found in the boot of his vehicle. Upon the calling of the summons on the date originally set for the hearing of the matter, Mr Willis submitted that the shirt had been cut up for forensic testing and only the cut up sections of the shirt could be supplied at that stage. These were produced to the Commission. Further, it was submitted the air rifle could not be produced as it had been destroyed following the Local Court proceedings in accordance with a court order. 28 The Commission required the Commissioner to file an affidavit as to the items not produced. In the result, an affidavit by Detective Inspector Champion was filed. The Detective Inspector detailed the circumstances of the non-production under the summons of the shirt and rifle. With regard to the rifle, Detective Inspector Champion deposed that the rifle remained in the custody of the Sydney Crime Scene Unit until the completion of the Local Court proceedings and then was destroyed pursuant to the order of the Magistrate, Mr McIntosh. As to the shirt, Detective Inspector Champion deposed that Detective Sergeant Roach had taken the shirt into his possession on the day of the incident and then returned it later that day. It was then taken to the Crime Scene Laboratory on 27 April 1998 and then later taken into the possession of Detective Sergeant Roach on 20 July 1998. The shirt was retained by the Crime Scene Section and produced in the Local Court proceedings. Upon the completion of the Local Court proceedings the shirt was returned to Detective Inspector Rees and retained at Fairfield Police Station. Detective Inspector Champion then deposed that, despite exhaustive inquiries, the shirt could not be located. 29 The absence of the shirt led the applicant to raise objections to the admission of parts of the evidence of a police expert witness called for the Commissioner, Sergeant Roach. Sergeant Roach had conducted ballistics and forensic examinations on both the gun and the shirt. The objections specifically went to the reports of Sergeant Roach dated 22 July 1998 and 28 March 2000. The objections broadly concerned the following: 1. In the case of the reports of Sergeant Roach dated 22 July 1998 and 28 March 2000, any reference to the breakage of fibre pertaining to the police shirt. 2. In the case of the report of 28 March 2000, opinions expressed as to what the applicant described as medical issues. 30 The second category of objection pertained to the Sergeant's opinions as to the metal object and the likelihood that it had expelled from the applicant's body some 18 months after the original wounding. 31 The first objection related to the loss or destruction of the police shirt. The applicant contended that the shirt was a critical exhibit; an essential issue being the cut, hole or tear in the shirt. In this respect the applicant referred to the evidence of Sergeant Roach in the Local Court proceedings which, it was submitted, showed inconsistency and/or ambiguity in what had been said about the cut, hole or tear. For example, it was submitted that there was a conflict between "the pellet entered" as opposed to "not penetrating the shirt", and between "a broken fibre of the shirt weave" and "breaking some cloth fibres". 32 It was submitted that the applicant would suffer prejudice as a result of the loss of the shirt. The applicant pointed to the evidence of Detective Inspector Champion under cross-examination (given during the course of the proceedings) to the effect that the shirt was an exhibit of critical importance. The Detective Inspector also conceded, it was submitted, that it was grossly unfair to the applicant that the shirt was not made available. Due to the absence of the shirt, the applicant was prejudiced from conducting any examinations on or analysis of it. 33 In light of these circumstances the applicant submitted that the Commission should make appropriate orders to remedy the prejudice to the applicant and to "address his quite intolerable position that interferes with a fair trial." It was submitted that this could be done by rejecting the tender of any evidence relating to the breakage of fibre and the opinions put forward by Sergeant Roach in his 28 March 2000 report where he stated that the damage to the shirt was completely consistent with pellet impact. 34 The Commission ruled on these objections and admitted the entirety of the report of 22 July 1998, thereby ruling against the applicant's objections arising from the loss of the shirt. The Commission upheld the balance of the objections earlier described. At the time of this ruling it was indicated that reasons for that decision would be given in the final decision in this matter. Those reasons are found later in this decision. The Discovery of the Applicant's Police Shirt 35 Some time after the decision in the proceedings was reserved, Mr Lynch of the Court and Legal Services section of the Police Service, wrote to my associate indicating that "an object" previously called upon by the applicant had been discovered. 36 Detective Chief Inspector Randall of the Mount Druit Local Area Command of the Police Service, swore an affidavit to the effect that upon receipt of a file concerning a Departmental Inquiry into the loss of the shirt he contacted the Exhibit Officer at Fairfield Police Station who informed him that the shirt was on hand with the other exhibits pertaining to the criminal charges brought against the applicant. During his investigation, Detective Chief Inspector Randall found that the shirt had been handed to a Constable Dixon of the Greater Hume Region Anti-Theft Unit, who had been given the shirt one day whilst at court by a detective he could not name. Constable Dixon then returned the shirt to the Fairfield Police Station. 37 By notice of motion the Commissioner sought to re-open the case in order to tender the shirt into evidence for the purpose of complying with the summons for production issued at the beginning of the proceedings. The orders sought in the notice of motion were in the following terms: 1. That the police shirt identified in the affidavit of Alan Maurice Champion be produced to the Commission in answer to the summons for production served upon the respondent by the Applicant. 2. That the evidence in this matter be re-opened. 3. That the police shirt identified in the affidavit of Alan Maurice Champion be admitted into evidence in the Respondent's case. 4. That the Applicant be given access to the police shirt identified in the affidavit of Alan Maurice Champion, for the purpose of conducting any tests and/or examinations upon it, relevant to the issues in this case. 5. That the Applicant be given leave to call evidence arising from any tests and/or examinations of the police shirt. 6. That the Respondent be permitted to cross examine any witness called by the Applicant to give evidence concerning any test or examination of the police shirt. 38 Detective Inspector Champion also swore an affidavit in support of the notice of motion requesting that the Commission make the orders sought notwithstanding the fact that the shirt was not available at the time of the hearing. 39 The applicant swore an affidavit in reply in support of his opposition to the re-opening of the case. He deposed that the application was grossly unfair and he was now being put through further emotional and financial burdens due to the gross negligence of the Commissioner. He further questioned the integrity of the explanation for the loss of the shirt, alleging that it was contrary to and difficult to reconcile with the evidence given on the subject at the hearing. Further, the applicant did not concede that it was the same shirt he was wearing on the day in question. 40 Upon the hearing of the motion, Mr Willis submitted that the orders sought should be granted to enable the Commissioner to comply with the summons for production of the shirt and to overcome the claim of prejudice the applicant had raised during the proceedings by reason of the Commissioner's inability to produce it. 41 Mr Docking stated that the applicant relied upon his written contentions. In those contentions it was submitted that the Commissioner's application failed to overcome one necessary hurdle in that it must show that the evidence could not have been discovered at the relevant time by due diligence. Further, it was submitted that the interests of justice should give rise to a refusal of the application to reopen the case in that the applicant's resources had been exhausted by the litigation and he faced "quadruple jeopardy" due to the various proceedings against him. As a result, it was contended that the applicant's "psychological well-being" could not sustain any further litigation. The applicant also queried the chain of custody of the evidence over the period of its absence. 42 It is noted that those submissions were made notwithstanding the applicant's earlier claims that the loss of the shirt was of great prejudice to the applicant in that he was deprived of an opportunity to have independent forensic analysis of the shirt. Indeed, that was the catalyst for the aforementioned objections to the evidence of Sergeant Roach. This anomalous situation was recognised by the applicant in his affidavit sworn for the purpose of opposing the Commissioner's application. The applicant stated that although he had placed "some significance" on the loss of the shirt during the hearing, the fact that it was not produced was no fault of his own but rather was due to the Commissioner's negligence. In any event, Mr Docking indicated that the applicant did not wish to examine the shirt if it was admitted into evidence. 43 The issue of what effect the granting of the orders sought would have on the earlier ruling on objections to the evidence of Sergeant Roach was then raised by the Commission during the course of submissions on the notice of motion. In this regard, it was suggested to Mr Willis that the application may indirectly have the effect of impeaching the earlier ruling. Mr Willis conceded that he had not considered the question in that way and, after gaining instructions, did not press paragraphs 2, 3, 5 and 6 of the orders sought. 44 In reply, Mr Docking submitted that the order sought under paragraph 1 was meaningless in the context of the Commissioner's concessions. Further, the motion should not succeed as the Commissioner had not put on any forensic evidence as to the condition of the newly found shirt. In this regard, it was submitted the motion failed to reach the fundamental threshold point of whether the evidence, if believed, would "most probably" affect the result. As the Commissioner had made the "forensic choice" not to put on such evidence, there should not be any re-opening of the proceedings in any form. 45 Noting Mr Docking's submissions that, if produced, the applicant would not seek access to the shirt, and also that the Commissioner resiled from his application to have the proceedings re-opened, it was unnecessary to determine paragraph 4 of the motion. In relation to paragraph 1, the Commission determined that, to the extent the production of the shirt required a re-opening of the proceedings, it would make that order, but only to the limited extent of allowing the shirt to be produced upon the original summons. Background to the Initiation of s181d Proceedings 46 The applicant is a 28 year old former police officer who held the rank of Constable at the time of his removal from the Police Service. He commenced employment with the Police Service in 1994, acting as a Special Constable attached to the Security Management Branch of the Sydney Police Centre, during which time he was, amongst other things, assisting in matters relating to the then Royal Commission concerning the Police Service. He left that employment to commence training as a student police officer at the Police Academy Goulburn. 47 The applicant was sworn in as a probationary Constable in February 1997 and began general duties at Fairfield Police Station. With the exception of a three month secondment to the Transit Police at Campbelltown, the applicant remained stationed at Fairfield. He was still serving at that location at the time of the incident giving rise to the allegations made against him. 48 On the evening of Friday 24 April 1998 the applicant had commenced duties at 6.30pm on Fairfield 17 (a marked police vehicle) as an observer, with Constable Robert Albert. As was often the case for those commencing an evening shift, there was no parking within the station and so the applicant had parked his private vehicle on the street, around the corner from the Fairfield Police Station. The evening was by all accounts a busy one. At about 4.15am, the applicant and several other officers arrested a young Asian man for a break, enter and steal offence which was apparently committed earlier that evening at a doctors surgery in Smithfield. The applicant and Constable Albert returned to Fairfield Police Station with the prisoner and conveyed him to the dock of the charge room. Having secured the prisoner, the applicant left the police station and went to his private vehicle. 49 The respective cases of the applicant and the Commissioner diverge substantially at this point. For present purposes, I simply note that it was common ground the applicant did suffer a wound inflicted by a firearm on the morning of the 25 April 1998 and, in the result, he was conveyed to Liverpool Hospital. He remained at that hospital until 27 April 1998. On 27 April, the applicant gave a statement to investigating officers in which he detailed the events of the morning of 25 April. On 5 May 1998, the applicant was again interviewed, this time by Detective Inspector Rees, at which time he confirmed the contents of his earlier statement. 50 Since his removal from the Police Service, the applicant worked as a barman for a period of approximately 3 months. The applicant stated that he left that job due to problems with his abdomen and since then he has been in receipt of unemployment benefits with incapacity. He also stated that his psychological wellbeing has diminished under the strain of the incident and he was, for a time, under the care of a psychiatrist. The Local Court Proceedings 51 The applicant was subsequently charged with three offences as follows: 1. a breach of s7(1) of the Firearms Act 1996 2. a breach of s39(1) of the Firearms Act 1996 3. the offence of "public mischief" under s547B(1) of the Crimes Act 1900 52 Section 7(1) of the Firearms Act was in the following terms: 7. Offence of unauthorised possession or use of firearms (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or a permit. Maximum penalty on summary conviction: 50 penalty units or imprisonment for 2 years, or both. Maximum penalty on conviction on indictment: imprisonment for 14 years (if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol), or imprisonment for 5 years in any other case. 53 Section 39(1) of the Firearms Act was in the following terms: 39. General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. 54 The charge with respect to public mischief was bought under s547B(1) of the Crimes Act 1900 which was in the following terms: 547B Public mischief (1) Any person who, by any means, knowingly makes to a member of the police force any false representation that an act has been, or will be, done or that any event has occurred, or will occur, which act or event as so represented is such as calls for an investigation by a member of the police force, shall be liable on conviction before a Local Court constituted by a Magistrate sitting alone to imprisonment for 12 months, or a fine of 50 penalty units, or both. (2) For the purposes of subsection(1), a person shall be deemed to make a representation to a member of the police force if the person makes the representation to any other person and the nature of the representation reasonably requires that other person to communicate it to a member of the police force and that person does so communicate it. 55 The charge against the applicant under this section was read by Mr Docking in opening submissions and was in the following terms: That on the 25th day of April 1998 at Fairfield in the State of New South Wales one Andrew William Starr did by means of statement and conversation knowingly make to Michael Paul Rees a member of the Police Service a false representation that an act had been done, that is to say an assault upon Andrew William Starr had been committed which said act as was so represented in such statement and conversation called for an investigation by a member of the Police Service. 56 As Mr Docking submitted, that charge turned upon whether the air rifle in the boot of the applicant's car was the one used to inflict the wound upon him. 57 The three charges came before Magistrate McIntosh of the Local Court of NSW in November 1998. The public mischief charge was dismissed on 27 November 1998. The Magistrate stated the following as his reasons for the dismissal of the charge: It is my view, I cannot be satisfied beyond reasonable doubt, and I am only dealing now with the charge of public mischief. I cannot be satisfied beyond a reasonable doubt that the air rifle found in the boot of Mr Starr's car was in fact the air rifle alleged to have been used. I cannot find beyond reasonable doubt that it was used in the offence. Accordingly, I am not satisfied beyond reasonable doubt that the Prosecution case has been made out, and I formally dismiss the information. My formal order is that the information be dismissed. 58 The charge relating to safe keeping of a firearm was not pursued by the Director of Public Prosecutions. The applicant pleaded guilty to the charge of unlicensed possession of a firearm. As to that charge, the Magistrate invoked the provisions of s556A of the Crimes Act 1900. The Procedure Adopted by the Commissioner 59 Broadly speaking, the procedure adopted by the Commissioner in this case consisted of: 1. The applicant was identified by Commander Laycock, the applicant's superior at the time of the incident, as a police officer who may warrant action being taken pursuant to s181D of the Act. 2. A procedure was then adopted to assist the Commissioner in determining whether or not to issue a notice pursuant to s181D(3)(a) of the Act. This involved a person entitled an 'analyst' preparing the profile, which was then provided to the Commissioner (after some scrutiny, in this case, by Detective Inspector Champion). The Commissioner played no role in the preparation of the Commissioner's Confidence Submission and at no stage received any of the source materials that were provided to the analyst. 3. Having reviewed the material in the Commissioner's Confidence Submission, the Commissioner determined that he would issue the Notice pursuant to s181D(3)(a). 4. The applicant made a submission to the Commissioner pursuant to s181D(3)(b). Together with his response, the applicant forwarded various documents to the Commissioner. These included the applicant's statement made on 27 April 1998 and numerous character references and messages of support. 5. An analyst then prepared an analysis of the applicant's submission. This document, together with the profile and the applicant's submissions and accompanying documents, were then provided to the Commissioner for the purposes of considering whether to issue an order. 6. The Commissioner read the above documents and determined that he would issue the order to remove the applicant from the Police Service. The preparation of the "Statement of Reasons", earlier referred to, was then undertaken. The document was prepared after a face to face meeting between Detective Inspector Champion and the Commissioner. They discussed, at this meeting, the points that had influenced the Commissioner's decision and which were considered important to be referred to in his reasons. Upon an agreement having been reached between the Commissioner and the Detective Inspector as to what should be referred to in the reasons for the decision, Detective Inspector Champion prepared a draft of those reasons. 7. Once a final draft of the Statement of Reasons had been settled, the Commissioner signed the order and it was served on the applicant along with the Statement of Reasons. The Profile 60 Detective Inspector Allen Maurice Champion, an officer attached to the police internal affairs unit, was provided the applicant's name as "a candidate for a Commissioner's confidence action" by the applicant's then commander, Superintendent Laycock. He was then assigned the task of preparing a "Commissioner's Confidence Submission" (hereafter "the profile") to a member of the internal affairs staff, referred to as an analyst. He gave instructions to prepare a summary of the applicant's service history, a summary of facts involved in the charges that had been proffered against the officer and the action taken by the Police Service to that point of time. 61 A written procedure was introduced by the Police Service to deal with processes concerning s181D of the Act. That procedure was contained within a document entitled "Commissioner's Confidence Process: Section 181D of the Police Service Act 1990" and applied to the case of the applicant. 62 The written procedure is the standard operating procedure for handling matters potentially requiring attention under s181D of the Act. It provided for the nomination of a police officer who may warrant consideration under the provisions of s181D. An initial assessment is then made within the Police Service as to whether the matter should be progressed. This initial assessment is undertaken by a review team. If the review team decides to progress the nomination of a police officer, a profile, a notice pursuant to s181D(3)(a) and a performance warning notice is prepared. 63 The procedure established the following standards for the development of the profile: 4.1 A Profile is a critically and clinically researched document that details the: · Officer's service history; · Criteria under which they are being considered (for example, conduct and integrity); · Facts relating to the contemporary issue and linked sustained matters being considered including Police Service action(s); · Officer's current employment status. 64 There was no record kept of the analyst/s who prepared the profile in the present case. Hence, any reference to an analyst is a reference to an anonymous person employed in Internal Affairs. Evidence was given by Detective Inspector Champion that at the time of the actions giving rise to the applicant's removal, all members of the team of analysts had criminal investigative training and were police officers. 65 The standard operating procedure does not lay down any specific criteria as to the assessment of factual issues. The analyst/s examine the material provided to them in preparing the profile. They are required to consider the bona fides of the material supplied and to weigh up competing evidence, including the consideration of corroborative and scientific evidence. Where there are conflicts between versions of events, the analysts are instructed to "resolve the issue as best they can". In this case, Detective Inspector Champion conducted a final review of the profile before it was sent to the Commissioner. He examined whether the material was of an appropriate standard to progress to the Commissioner and whether it was in a suitable style having regard to grammatical and typographical accuracy. 66 The source material presented to the analyst in this case included a file described as CIS 98002582 brought into existence as the result of an internal investigation of the matter by Detective Inspector Rees, the officer in charge of the investigation into the events of the 25 April 1998, and a brief of evidence prepared in the Local Court proceedings. These two files were purported to be largely similar in terms of their contents. The source material included, inter alia, numerous statements of officers at the scene, medical reports concerning the applicant, reports from ballistics and other expert witnesses, photographs of the scene and a copy of the Magistrate's decision in the Local Court proceedings. More relevantly, for present purposes, is what the brief did not contain. It did not contain any of the transcripts or other record of the proceedings before the Local Court (other than the final decision). These transcripts were not obtained and were not before the analyst or the Commissioner at any time. 67 The profile forms the substantial basis of the applicant's complaint as to a denial of procedural fairness. This complaint goes to the lack of material before the analyst when preparing the submission and subsequently the manner in which the profile utilised the evidence from the source material. The issue also extends to the absence of such material before the Commissioner. 68 In relation to the instructions that were given to the officers preparing the submission, Detective Inspector Champion gave the following evidence: Q. Did you have any instruction in place, for the analyst concerning Mr Starr's matter, to make sure that there's a summary of the information from the file, which doesn't have any embellishments, or inferences and that it is an accurate and reliable summary of the evidence? A. Yes, that would be an understanding of the duties of the analyst. 69 Detective Inspector Champion deposed that he had reviewed and signed off on the Commissioner's Confidence submission, prior to it being presented to the Commissioner. He also deposed that he had reviewed the Notice prior to it being issued to the applicant. The Notice 70 According to the standard operating procedure, upon receipt of a nomination (which may come from the officer's Commander/Manager or an external agency such as the Ombudsman, Police Integrity Commission or New South Wales Crime Commission) an initial assessment is conducted by the Commander of the Probity Assessment Unit of Internal Affairs and then forwarded to a s181D Process Review Team consisting of the Commander and Research Manager of the Probity Assessment Unit, and Senior Analyst of the Strategic Assessment and Security Centre. The Process Review Team then takes the following steps: If the Review Team decides to progress the nomination, a Profile, s181D Notice and Performance Warning Notice are prepared. Through the chain of command the Commander of the Probity Assessment Unit arranges service of a letter which: · Notifies the officer that they are being considered under s181D · Indicates that their Commander Manager must take managerial action in relation to their operational duty/functions · that a case officer from Health Services has been advised (only that they are being considered under s181D) and will be in contact. 71 The matter is then initiated on the Complaints Information System (CIS) for record management purposes when the Review Team determines the matter should be progressed. 72 The notice is prepared by a member of the internal affairs staff and forwarded to the Commissioner to sign. In this case the Notice was signed by the Commissioner on 4 June 1999 and served on the applicant on 11 June 1999. 73 The only factual information the Commissioner received, for the purposes of determining whether or not he should issue a notice pursuant to s181D(3)(a) of the Act, was the profile prepared in the above outlined manner. The Commissioner was not, therefore, advised of any of the evidence adduced at the Local Court proceedings. As mentioned above, this is one of the fundamental complaints made by the applicant as to a denial of procedural fairness, and it is an important factor in considering the applicant's response to the notice. Submission by the Applicant in Response to the Notice 74 Following receipt of the Notice the applicant made a submission to the Commissioner. In his response the applicant noted that the Notice summarised what he was alleged to have done, that being "falsely representing that he had been assaulted." 75 The applicant denied that allegation and protested his innocence of any such wrongdoing (despite, in his submission, a refusal by others to accept his version of events). 76 In his submission, the applicant expressed some concerns regarding the investigation and the treatment meted out to him by other officers. He wrote: If you think that I am being over sensitive about the manner in which I was treated, then may I point out to you just a few of the things that happened to me after I was wounded? Superintendent Laycock told me that he did not believe my account of what had happened and he told me that if I resigned from the Police Service he would not criminally or departmentally charge me, as I understand it, that conduct by Mr Laycock probably amounts to an intent to pervert the course of justice. I hope Sir, that you are aware that Mr Laycock and Mr Rees were both the subject of an Internal Affairs investigation which examined their conduct in relation to a variety of matters concerning the way I was treated. As I understand it, both Mr Laycock and Mr Rees had [adverse] findings made against them. Whilst I was waiting for my hearing in relation to the three charges that were brought against me, I was subjected to acts of vandalism, theft, vilification and harassment. Letters that were sent to me at the Fairfield Police Station were removed from my pigeonhole and destroyed, so too were some of my pay cheques. I was the subject of ongoing rumour and innuendo and on one occasion some drunken police attended the front of my house late one evening, and harassed my family and I. 77 The applicant put in his submission further examples of a similar nature, including some comments attributed to Inspector Laycock contained in a local newspaper. He submitted to the Commissioner (emphasis in original): Even after I was found not guilty of the charge of making a false report that I had been assaulted, Superintendent Laycock still could (sic) accept the Court's decision, and when he was interviewed by somebody from the Fairfield City Champion Newspaper, he said that "The firearm located was the one used to inflict the injury". I attach hereto a copy of that article. In fact, the very thing that the magistrate found was that the firearm found in the boot of my car was not the one that had been used to injure me. Thus sir, you may be able to see why it is that I am confident that no matter what I say in this response, will no change the minds of people like Mr. Laycock and Mr. Rees, or those other members of the Police Service who are incapable of accepting the decision of the magistrate. Returning to the two page document that was served on me with the Notice, I note that somebody who conducted an internal investigation found there was "insufficient evidence to support findings of 'Public Mischief' and 'Not Ensuring Safekeeping of Firearm' but found the issue of 'Possess Unlicensed Firearm' sustained". If only one issue was sustained, I ask why it is that all three issues are the basis of the Notice? 78 The applicant set out his employment history in his submission. This included reference to a number of commendations. He annexed a series of character references addressed to the Commissioner. 79 He then concluded: In relation to the three grounds on the Notice I say the following. I did not wound myself on the morning of 25 April 1998. The contents of my statement of 27 April 1998 are true and correct. I have attached a copy of that statement. I borrowed the air rifle that was in my car from a friend Mr Robert McIntosh. After the magistrate dismissed the charge of "public mischief" the DPP withdrew the charge of not ensuring safe keeping of it, and after I pleaded guilty to the unlicensed possession of the air rifle, the magistrate unconditionally dismissed the matter under the provisions of section 556A of the Crimes Act, which meant I was not convicted. It was an error of judgment on my part to have the air rifle, however it was not such a serious matter to warrant my removal from the Police Service. 80 He further asserted the truth of statements he had given, claiming that there was no reason for his removal from the Police Service and he should, therefore, be returned to duties as soon as possible. The contents of these statements are set out later in discussion of the applicant's account of the events of the 25 April 1998. Analysis of the Applicant's Submission 81 Following the receipt of the applicant's submission, an analyst with the internal affairs unit provided an analysis of the applicant's response. The analysis was a little over one page in length and referred to three issues, those issues being the grounds upon which the Notice was based. The relevant parts of this analysis for present purposes are the observations made under what is described as "Issue 1" and "Other Issues". The section described as "Issue 1" was as follows (original italics): Issue 1. On the 25 April, 1998, you made a false representation to a member of the Police Service that an act had been done, that is, that you had been assaulted, which act as so represented called for an investigation by a member of the Police Service Response: Constable Starr maintains he was the victim of an attack on the morning of 25 April, 1998, an assault which involved him being wounded with "some type of weapon". Constable Starr stands by the veracity of the statement he made on 27 April, 1998. Constable Starr concludes "the very thing the Magistrate found was that the firearm found in the boot of my car was not the one that had been used to injure me". This was not the Magistrate's findings. The court did not reject the case out of hand, but found that a prima facie case existed. The expert ballistic evidence presented to the court was that the air rifle found in the boot of Constable Starr's vehicle was a 4.5mm air rifle. In the opinion of the expert the damage to Constable Starr's police shirt is consistent with having been caused by the impact of a pointed air gun pellet fired for (sic) a .177 calibre (4.5mm) firearm, with the muzzle held in hard contact with the material at the time of discharge. The expert was unable to state whether the rifle taken from Constable Starr's car was the firearm used in the shooting, as the absence of a spent air gun pellet precluded comparative examinations. The Magistrate was not satisfied beyond all reasonable doubt that the air rifle found in the boot of Constable Starr's car was in fact the rifle used in the offence. 82 Under the heading "Other issues", the analysis contained the following: Constable Starr raises, from the time of the shooting incident, that he has been subjected to acts of vandalism, theft, vilification and harassment. This matter is currently being investigated by the Greater Hume Region. To date there is no outcome for this complaint file. Starr is critical of the treatment he received by his Commander, Superintendent Laycock and the investigator Inspector Rees. An Internal Affairs investigation concerning this subject, produced an adverse finding. This investigation concluded that Commander Laycock did breach the Commissioner's Instruction and Circular concerning the questioning of police officers in disciplinary investigations. There were no adverse findings for Inspector Rees. Secondly, the investigation identified various combinations of events which, together with the supported management style of Commander Laycock, may have contributed to, or created an atmosphere of dissension within the Fairfield Local Area Command. It has been recommended that Commander Laycock receive counselling in relation to management related issues, including the ideology of Employee Management and the development of interpersonal skills. The Order and Reasons for Decision 83 Detective Inspector Champion swore two affidavits in these proceedings. In the first of these, dated 15 December 1999, the Inspector identified himself as the officer within the Police Service responsible for the management of the Commissioner's Confidence actions, including the management of the processes that led up to the issuing of the order against the applicant. He gave evidence as to the procedure that was followed during the s181D process and deposed that the material contained in exhibit 1 in the proceedings was the only material that was considered by the Commissioner in coming to a decision to remove the applicant. Exhibit 1 consisted of the following documents: · The profile - setting out the background of the applicant, facts as alleged by the police, action taken by the police service at that point of time and comments by the applicant's Commander to the effect that the applicant had lost the support of his superiors and peers and his nomination under s181D was supported by the Commander. · The notice under s181D(3)(a) - containing the three grounds under which it was alleged that the Commissioner did not have confidence in the applicant's suitability to remain a police officer taking into account the criteria of conduct and integrity. · The applicant's submissions in response to the notice - including the applicant's statement dated 27 April 1998 and a number of character references and certificates. · The analysis of the applicant's submissions in response · The order under s181D 84 Detective Inspector Champion gave evidence that following the receipt and perusal of the profile, the applicant's submissions in response to the notice, and the analysis of the response, the Commissioner came to a decision to remove the applicant following which Detective Inspector Champion drafted the reasons for decision. 85 In preparing the reasons to be given by the Commissioner to the applicant, the process adopted involved Detective Inspector Champion identifying from the material considered by the Commissioner, the various issues that he considered the Commissioner would need to turn his mind to in his statement of reasons. As Detective Inspector Champion stated in cross-examination, the Commissioner would review the Commissioner's confidence submission along with the applicant's response to the Notice and the analysis of the response, then Detective Inspector Champion and the Commissioner would discuss the matters that should be referred to in the reasons. This occurred by way of the Inspector typing a list of matters he thought should be raised with the Commissioner and bringing those matters to the Commissioner's attention when they met. While the issues were being discussed, Detective Inspector Champion made handwritten notes of those matters the Commissioner effectively selected from the typed list which influenced his decision. The process was explained by the Inspector as follows: There were a number of points which were what I considered to be the issues that the Commissioner needed to canvass in his mind over his reasoning process and those points were highlighted and were discussed with the Commissioner and he made comments about those points. 86 The typed document with handwritten notations was tendered in the proceedings and was subject to cross-examination in relation to how the meeting proceeded. The document was never seen by the Commissioner at any stage and was identified as an "agenda" of matters to be discussed during the meeting. The Inspector gave evidence as follows: Q. If I can pause there, under the heading "Commissioner's Case" I through VI, the tick confirms you say that the Commissioner accepted those matters? A. Yes, he said he had turned his mind to those. When I asked him individually he said yes, on his feeling of the material he found that those issues, as far as he was concerned, had been things that had influenced his decision. 87 The document was in the following terms: STARR S181D CONSIDERATION Grounds 1. Made false representation that you had been assaulted 2. Possessed a firearm without a licence 3. Failed to take reasonable precautions for safekeeping firearm The grounds fall into two categories - 1/2, 3. Commissioner's Case i. That the incident occurred ii. Evidence of witness seeing you at the boot with a long object shortly before incident iii. The fact of a firearm in the boot of your vehicle iv. Ballistic evidence that your inquiry is consistent with a firearm of the same type being fired against your stomach v. Clinical pathology evidence that your injury is consistent with a firearm of the same type being fired against your stomach (original emphasis) vi. Clinical pathology evidence that DNA from your shirt and the firearm is consistent on the basis of 2600 to 1 of the population vii. The court outcome in relation to the public mischief was based on the onus of proof of beyond all reasonable doubt. The matter was not dismissed out of hand as not brought in good faith. Starr's case i) Deny the shooting event ii) Claim the case was thrown out iii) Claim discrimination by LAC and investigator iv) Court only imposed the minimum penalty v) blank Interrogation of Starr's case What is the preferred version - - Ballistic and clinical evidence to suggest at a high probability that the incident occurred with the firearm nominated by the police - Evidence of independent witness to factual issues surrounding the case - Negated only by Starr himself - The question of managerial issues by Commander Laycock does not attract or detract from primary issue - The claim of lack of provision of materials is not an issue at this stage - The court did not reject the police case out of hand but on the criminal standard of proof Question of your credibility 88 Handwritten notations were contained throughout the document. Under the heading "Commissioner's Case", the Inspector had ticked items (i) through to (vi) and underlined the word "type" contained in paragraph (iv). Paragraph (vii) under this heading was also ticked with the addition of "2nd issue" also in handwriting. Under the heading "Starr's case", items (i) through to (iv) were ticked, item (v) was left blank, with a hand marked cross through it and the word "prejudged". Other significant markings include a tick next to "Negated only by Starr himself" and, at the bottom of the document, written in the Inspector's handwriting were words to the effect of "tensions surrounding Fairfield at the time post Carty murder" and "Duty of care". 89 The ballistic evidence referred to in the above document was identified during cross-examination as being that of Sergeant Roach and the clinical evidence was the DNA evidence of Mr Weigner. It was Detective Inspector Champion's assessment that the evidence of Sergeant Roach and Mr Weigner suggested a "high probability" that the incident occurred with the firearm nominated by the police, being the weapon found in the applicant's car. Cross-examination of the Detective Inspector as to the Commissioner's use of this "high probability" went as follows: Q. Is that what you say the Commissioner accepted as being an accurate assessment? A. I asked the Commissioner what he thought about the substance of the allegation, taking account if he had read in the exhibit 1 in relation to the evidence of Mr Roach and Mr Weigner. Q. So is the position Commissioner Ryan made his decision to remove Andrew Starr on the basis that the ballistic and clinical evidence suggested a high "probability" that the incident occurred with the firearm nominated by the police? A. That was one of the issues we took into account. 90 The reasons were then drafted and submitted for the Commissioner's final approval. Detective Inspector Champion gave evidence that the final decision to issue a notice and the subsequent decision to issue an order removing an officer from the Police Service, was at all times vested in the Commissioner. At no stage were any of the Commissioner's functions delegated to the Detective Inspector. 91 It is also relevant to set out part of the material under the heading "Decision by Commissioner to remove/not remove" in the standard operating procedure. That material was in the following terms: 8.1 The Commissioner must consider the written response of the officer in making his decision whether to remove or not to remove them from the Police Service. All material relied upon must be noted. The Commissioner is mindful in his consideration for removal that the grounds relied upon are fair, reasonable and just. 8.2 If the Commissioner decides to remove the officer, he calls for a s181D Order to be prepared by the Commander, PAU indicating his reasons for removal. 92 It should be noted that under the Act the Commissioner nor any members of a Commissioner's advisory panel is compellable to give evidence in these proceedings: see s181H(1). Detective Inspector Champion gave evidence as to matters within his knowledge, including those relating to the Commissioner's knowledge and reasoning. 93 It is reasonably clear from the Commissioner's Statement of Reasons that the decision to remove the applicant from the Police Service was made because the Commissioner found the allegations in the first numbered ground of the notice sustained. This was predicated upon the Commissioner's conclusion that the applicant had shot himself using the .177 Gecado single shot air rifle found in the boot of his vehicle. 94 It is tolerably clear from the Commissioner's reasons, the profile and evidence of Detective Inspector Champion, that this conclusion formed the basis for the applicant's removal from the Police Service (and, therefore, the finding that the Commissioner did not have confidence in the applicant for the purpose of s181D of the Act). At no time did the Commissioner resile from this position during these proceedings. This was put beyond doubt by Mr Willis in closing submissions: … it has always been the respondent's case that the applicant wounded himself and that he did so using the firearm that was found in the boot of his vehicle. As attractive as it might be for some reasons in light particularly of Mr Roach's evidence for the respondent to say that he wounded himself and possibly he wounded himself with the firearm found in the boot of his vehicle the way in which the submission was prepared for the Commissioner to consider initially and the way in which the Commissioner appears to have treated that evidence or that submission in formulating his statement of reasons the respondent, in my submission, can't fairly back away from that position now, and that is that it has always been the respondent's case that the firearm found in the boot of the applicant's vehicle was the one that he used to wound himself. 95 Ground 1 of the notice must, in my view, be read in this context. The determination of whether a false representation was made depends upon an examination of whether 'an act' had been carried out by the applicant. Both in the reasons for the decision of the Commissioner and in the case brought before the Commission, the assessment of ground 1 of the notice was predicated on the basis that the applicant wounded himself with the weapon found in the boot of his car. That is the substantive issue to be resolved in this matter. 96 The determination of the application in this matter is not dependant upon a finding as to grounds 2 and 3 of the notice. In the Statement of Reasons, ground 2 was considered to be a subordinate issue. The Commissioner stated that he did not give that matter much weight. Ground 3 received no weight at all in those reasons. This approach was confirmed by both oral and written submissions received from the Commissioner during these proceedings. In particular, in the written submissions filed, it was accepted that had it not been for the views formed by the Commissioner in relation to the first ground, the applicant would not have been removed from the Police Service. 97 Having regard to the Commissioner's Statement of Reasons and, to a lesser extent, the evidence as to the reasoning process adopted by the Commissioner, the Commissioner appears to have relied upon the following facts and circumstances in coming to the conclusion giving rise to the order: 1. there was an air rifle found in the boot of the applicant's car; 2. there was evidence from an independent witness as to the applicant being at the boot of his car with a long object shortly before the incident; 3. there were reports from the Forensic Ballistics Section to the effect that the rifle found in the applicant's car was consistent with the damage to the applicant's police shirt; and 4. DNA samples that were taken from the rifle found in the applicant's car could be matched as the DNA profile could only be found in 0.038% of the population. 98 The submissions and material before the Commissioner in reaching the conclusion were limited to the contents of exhibit 1 referred to above. Failure of the Commissioner to Consider all available Information 99 It is apparent from the foregoing discussion that the Commissioner did not have before him all the material that could have been obtained in deciding whether to issue the order removing the applicant from the Police Service. Mr Docking submitted that the applicant's removal was unfair due to the failure of the Commissioner to inform himself of the available material. It was contended that, as a result, the decision to remove the applicant was founded on a fundamentally inadequate assessment of the available information. Mr Docking placed particular emphasis upon the failure of the Commissioner to obtain, or have regard to, the NSW Police Service brief of evidence and transcripts of the Local Court proceedings involving the applicant. It was submitted that the Commissioner was aware that the brief of evidence and transcripts could have been obtained for the purposes of the s181D process and that the evidence concerning the incident had been tested in those proceedings. However, the Commissioner was satisfied to rely on the profile, the response of the applicant and the analysis of that response when making his decision, none of which contained the brief or transcript. 100 Mr Docking submitted that the applicant's removal was unfair because the issues properly ventilated before the Magistrate in the Local Court were not put before the Commissioner and the Commissioner had no understanding of why the Magistrate dismissed the information of public mischief. It was submitted that the Commissioner did not take into account the deficiencies in the evidence revealed during the Local Court proceedings. It was also contended that the Commissioner did not have before him such information as would properly permit him to come to the conclusion expressed in the statement of reasons as follows: Having regard to the material placed before me, which is opposed only by your denial, I have formed the view that I cannot accept your version of this incident and am of the view that you wounded yourself. 101 Mr Docking concentrated on three major deficiencies in the evidence that were revealed during the Local Court proceedings, but not reflected in the material considered by the Commissioner. These concerned deficiencies said to be revealed in the ballistics evidence of Sergeant Roach, specific difficulties with the DNA evidence linking the firearm to the applicant's police shirt and deficiencies in the evidence of Mr Humphreys in relation to the "long object" the applicant was seen with at the boot of his vehicle. 102 Mr Docking submitted that the decision to remove the applicant was based on the ballistics evidence of Sergeant Roach and DNA evidence suggesting that there was a "high probability" that the applicant shot himself with the weapon contained in the boot of his car. However, it was contended that the evidence of Sergeant Roach before the Local Court was that it was no more than a possibility that the weapon found in the boot of the applicant's car was used to inflict the injury. Sergeant Roach's opinion was always, it was submitted, that he was unable to state whether the weapon in the boot of the applicant's car was the weapon used. Further, it was submitted that Sergeant Roach's evidence revealed that no matches were found between the shirt and the weapon in terms of oils, lubricant, residues, lead, dust and copper. 103 Specifically, in relation to the DNA evidence, it was submitted that both Detective Inspector Champion and the Commissioner were not aware that Sergeant Roach admitted in the Local Court proceedings that the DNA evidence was indeterminate and that the DNA on the rifle was possibly a result of the applicant's towel being wrapped around the weapon. Regardless of this concession, the Commissioner made his decision on the basis that this evidence suggested a "high probability" that this weapon was the one used in the wounding of the applicant. This conclusion was made without any knowledge of the concessions made by Sergeant Roach. 104 Further, it was submitted that the Commissioner did not adequately consider the deficiencies in the evidence of Mr Humphreys in relation to the "long object" the applicant was seen with at the boot of his vehicle. In the submissions of the applicant, Mr Humphreys could have witnessed the applicant removing items from his boot in order to gain access to a water bottle in order to take Panadol tablets. In his evidence before the Local Court, Mr Humphreys put the length of the object at approximately 40cms or two thirds of a metre, whereas the weapon found was actually slightly over 90cms long. It was contended that at no stage during the s181D procedure was there any attempt to clarify what was meant by "long object". 105 The applicant advanced two further submissions alleging the Commissioner did not adequately address the material before him. Firstly, Mr Docking submitted that the Commissioner did not place sufficient, or any, weight on the character evidence presented by the applicant. Those references included a number of citations for good service in the Police Service from colleagues and letters from members of the community testifying to the applicant's good character, dedication to the job and trustworthiness. Secondly, it was submitted that the Commissioner placed disproportionate weight on the fact that no costs order was made in favour of the applicant in relation to the acquittal of the public mischief charge in the Local Court. Mr Docking contended that Detective Inspector Champion had recognised in his evidence in these proceedings that where there are multiple charges and there was a plea of guilty to one of those charges, it is unlikely that there would be a costs order in favour of the defendant. 106 The Commissioner denied there was unfairness in the decision making process adopted under s181D. Mr Willis submitted that the materials considered by the Commissioner in coming to his decision to remove the applicant were sufficient to allow the Commissioner to make an informed decision. Mr Willis indicated that the following information was available to the Commissioner: - At the relevant time and date, whilst on duty, the applicant left the police station and went to his private motor vehicle; - It is alleged that the applicant obtained an air rifle from the boot of his vehicle and wounded himself; - He called for assistance on police radio indicating that he was in foot pursuit of two Asian men, one of whom had shot him; - The applicant was subsequently treated in hospital for a minor stomach wound; - When the applicant's vehicle was searched, an air rifle was located; - An independent witness saw the applicant shortly before the incident at the boot of his car with a "long object"; - Summonses were issued against the applicant for offences of "public mischief", "unlicensed firearm", and "not ensuring safekeeping of a firearm"; - A ballistics expert examined the air rifle and the applicant's damaged shirt and formed the opinion that the damage to the shirt was consistent with having been caused by an impact of a pointed air gun pellet fired from an air rifle of the same calibre as that found in the applicant's vehicle; - The same expert was unable to state that the air rifle taken from the applicant's motor vehicle was the one used to cause his wound; - The Local Court Magistrate dismissed the "public mischief" information because he was not satisfied that the air rifle found in the boot of the applicant's vehicle was the one used; - The Director of Public Prosecutions withdrew the information relating to the safekeeping of the air rifle and the applicant pleaded guilty to the possession of it whilst unlicensed. That matter was dismissed under s556A of the Crimes Act; - An application for costs by the applicant was rejected and the Magistrate made no adverse comments concerning the investigation; - The investigator relied upon the court result in determining whether the issues were "proven from a departmental perspective." 107 The Commissioner was informed that the Magistrate dismissed the charge because he was not satisfied beyond a reasonable doubt that the rifle found in the applicant's car was the weapon used to inflict the wound on the applicant. However, it was submitted that the Commissioner was not bound to follow the Magistrate's decision or reasoning process. In contrast to criminal proceedings, it was contended, the Commissioner's decision was made on the balance of probabilities and not on the criminal standard of proof, namely proof beyond reasonable doubt. The Commissioner thereby applied the civil standard to the question of whether the applicant wounded himself. 108 In relation to the deficiencies in the evidence, Mr Willis submitted that the Commissioner did know that Mr Roach could not state that the air rifle found in the boot of the applicant's vehicle was definitely the one used to wound him. It was submitted that there were no concessions made by Mr Roach in this regard during the Local Court proceedings that were not already known. Mr Willis also defended the use of the evidence in relation to the description of the "long object". He contended that the witness consistently adhered to the same description of the object and it was always clear that the witness was not certain of the nature of the object. The witness qualified the description by saying the object was possibly a coat or a bag. 109 Mr Willis did, however, concede that the material before the Commissioner was inadequate in relation to the DNA evidence. As a result of not bringing certain matters to the Commissioner's attention, the information provided to the Commissioner was misleading as to its nature and effect. In oral submissions at the close of the proceedings, Mr Willis stated: … the respondent has to concede that there was at least misinformation contained within the profile in terms of the effect of the DNA evidence. That may well have resulted from a misunderstanding as to the nature of that evidence. The respondent has to accept that as a procedural problem. And the cause of that would seem to me to be that the transcript wasn't obtained and wasn't placed before the Commissioner or any part of it. Had it been it would be likely, in my submission, that that concession made by Mr Roach as to the DNA evidence would have been apparent and that it's effect would have been understood and accurately conveyed to the respondent to take into account in reaching his decision … The only aspect of the profile in which I would concede is wanting at all is that part of it which deals with the DNA evidence. 110 Further, when the Commission raised with Mr Willis for consideration that one problem in dealing with forensic evidence was that it was, by its nature, often construed as determinative or conclusive evidence which lends itself to few alternative inferences, Mr Willis agreed, stating that generally one can safely treat such evidence in that manner, however: … on this occasion the fact that it was found in the boot wrapped in the towel, Mr Roach properly conceded that the DNA found on the muzzle of the air rifle, as I understand it, could have come from the towel and it isn't determinative of the issue at all. 111 Nevertheless, it was submitted, that the inadequacy of the information provided to the Commissioner concerning the DNA evidence did not entitle the applicant to relief. Rather, Mr Willis submitted that the Commission "should examine the evidence on the substantive issues and take the Commissioner's difficulty with the DNA evidence into account as a factor in determining the ultimate question." 112 Mr Willis further submitted that the applicant, in his response to the notice, made no mention of there being inconsistencies in the evidence. The applicant chose only to make a general denial of the allegation contained in the profile and affirm the truth of the statements he had earlier made. He did not directly contest or clarify any information contained in the profile, which he now contends led to the Commissioner making an uninformed decision. It was submitted that this was particularly the case in relation to the DNA evidence and possibly also that of the "long object". No evidence was advanced by the applicant, it was submitted, as to why the applicant chose to adopt this course of action. 113 Mr Willis did not suggest that there was any onus or requirement on the applicant to provide such information. The Commissioner accepted that the law casts the responsibility upon him to ensure that his decision is informed. However, it was submitted that the failure of the applicant to draw the Commissioner's attention to conflicts in the evidence was a relevant factor in these proceedings. It was contended that the system enshrined in the legislation is an attempt to ensure that there are checks and balances in place and that, should an applicant choose not to avail themselves of these processes and correct any inconsistencies or misconceptions, this is a matter which the Commission should take into account in determining whether the decision was procedurally unfair or made on an uninformed basis. 114 The transcript of proceedings before the Local Court was not obtained by the Police Commissioner or considered by either the Commissioner or the analyst for the purposes of the making a determination under s181D of the Act. The brief of evidence against the applicant containing, amongst other things, the report prepared by Sergeant Roach, was made available to the analyst who prepared the profile, but not to the Commissioner himself. As has been mentioned, the Commissioner relied upon the profile prepared by the analyst. The Commissioner also had before him the applicant's submission, together with the material provided by the applicant with that submission and an analysis of that response prepared by an analyst. The material provided with the applicant's submission included the applicant's initial statement made to police on 27 April 1998, as well as numerous character references and other material concerning the applicant's background, such as commendations and community awards. 115 Further, the substance of any evidence given in the Local Court proceedings were not otherwise communicated to the Commissioner in the profile or other material relied upon by him. In cross-examination on 13 April 2000, Detective Inspector Champion gave the following evidence in relation to the failure of the Commissioner to consider the brief of evidence and transcript: Q. Are you saying that what is within the Commissioner's confidence document adequately informed the Commissioner of conflicts in the evidence as emerged at the Local Court proceedings? A. The submission indicated to the Commissioner that the matter was heard before the Magistrate and the Magistrate was not satisfied beyond reasonable doubt that the case had been made out by the prosecution. The question of what particular issues were ventilated over the number of days as to individual points, no, they were not provided to the Commissioner. 116 The Detective Inspector accepted that the transcript of the Local Court proceedings was relevant information to any decision to remove the applicant. Notwithstanding this concession, the Commissioner apparently regarded it as sufficient to be aware that the Magistrate had dismissed the public mischief charge against the applicant without being aware of the way the evidence unfolded in those proceedings or the reasoning of the Magistrate. No specific reason was given in the case presented for the Commissioner as to why this material was not obtained. The Commissioner could easily have acquired either the transcript or tapes of the Local Court proceedings. 117 I am satisfied that, as a consequence of the failure to obtain and consider the information revealed in the transcript of the Local Court proceedings, the Commissioner was unaware of a number of deficiencies or uncertainties in the evidence in the Local Court proceedings concerning the alleged conduct of the applicant. Of greatest significance is the doubt that was cast during the Local Court proceedings upon some conclusions reached in the report of Sergeant Roach and the DNA evidence linking the firearm with the applicant's police shirt. 118 Sergeant Roach provided two expert reports in these proceedings. The first of these reports, dated 22 July 1998, related to various tests and analyses that were conducted on the applicant's police shirt worn on 25 April 1998. It is this first report which is relevant for consideration at this point. For the purpose of this report, DNA analysis was conducted on the firearm and shirt by Mr Weigner of the Institute of Clinical Pathology and Medical Research and forwarded to Sergeant Roach for inclusion in his report. The reports compiled by Sergeant Roach and Mr Weigner were not part of the material before the Commissioner. They were available to him at the time material was forwarded to him for consideration. The reports were, however, relied upon by the analyst who prepared the profile. 119 In relation to the police shirt, and for the purposes of preparing the first report, Sergeant Roach gave a preliminary review of the shirt using a 20X stereo macroscope which indicated there was some damage to the fibres of the police shirt. This damage was found within a "yellowish coloured circular ring" of approximately 5mm in diameter. The yellow ring was itself found within the centre of an area of the shirt which demonstrated a certain degree of stretching, this stretching forming a larger circular area of approximately 10 - 12mm in diameter. At the time of this preliminary examination Sergeant Roach made notes which were tendered in these proceedings. The shirt was forwarded for further examination. 120 Sergeant Roach then gave a more detailed examination of the shirt at a later time and confirmed in his report the following: · the circular central damaged area showing the yellowish coloured residue and the broken cloth fibre is approximately 5.5mm in diameter · the larger circular pattern surrounding this area (delineated by apparent stretching in the weave of the cloth) measures approximately 15mm in diameter. 121 There was further evidence in the report as to the stretching of the shirt and stretching of the shirt on test firings. However, Sergeant Roach considered that the test firings could not be used in comparison to the amount of stretching on the applicant's shirt, as they were not done with a view to replicating firing into a human. They were carried out using telephone books. Sergeant Roach concluded that the damage to the applicant's shirt was consistent with it having been caused by a pointed air rifle pellet. He could not, however, conclude that the weapon found in the applicant's car was the rifle that caused the damage to the shirt, or the injury to the applicant. In this report, Sergeant Roach indicted he was unable to conclude that the air rifle was the weapon used to inflict the injury as a result of the failure to recover the spent air gun pellet. In order to draw a solid conclusion, it would have been necessary to compare the actual pellet fired with the test fired pellets. 122 Upon the request by Sergeant Roach, Mr Weigner completed a report comparing DNA material collected from the leading surfaces of the muzzle of the firearm found in the applicant's vehicle and from the stain on the applicant's police shirt. He concluded that the DNA material collected from the muzzle of the firearm and the staining on the shirt could have been from the same person. The DNA profile from each of these items was found by Mr Weigner to be in approximately 1 person in 2600 of the general population. The 95% confidence interval covers the range 1 in 2100 to 1 in 3200. 123 It is clear that the analyst relied on the reports of Sergeant Roach and Mr Weigner in preparing the profile and, to that extent, the Commissioner relied on the conclusions drawn in those reports as stated in the profile. The profile contained direct quotations from both the reports and the Commissioner paraphrased these quotations in his statement of reasons. For example, the Commissioner points out in the statement of reasons that: An expert from the Forensic Ballistics Section stated that in his opinion, as a result of tests, that damage to your police shirt was consistent with having been caused by an impact of a pointed air gun pellet fired from a 4.5mm firearm, with the muzzle held in hard contact with the police shirt at the time of discharge. 124 Furthermore, the Commissioner noted that: An expert from the Institute of Pathology and Medical Research examined the 4.5mm firearm and your police shirt and took DNA samples. He concluded that the samples could be matched, as the DNA profile from each of these items is found in 1 in 2600 of the general population, or 0.038%. 125 The evidence referred to earlier in this decision concerning the deliberations of the Commissioner and Detective Inspector Champion supports the submission made by the applicant in these proceedings that the reports of Sergeant Roach and Mr Weigner were relied upon by the Commissioner to draw erroneous conclusions. Looking at the notes that were taken by Detective Inspector Champion into the meeting with the Commissioner, the Commissioner was acting on an understanding that there was a "high probability" that the rifle in the back of the applicant's car was the rifle that was used to cause the injury to the applicant on the basis of the scientific evidence. Detective Inspector Champion was subjected to cross-examination on this question: Q. And two possibilities in the form of ballistic and clinical evidence would never amount to a high probability, would they? A. Well, I believed that the report of the DNA being one in 2,600 in the population, coupled with the fact that the air rifle in the boot of the vehicle, the subsequent staining of the police shirt and those other issues, put it more on the side of a high probability than a possibility. 126 It is evident from the above passage that Detective Inspector Champion was mistaken concerning the basis and strength of the evidence provided by Sergeant Roach. Detective Inspector Champion attributed to Sergeant Roach the belief that it was probable that the air rifle recovered from the applicant's vehicle had been used to inflict the injury. Further, the Detective Inspector was under the impression that DNA from the rifle had been found to be impregnated into the shirt and was not aware that any DNA material may have resulted from contamination by another source. 127 There was cross-examination of Sergeant Roach in the Local Court proceedings as to the evidence which established that the yellowish mark on the applicant's shirt was a combination of oil residue, dirt, dust and similar material, that had built up in the barrel of the weapon used to inflict the injury on Sergeant Starr, whichever weapon that may have been. There were tests conducted on the air rifle found in the applicant's vehicle to determine whether there was any similar residue on the muzzle or on the inside of the bore. Sergeant Roach indicated in cross-examination that the tests did not find sufficient residue on the muzzle or inside the bore of the air rifle to link the weapon with the applicant's shirt. 128 During cross-examination in these proceedings, Sergeant Roach was taken to the evidence he gave in the Local Court relating to whether the air rifle had inflicted the injury: Q. You have never advanced it being higher than a possibility as opposed to a likelihood? A. No. You are absolutely right. I have mixed a couple of concepts there. ... Q. And do you remember today you talked about typically you would find oils? A. Yes. Q. Residue? A. Yes. Q. Lead and perhaps copper, depending on its history? A. Yes. Q. Do you agree Mr Barker examined you about - if not all, perhaps not the copper, but most of those things? A. Most of those things, yes I do and I believe the weapon was analysed or certainly the cloth was analysed for the presence of those residues and I am led to believe that the result of that analysis was that there were not sufficient traces to determine any residues. 129 In relation to the DNA evidence, Sergeant Roach conceded in the Local Court proceedings that the DNA evidence referred to in the report of Mr Weigner was indeterminate. Sergeant Roach's evidence before the Local Court in relation to the reliability of the DNA was clearly that the DNA could have come from a number of sources, one being the towel that the rifle was found wrapped within. In these proceedings, Mr Docking took Sergeant Roach to his evidence before the Local Court as follows: Q. And you know that the results of the DNA testing were indeterminate? A. I believe that was the case. Q. This was something Mr Barker asked you about and you agreed absolutely, yes, the matching of the DNA was capable of being explained by a towel which had been wrapped around the air rifle in Mr Starr's boot? A. Yes. I think I went on to talk about the source of the DNA may not have been blood. It could have been blood, saliva, skin cells or whatever and have cross-pollinated, if I can use that term, from the towel and may not have been the original artefact found on the muzzle of the firearm but from another source. Q. This just collects from-- A. Yes, or sweat and-- Q. How would sweat get in the boot of your car-- A. If it was on a towel or-- Q. Clothes put in the boot of the car? A. That's a possibility. 130 None of the deficiencies in the ballistics and DNA evidence aired in the Local Court were brought to the Commissioner's attention. Two deficiencies are significant. Firstly, in relation to the ballistics evidence, the Commissioner was not made aware of the absence of any residues on the shirt which would have linked it to the air rifle. The Commissioner did accept that Sergeant Roach was unable to conclude that the air rifle found in the applicant's car was the weapon used to inflict the injury. However, the Commissioner believed that Sergeant Roach was unable to come to a firm conclusion only due to the failure to recover the air gun pellet to allow comparison with the test firings. The tests conducted on the applicant's shirt and the absence of any residues would have provided greater depth to the Commissioner's understanding of the evidence. 131 Secondly, and of greater importance, the Commissioner was not aware of the concessions made by Sergeant Roach in relation to the reliability of the DNA evidence. It is evident from the Commissioner's statement of reasons (and to the extent necessary, the profile and the evidence of Inspector Champion) that the Commissioner regarded the DNA evidence of Mr Weigner as strongly indicating that the firearm discovered in the applicant's vehicle had been used to inflict the injury. It can be seen from the above that this belief was unsustainable had the Commissioner considered the concessions made by Sergeant Roach in the Local Court. Mr Willis properly conceded this during submissions. 132 It should be mentioned at this point that I do not, as was urged by Mr Willis, attach any weight to the fact that the applicant, in his response to the notice, did not seek to bring the deficiencies in the Local Court evidence to the attention of the Commissioner. The problem with this approach is that once the Commissioner challenged the veracity of a finding of the Local Court Magistrate on the basis that the criminal standard of proof was there applied, as he did in his statement of reasons, it was incumbent upon him to make proper inquiries to determine how to resolve the matter on some other basis. Furthermore, one of the statements forwarded to the Commissioner by the applicant as part of his response to the s181D notice did refer to the Local Court proceedings. Senior Constable Malovic was present at the Local Court proceedings and indicated in his statement: The ballistics expert was asked by the Magistrate "Was this the firearm used to inflict the wound upon Constable Starr?" The expert said "No". 133 This, if nothing else, should have alerted the Commissioner to the need to conduct further investigations into the veracity of the evidence. The obvious and compelling source of such information was the Local Court transcript. 134 Mr Docking also alleged that the failure to obtain the transcript of the Local Court proceedings resulted in the Commissioner being mislead in relation to the evidence of Mr Humphries to the effect that he saw the applicant at the boot of his vehicle with a "long object". I do not believe that this submission greatly enhances the applicant's case. The Commissioner was not aware of the qualifications made by Mr Humphries to his evidence. However, the Commissioner's reasons do not indicate that the evidence of the "long object" was treated as determinative. The Commissioner considered alternative explanations of that evidence advanced by the applicant and expressly referred to the possibility that Mr Humphries may have seen the applicant with a bottle, coat or some other object. 135 For completeness, I should mention the two other submissions advanced on behalf of the applicant alleging 'procedural unfairness'. Mr Docking argued that the Commissioner failed to adequately consider the character evidence advanced by the applicant and placed too much weight on the fact that no costs order was made in the Local Court proceedings. I also do not regard these submissions as greatly assisting the applicant's case. The character references supplied by the applicant were included in the material put before the Commissioner as part of the applicant's submission. The Commissioner indicated in his reasons that he considered them. The fact that no costs order was made in favour of the applicant in the Local Court was mentioned in the profile supplied to the Commissioner, but not referred to in the Commissioner's reasons. I accept the submission advanced by Mr Willis that there is no evidence that the Commissioner placed any significant weight on this fact. 136 The jurisprudence which has arisen from applications for review made under s181E of the Act and its predecessors indicates that it is appropriate for the Commission, when determining whether the removal of an officer was harsh, unreasonable or unjust, to consider the process adopted by the Commissioner in coming to his decision. In Van Huisstede, there was occasion to consider the relevant authorities dealing with applications to review decisions of the Commissioner to remove police officers in whom he did not have confidence. It was stated, at 104 - 105: … the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: ... it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: ... a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ... That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons. What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 137 I note that no contrary application of principle was argued in this matter. I adopt the above statements of principle in Van Huisstede in this matter. The failure to obtain or consider the transcript of the Local Court proceedings against the applicant constitutes a procedural flaw in the process adopted under s181D. This failure results in misconceptions of the veracity of certain evidence, particularly the ballistics and DNA evidence. Mr Docking urged that this flaw is itself a sufficient basis upon which to determine this case. 138 It was acknowledged in Van Huisstede that the failure of the Commissioner to adhere to the procedures set down by the Act or have regard to all relevant and available information may constitute grounds for concluding that the removal was harsh, unreasonable or unjust. It was said, at 106: Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No 2) or Oswald (No 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. 139 The passages cited from the decision in Van Huisstede indicate that the authorities under the Act have identified two relevant issues that may arise from the method adopted by the Commissioner in removing a police officer. Firstly, the Act sets down, in s181D(3), certain procedures which must be followed by the Commissioner when removing an officer under that section. The Commissioner must give the officer a notice setting out the grounds on which he does not have confidence in the officer, allow the officer to make written submissions and take into account any written submissions made by the officer. Secondly, the cases of Bigg v NSW Police Service (No.2) (1998) 80 IR 434 and Oswald v NSW Police Service (No.2) (1999) 90 IR 42 indicate that, following the decision of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, the discretion conferred on the Commissioner must be exercised in accordance with the rules of reason and justice. Under this ground, it is open to the Commission to assess whether the Commissioner considered all information and materials available both in favour and against the officer. It is this kind of argument which is raised by the applicant in this case. 140 I have formed the view that this case is not one that can be decided solely on the basis of the failure of the Commissioner to have regard to all the available evidence. The approach adopted in Van Huisstede was particular to that case and was not intended to indicate a general approach to deciding matters of this nature. As was pointed out in Van Huisstede, not every fault in the procedure adopted by the Commissioner will require the Commission's intervention. Each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case. I consider that there are features of this case which demand a full examination of the evidence relating to the conduct of the applicant which was relied upon by the Commissioner in removing him from the Police Service, although the deficiencies in the process adopted by the Commissioner will be relevant to the ultimate conclusion as to whether the removal was harsh, unreasonable or unjust. 141 The faults identified in the process adopted by the Commissioner in this case are, in my view, less comprehensive than those present in Van Huisstede. In Van Huisstede, the Commissioner made a finding that he believed certain allegations made against the applicant without having before him any direct evidence of the nature of those allegations. In addition, it was conceded that the Commissioner in that case took into account irrelevant considerations that were never raised with the applicant. In this case, the failure of the Commissioner to obtain the transcript of the Local Court proceedings was unfortunate and resulted in misconceptions about the strength of certain evidence. This is a serious matter and will be taken into account in the final determination of the ultimate question before the Commission. However, this is not a case in which the Commissioner had no evidence before him relating to the alleged conduct of the applicant. There were some considerations in favour of the applicant arising from some aspects of the material before the Commissioner (including those aspects attacked by the applicant as being 'procedurally unfair'). The deficiencies in the approach of the Commissioner were not such as to warrant, as such, a conclusion that the applicant's removal was harsh, unreasonable or unjust. 142 It is also relevant to note that the flaws in the process adopted by the Commissioner in this case relate solely to the adequacy of the evidence considered by the Commissioner. The primary question raised by the applicant is whether the Commissioner's determination that the applicant had shot himself with the air rifle and made a false report was fatally undermined by his failure to obtain available and relevant information, namely, the information contained in the Local Court transcript. Both parties ran their cases by adducing evidence directly relating to the alleged incident involving the applicant. All relevant information concerning the alleged conduct of the applicant was available in these proceedings. Indeed, new evidence was adduced in addition to that which was before the Commissioner or the Local Court. In light of the fact that the flaws in the Commissioner's process concern the veracity of his core factual determinations and that evidence directly relating to those determinations is before me in these proceedings, I consider it is incumbent upon the Commission to go on and consider the substance of those findings. 143 As discussed, it may be appropriate for particular matters to be resolved upon the basis of procedural flaws of the kind characterised in Bigg (No 2) and Oswald (No 2) (see also Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389). However, it should also be noted that in other matters it might be undesirable on the facts and circumstances to strictly distinguish procedural and substantive issues for the purposes of determining whether a removal (or dismissal in ordinary proceedings under Part 6 of Chapter 3 of the IR Act) was harsh, unreasonable or unjust. This accords with what was said by members of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ; at 466 per McHugh and Gummow JJ: see also Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456. Onus of Proof in relation to the Substantive Issue 144 It will be remembered that in Van Huisstede the applicant alleged that his removal was harsh, unreasonable or unjust both by virtue of the process adopted by the Commissioner and as a result of the substance of the decision. In that case, the Commission concluded that the deficiencies in the process adopted by the Commissioner provided a sufficient basis to determine that the applicant's removal from the police force was harsh, unreasonable and unjust. Because of the way the case was argued by the parties in that case the judgment went on the consider the substance of the allegations and a finding was made in favour of the applicant. In so doing, the Commission did not consider it necessary to express an opinion concerning the question of onus. It was stated (at 116): 235. In making these findings, I do not think it necessary to express an opinion concerning whether the Commissioner bears the onus of establishing that an officer removed under s181D is guilty of the misconduct alleged against him or her: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83 - 84 and Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464. In this case, I consider that the veracity of the allegations may be determined without recourse to the question of onus, as I consider that the applicant has made out his case even upon an assumption that he bears the onus and evidentiary burden as to all the relevant matters in dispute (see Bankstown City Council v Paris , at 13). 236. In considering whether the allegations were made out, I must also stress the limited nature of the evidence which was available to the Commission. In particular, the Commission did not have the advantage of observing the complainants giving evidence. The Commission was restricted to considering their evidence (given at the committal hearing and at trial) on its face. The Commission was also not assisted by detailed submissions concerning the factual material. However, it is only possible for the Commission to make findings on the evidence before it. On the basis of that evidence, I have formed the view that I am satisfied that the applicant has established, upon the balance of probabilities, he did not engage in the conduct which he was alleged to have undertaken in the grounds specified in the notice (or more generally to engage in the conduct alleged in the Commissioner's reasons for decision). Submissions as to Onus and Evidentiary Burden 145 Mr Docking submitted that the ordinary principles relating to burden where serious allegations of misconduct are made should apply. That is, where an employer alleges misconduct then, it was contended, the employer bears the burden of showing that the misconduct occurred. This was said to be supported by the authorities of the Commission (and its predecessor) in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 and Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70, where it was accepted that upon such allegations the burden shifts to the respondent employer. 146 The applicant contended that the Commissioner had accepted an evidentiary burden in his submissions in this matter. It was submitted that this was so due to the references in the submissions of the Commissioner to the "respondent's evidentiary burden". For example, the written submissions filed on behalf of the Commissioner stated: "The respondent has discharged his evidentiary burden of establishing that the applicant committed the conduct relied upon in ground 1." The applicant contended that the respondent has not discharged this burden. 147 The applicant further submitted that the approach in Briginshaw v Briginshaw (1938) 60 CLR 336 should be applied to the determination of the application in this matter. In particular, the applicant submitted that the evidence could not sustain the necessary satisfaction of the Commission as it was characterised by "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). This submission was emphasised in relation to the evidence of Mr Roach which the applicant asserted was characterised by inexactness and uncertainty and, as such, it was not possible for the Commission to be persuaded by it on the basis of the Briginshaw standard. 148 In reply, Mr Willis contended that the "admission" as to having an evidentiary burden was put on the basis of the decision of the Commission in Van Huisstede, where the issues of onus and evidentiary burden were, it was submitted, left open. The Commissioner did not accept any evidentiary burden upon him to establish that misconduct had, in fact, occurred. Rather, it was submitted that, even in the event it was considered that he did bear the burden, he had discharged it. The submission was put in those terms to cover a conclusion either way on the question of onus. 149 However, in oral submissions, Mr Willis appeared to accept that the Commissioner did bear a burden of making out the contention that the applicant shot himself in the manner claimed. Specifically, Mr Willis stated that even though the Commission found it unnecessary to decide the matter in Van Huisstede, the guidance given in that case meant that the Commissioner must accept an evidentiary burden. 150 Despite this concession by counsel for the Commissioner, it may be appropriate to give greater consideration to the question of onus and evidentiary burdens in the present case. The applicant relied on authorities decided pursuant to applications brought under the unfair dismissal provisions of the IR Act and their predecessors. It is proposed to first outline the approach adopted in those cases. However, an application brought under s181E is governed by the legislative context in which that provision appears. Sections 181F and 181G, in particular, stipulate the method to be adopted by the Commission when reviewing a decision of the Commissioner to remove a police officer. 151 It is pertinent to repeat the provisions of the Act governing the review to be conducted by the Commission. Section 181E of that Act, it will be remembered, gives a removed officer the right to apply to the Commission for a review of the order on the grounds that the removal is harsh, unreasonable or unjust. Section 181F sets out the procedure of the Commission upon review. The Commission must, under s181F(1) consider first the Commissioner's reasons. The Commission shall thereafter consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and then the case presented by the Commissioner in reply. Additionally, s181F(2) dictates that the applicant has, at all times, the burden of establishing that the removal was harsh, unreasonable or unjust. 152 It will be necessary to examine these provisions in order to discuss whether a burden is placed on the Commissioner or the applicant in relation to factual issues arising in proceedings brought under the Act. Incidence of Onus in Unfair Dismissal Cases under Part 6 153 Having regard to the statutory framework and the submissions advanced by the parties, a useful starting point is a consideration of the approach to the question of onus that has been adopted in unfair dismissal applications generally. An employee claiming to have been unfairly dismissed bears the onus of establishing that his or her case is a proper one for the Commission's intervention: see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279. The burden lies with the employee to provide evidence to prove to the Commission that the dismissal was harsh, unjust or unreasonable. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct or incompetence it will be for the employer to establish that the alleged misconduct or incompetence in fact occurred and warranted dismissal. 154 In Pastrycooks, for example, an employee was summarily dismissed for an alleged failure to follow what the employer believed to be a lawful order. In the course of dealing with the question of onus Hungerford J stated (at 83 - 84): It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abbattoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW 547 at 552, 553; North Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1975) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: "Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved." The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submissions on onus, Mr Walton referred to the judgment of Dey J in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355 in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. 155 Some questions have been raised as to the notion of a shifting onus in cases of alleged misconduct. In Bigg (No 2), the Full Bench discussed the decision in Pastrycooks where Hungerford J referred to a shift in the evidentiary burden. The Full Bench said (at 455): The concept of "a shifting onus" has only recently been discussed in industrial decisions and more often in submissions, particularly where parties wish to obtain a spurious lexicographical advantage. Such a term can seldom be right and is always confusing. In the common law courts the onus is usually readily identified as falling upon the party who moves the court for an order. In the course of the hearing the onus rarely changes and then only where statutory intervention has altered common law concepts. What frequently occurs, however, is that during the course of a hearing, the evidentiary burden shifts from one party to another. 156 Whether the terminology of an "evidentiary burden" in Bigg (No 2) or of a "legal burden in an evidentiary sense" in Pastrycooks was preferred, it appears that essentially the same conclusion may be reached, at least in the procedural sense of resolving issues as to evidence as may arise in unfair dismissal proceedings where the employer asserts that an employee has engaged in misconduct. Where an allegation of misconduct is raised, the employer must prove the misconduct occurred: see also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 303 - 304; Franklins Ltd v Mervyn Webb (1997) 72 IR 257 at 261 and Wang v Crestell Industries at 463 - 464. A similar approach to the question of onus in dismissal cases has been adopted in the federal jurisdiction: see, for example, North v Television Corporation (1976) 11 ALR 599 at 602 - 603 and Miller v Australian Industrial Relations Commission (2001) 104 IR 415 at 429. 157 The question of onus in unfair dismissal matters was further considered in Wang v Crestell Industries, where the Full Bench considered an appeal by three employees who had been summarily dismissed by the respondent who alleged the employees had been stealing materials from the workplace. At first instance, Commissioner Connor considered the decision of Hungerford J in Pastrycooks applied and the employer bore the burden of establishing the misconduct. The Commissioner found that the employees had engaged in the criminal activity of stealing Crestell's products to use in a business operated from one of the employee's homes. As a result, their dismissal was justified. 158 On appeal, the employees claimed this finding was not supported by the evidence. In upholding Commissioner Connor's decision and considering the principles relating to onus and standard of proof in such matters, the Full Bench stated (at 463 - 464): The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employee's Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. 159 Thus, the relevant standard to be satisfied in relation to allegations of misconduct against employees is on the balance of probabilities. However, that standard must be satisfied to a degree which is appropriate to the gravity of the facts to be proved. Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that a finding which may put a career in jeopardy must be made with regard to such considerations of the gravity of the facts in issue. The most often cited case for such a proposition is Briginshaw v Briginshaw, which was again confirmed recently by this Commission in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. In that case, the Full Bench of the Commission noted that the principle in Briginshaw v Briginshaw is now embodied in s140 of the Evidence Act 1995, which provides: 140. Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 160 The Full Bench pointed out that the principle in Briginshaw v Briginshaw had been applied in unfair dismissal cases when considering allegations against an employee of serious misconduct involving criminal conduct. However, the Full Bench noted (at 7): Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings ), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. 161 If an employer cannot prove to the requisite standard the misconduct or other acts said to justify dismissal then it will usually be found that the dismissal was harsh, unreasonable or unjust, although the relief granted in any particular matter will depend upon the various discretionary considerations: see, for example, the approach adopted in Pastrycooks at 98 - 99 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [36]. Burden in Proceedings concerning the Removal of a Police Officer 162 The incidence of legal or evidentiary burdens may be altered by statute. Legislation may dictate expressly that a certain party bears the onus of proving a particular fact or a burden may be established by necessary implication from the legislative framework. An example of the former type of provision may be found in s95 of the IR Act which provides that, in proceedings for the reinstatement of an injured employee, it is presumed that the employee was dismissed by reason of the injury. It is for the employer to show that the injury was not a "substantial and operative cause of the dismissal of the employee." Examples of burdens shifting as a result of necessary implications from statutory provisions may be found in Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 and Darling Island Stevedoring & Lighterage Company Limited v Jacobsen (1945) 70 CLR 635. The latter case was discussed by Hungerford J in Pastrycooks. 163 A number of decisions have had occasion to consider the question of onus in the case of applications for the review of a decision of the Commissioner to remove a police officer under previous provisions of the Act. The decision of the Full Bench in Bigg (No 2) considered the reinstatement of an officer who had been removed pursuant to s181B of the Act (now repealed). Section 181B was introduced into the Act as an immediate measure to combat corruption in the Police Service exposed by the Police Royal Commission. It allowed the Commissioner to order an officer's removal if, on the basis of information arising from the Police Royal Commission, he had formed the opinion that the officer had engaged in corrupt conduct and was no longer fit and proper to hold a position in the Police Service. 164 Mr Bigg was removed from the Police Service by the Acting Commissioner pursuant to s181B after evidence given in the Royal Commission alleged that he had received corrupt payments and engaged in other criminal activity. At first instance, Fisher P in Bigg v NSW Police Service (1997) 72 IR 330 considered that Mr Bigg carried the onus of securing the Commission's intervention and declined to grant reinstatement. 165 Mr Bigg appealed to the Full Bench of the Commission. In the course of its judgment, the Full Bench conducted an extensive inquiry into the nature of the legislative scheme. In particular, the Full Bench noted the "tension" between the radical provisions for police removal and the unfair dismissal provisions of the Industrial Relations Act 1991. It was noted (at 449) that s246 of the Industrial Relations Act 1991 proceeded upon review with the notion that such proceedings generally required "at least credibility and belief of the detrimental information on which an employer acted in determining to dismiss to be established". However, s181B of the Police Service Act enabled the removal of an officer on the basis of an "opinion" formed by the Commissioner, arising from information over which the officer had no control. 166 The question of onus then arose, both in relation to the procedure and evidence supporting the allegations against Mr Bigg. The Full Bench rejected the argument that the approach in Wang v Crestell Industries should apply and concluded that the Commissioner did not bear the onus of proving that the conduct had occurred. The Full Bench noted that the decision to remove Mr Bigg was made following the formation of an opinion by the Commissioner under s181B of the Act. The question was not whether the employer had fairly, or properly, exercised a contractual right of summary dismissal. At 456, the Full Bench said: Given the circumstances in which the legislature has provided for that opinion to be formed under s181B of the Police Service Act , namely coerced and untested evidence before the Police Royal Commission, there cannot be an onus on the Acting Commissioner in any later reinstatement proceedings before the Industrial Relations Commission to establish that any corrupt or criminal conduct in fact occurred. To adopt that approach would require this Commission to ignore the statutory scheme, a new scheme not previously considered in Wang or cases there referred to. In our view, were such an approach adopted, the result would make the s181B process almost nugatory. The result would be that an opinion formed by the Police Commissioner on the basis of information before the Police Royal Commission that a police officer had engaged in corrupt or criminal conduct would permit dismissal, but if acted upon, unless the information could later be proved by the Police Commissioner to the necessary civil standard if challenged, reinstatement before the Industrial Relations Commission must flow. It would seem s181B provided a fast track for dismissal and an equally fast track for reinstatement. We reject a construction of the section which would have that result. 167 The Full Bench rejected the notion of the Commissioner having an onus of proof on the basis that it would not give effect to a statutory scheme which allowed the Commissioner to remove an officer on the basis of information revealed before the Police Royal Commission. 168 However, the Full Bench did not consider that this completely dealt with the question of proof. The Full Bench stated that the extraordinary powers and authorities conferred by the Act required a careful and punctilious regard to correct procedure. As discussed earlier in the judgment, the Full Bench concluded that there was an evidentiary burden on the Commissioner (once the applicant has produced evidence to suggest otherwise) to show that the decision to remove the officer was made in compliance with the procedures laid down in the Act and to demonstrate that he had met the obligation to act in a manner which allowed no allegation of an uninformed decision. It was on this basis that the Full Bench found in favour of Mr Bigg. The Commissioner failed to discharge his evidentiary burden to show that he had complied with the procedure prescribed by s181B. This approach was followed by the Full Bench in Oswald (No 2) at 57. 169 In Van Huisstede, the Commission considered that the Act in its present form also established that once an applicant raised sufficient doubt as to whether procedural requirements for removal had been met by the Commissioner, the Commissioner then bore the evidential burden of establishing that those requirements were satisfied. It was stated (at 107): This view is supported both by the Full Bench in Oswald (No. 2) and by the structure of the review established by s181F. Section 181F requires that the Commission consider the reasons of the Commissioner, then the case put by the applicant and finally any case presented by the Commissioner in response. If, in the case brought by the applicant, doubt is raised as to compliance with the procedural requirements of the Act, that matter would then need to be answered in the case brought by the Commissioner. 170 Mr Willis concluded, from the approach in Van Huisstede, that there was a burden on the Commissioner in this case to demonstrate that alleged misconduct had occurred. What remains for discussion is whether this concession was properly made. The Evidentiary Burden in this Case 171 The concession made by Mr Willis was, in my view, sound having regard to the circumstances of this case. The question of onus in this matter may be resolved in line with the approach adopted in Bigg (No 2) and Oswald (No 2). Those cases, it will be remembered, were decided on the basis that once the applicant had produced evidence casting sufficient doubt on whether the Commissioner had adhered to the procedures set down by the Act or raised a substantial allegation of an uninformed decision, the burden passed to the Commissioner to demonstrate that the decision was properly made. It was said in Bigg (No 2) (at 458) that if the material provided in the reinstatement case by the applicant called for rebuttal by the Commissioner, then "an evidentiary burden shifted to the … Commissioner to demonstrate that the requirements had been observed." In Van Huisstede, it was found (at 107) that the same approach is appropriate under the present provisions of the Act, notwithstanding the presence of s181F(2). There does not appear to have been a provision equivalent to s181F(2) in the legislation considered in Bigg (No 2) and Oswald (No 2). 172 In Bigg (No 2) and Oswald (No 2), the consideration focussed on whether the Commissioner had discharged the evidentiary burden of establishing compliance with the requirements of the Act or that the decision was properly informed by the available evidence. As has been discussed, in this case also the Commissioner failed to consider available evidence that would have assisted the applicant's case, namely, the transcript of the Local Court proceedings. The Commissioner was, as a result, not aware of deficiencies in the evidence he relied upon when deciding to remove the applicant from the Police Service. Mr Willis conceded that the Commissioner's decision was misinformed, at least in relation to the nature and strength of the DNA evidence. On the approach adopted in the earlier cases, it then falls for the Commissioner to establish that the decision to remove the applicant was properly made. 173 Having reached this point in the consideration, it is difficult to avoid the conclusion that the Commissioner bore the evidentiary burden as to both the procedural and substantive issues. The essential approach of the Commissioner in this matter was to make a finding, on the basis of the evidence before him, that the allegations against the applicant were made out and to conclude that the Local Court finding was insufficient to vindicate the applicant. It was found earlier in this decision that the Commissioner's decision was founded on an inadequate assessment of the available evidence. Once it has been demonstrated that the Commissioner's reasoning process was attended by doubt of the kind referred to in Bigg (No 2) and Oswald (No 2), it must fall to the Commissioner to demonstrate that the misinformed decision could be otherwise justified, notwithstanding his failure to consider all the evidence. Because the defect in the Commissioner's decision-making process goes to the validity of his factual findings, the burden extends, in my view, to establishing an evidentiary basis for those findings. 174 In this case, the Commissioner, quite properly, responded to the applicant's case by seeking to introduce evidence establishing that the applicant was guilty of the conduct alleged. Mr Willis contended that the removal was justified, notwithstanding the failure to consider the Local Court transcript, having regard to the evidence introduced in these proceedings concerning the conduct of the applicant. It was the Commissioner's case that the applicant used the air rifle found in the boot of his car to wound himself and hence made a false report. The Commissioner sought to introduce evidence to demonstrate that this was the case. As has been mentioned, Mr Willis submitted that the Commissioner had discharged "his evidentiary burden" of establishing that the applicant committed the conduct relied upon by the Commissioner in making his decision. 175 The structure of the review to be conducted by the Commission dictated by s181F(1) supports the conclusion that the Commissioner may bear some evidentiary burden at this point. That section requires the Commission to consider the Commissioner's reasons for removing the applicant, then the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and finally the case presented by the Commissioner in response. In Newton, the Full Bench emphasised the importance of adhering to the procedure laid down in s181F(1). The Full Bench stated (at 75): Section 181F(1) is prescriptive as to the matters which the Commission must consider when entertaining an application brought under s181Eof the Police Service Act. While s181F requires the Commission, firstly, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. 176 If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner (in the sense referred to in Bigg (No 2) and Oswald (No 2)). 177 I do not consider that this approach is inconsistent with what was said in Bigg (No 2). In that case, the Full Bench determined that the provisions of the Act as they then existed precluded the conclusion that the Commissioner must prove any alleged misconduct. The Full Bench emphasised (at 456) that the Act provided that the Commissioner may form an opinion that an officer had engaged in corrupt or criminal conduct based on coerced and untested evidence before the Police Royal Commission. The Commissioner had no basis upon which to assess whether an officer had engaged in such conduct except the proceedings of the Royal Commission. As such, there could be no onus on the Commissioner to prove that the conduct, in fact, occurred. To require the Commissioner to prove the allegations in subsequent reinstatement proceedings would, in the view of the Full Bench, render s181B "almost nugatory". 178 I do not consider the same can be said of the current provisions of the Act. Two notable distinctions may be observed. Firstly, as discussed, s181F(1) dictates the course of the review to be conducted by the Commission. Relevantly, the Commission is required to consider the case presented by the applicant and any case presented by the Commissioner in answer. No similar provision was in place in the legislation considered in Bigg (No 2). Secondly, s181D requires the Commissioner to assess the suitability of an officer to continue in the Police Service having regard to the officer's competence, integrity, performance or conduct. It is not open to the Commissioner to determine that he does not have confidence in an officer without foundation in one of these attributes: see Van Huisstede at 110. Ordinarily, the Commissioner will make his decision on the basis of findings against the officer. The Commissioner is not, as he was under the former s181B, restricted to basing his finding on the coerced and untested evidence before the Police Royal Commission. He is under an obligation to have regard to evidence which is before him or, at least, readily available. 179 The fact that the decision to remove an officer is based on the Commissioner's confidence does not, in my view, alter the conclusion reached above. The Act does not permit the Commissioner to determine that he does not have confidence in the suitability of an officer to continue as a police officer in a manner that is arbitrary or capricious: see Bigg (No 2) at 457. As mentioned, the finding on confidence must relate to the officer's competence, integrity, performance or conduct. Where, as in this case, the Commissioner bases his confidence decision on express findings of fact, it is not, in my view, inconsistent with the provisions of the Act for the Commissioner to be obliged to produce evidence establishing those allegations in subsequent proceedings. It does not render s181D inoperative to require the Commissioner, once sufficient doubt has been cast on the fairness of the decision, to provide evidence that would vindicate his factual findings. 180 Nor do I consider that s181F(2) precludes the conclusion that the Commissioner may be required to produce evidence vindicating his factual findings. This provision may, in my view, be construed as merely stating the general proposition that the applicant must establish his or her case. This proposition does not preclude the possibility that an evidentiary burden may shift during the proceedings. As was said in Bigg (No 2) (at 455), "in the course of the hearing the onus rarely changes and then only where statutory intervention has altered common law concepts. What frequently occurs, however, is that during the course of a hearing, the evidentiary burden shifts from one party to another." Indeed, the structure of the review contained in s181F(1) must involve some shift in the burdens depending on the portion of the case being considered by the Commission. 181 This discussion is, in my view, sufficient to resolve the question of an evidentiary burden in this case, namely, that the Commissioner bears the onus of demonstrating that the applicant had wounded himself with his own weapon (located in the boot of his car). That is the essence of the allegation specified in ground 1 of the notice. Nothing in this conclusion affects the requirement that the applicant make out a case to warrant the intervention of the Commission in ordering reinstatement. I note that part of the case brought by the applicant in that respect concerned his contention as to the discharge of a metallic object from his body on 19 November 1999. 182 I do not think it is necessary to determine whether, in proceedings brought under s181E, the Commissioner would generally be under any obligation to establish the veracity of allegations of misconduct upon which the order under s181D is based. Extensive submissions were not made in relation to this question, nor was the Commission's attention drawn to the second reading speeches for the relevant provisions of the Act or other supporting materials. This question must depend on the construction of the relevant provisions of the Act which must, of course, be resolved in line with established principles of statutory construction: see, for example, Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 445 - 446 and Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 99 IR 29 at 46 - 48. 183 I do note, however, that such a conclusion (namely, that the Commissioner may bear some burden in relation to allegations of misconduct) is supported by analogy to the approach adopted in unfair dismissal proceedings under the IR Act. There are a number of similarities between an application under s181E and an application brought by an employee under s84 of the IR Act alleging unfair dismissal. The central determination in both cases is whether the dismissal or removal was harsh, unreasonable or unjust. Furthermore, s181G provides that the provisions of the IR Act apply to a review undertaken pursuant to s181E in the same way as they apply to an unfair dismissal application under Part 6 of Chapter 3 of that Act, subject to the provisions of the Act. Unless s181F excludes the principles earlier stated which were derived from unfair dismissal cases, the same approach should be adopted: see Van Huisstede at 108. These factors support a similar approach being adopted in proceedings brought under s181E. 184 The applicant submitted that the Briginshaw standard should be applied in these proceedings to the assessment of any finding of alleged serious misconduct or criminal behaviour: see Wang v Crestell Industries at 463 - 464. The Commissioner did not address this question and, as such, I will approach this matter in the manner set out in Briginshaw. However, a further consideration may arise in the future as to whether the assessment of factual findings made by the Commissioner is affected by the wording of s181D of the Act. Section 140 of the Evidence Act provides that the gravity of the matters alleged is only one matter to be taken into account when considering whether the necessary standard of proof has been achieved. A court must also consider the nature of the cause of action or defence and the subject matter of the proceedings: see s140(2)(a) and (b) of the Evidence Act. The Commissioner is required to form an opinion as to whether he has confidence in the suitability of an officer to continue as a police officer. The fact that the removal is based on the Commissioner's confidence may have an influence on the standard of proof the Commission would expect to be satisfied. The Substance of the Issue Submissions as to the Substantive Issue 185 As I have mentioned, Mr Docking submitted that it is only if the applicant fails on the procedural unfairness question does the issue of substantive unfairness need to be decided. However, extensive evidence was presented and submissions made by the applicant and the Commissioner in relation to the alleged conduct of the applicant on the morning of 25 April 1998. Ground 1 of the s181D notice alleged that the applicant made a false representation that he had been assaulted. As discussed earlier in this decision, the Commissioner's decision and the Commissioner's case in these proceedings were both predicated on the scenario that the applicant had wounded himself with the firearm found in the boot of his car. As a result, the substantive issue was said to rest on whether the applicant did, in fact, shoot himself with the firearm found in the boot of his car. The Commissioner conceded that if it had not been for this finding the applicant would not have been removed from the police force. 186 The applicant submitted that the Commissioner had not satisfied his evidentiary burden in proving that the applicant had wounded himself in the manner alleged. It was argued by Mr Docking that the scenario presented by the Commissioner was improbable and implausible. The Commissioner's version of events meant that the applicant must have shot himself, wrapped the rifle in the towel, placed it back in his boot, closed his boot and moved approximately 85 metres whilst in pain and shock to the position where he was found. It was noted that the applicant would have been taking a risk in committing such an act with people in the vicinity. Further, it was submitted that the Commissioner produced no evidence to show if it was physically possible for a person to move in that state. 187 Mr Docking submitted that the applicant's account of the events was corroborated by a number of witnesses including himself and other officers. In written submissions the following points were put in support of the applicant's contention that the evidence could not sustain a conclusion that the applicant wounded himself: (a) the applicant saw two males coming over the wall and chased them. This is corroborated by the applicant and two other witnesses, Mr Butler, who saw at least one Asian male present in the area, and Senior Constable Donaldson of the Dog Squad who saw people in the vicinity. (b) in a matter of seconds the applicant spun one of the males around and felt a pain and a pop noise in his stomach. When he collapsed on the ground he was in a state of shock. Officers who found him that way and gave evidence to that effect. (c) there was much confusion over the police radio, it was hectic and there are contradictory versions about what the applicant said after he was found on the ground by the other officers. This is evidenced by a number of witnesses present and the transcript of the VKG Tape. 188 The Commission's attention was also drawn to the failure of the Commissioner to suggest any motive by the applicant to wound himself with the air rifle and make a false report. It was submitted that motive is a matter that is often looked at and the absence of a motive favours the applicant. Mr Docking submitted that the absence of any suggestion of motive is particularly important given the applicant's favourable character references and his good service record. Such evidence means that an inference of dishonesty should be less readily inferred. In support of this, Mr Docking drew attention to SDA NSW Branch v Jewel Food Stores (1988) 22 IR 1 at 2, where it was said that character evidence was relevant to deciding whether the applicant had acted dishonestly. 189 Mr Willis submitted that the Commissioner had discharged any evidentiary burden to prove that the applicant wounded himself with the firearm found in the boot of his car. According to Mr Willis, the circumstantial evidence was ample to satisfy the Commission that the applicant wounded himself. In written submissions, the Commissioner identified the following evidence which was said to support this conclusion: (a) the damage to the applicant's shirt was consistent with having been caused by a firearm of that type; (b) the "halo" marking on the shirt was consistent with having been caused by the discharge of a firearm of that type; (c) the applicant just happened to have a firearm of that type in the boot of his vehicle which was therefore accessible to him at the relevant time; (d) the applicant was seen at the boot of his vehicle by Mr Humphreys with what he described as a long object which might have been a coat or a bag. The respondent contends that it might also have been the firearm wrapped in a towel; (e) the weapon used to injure the applicant did not cause a penetrating wound. The firearm found in the boot of the applicant's vehicle, when held against the abdomen outside a layer of clothing, would not penetrate the skin. 190 In deciding whether or not to accept the applicant's version of events, Mr Willis submitted that the applicant's credit was affected by a number of inconsistencies in his story. It was submitted that the inconsistencies arose because the applicant was being untruthful. Three major inconsistencies were said to exist between the applicant's account and other evidence. Firstly, it was submitted that Sergeant O'Keefe contradicted the applicant's statement that he requested Panadol. Secondly, it was submitted that the applicant's account conflicted with the evidence of Mr Humphreys that he saw the applicant at the boot of his car with a "long object". Finally, it was submitted that inconsistencies existed between the applicant's claim not to have seen a weapon and the evidence of other witnesses, including Sergeant O'Keefe, Constable Stroud and Constable Deeley, that the applicant had described a weapon. 191 As to the issue of motive, Mr Willis submitted that it would only be speculative to suggest one. Put simply, the applicant's behaviour is disturbing and does not justify him remaining a police officer, regardless of the reason behind the conduct. 192 In response to issues raised by Mr Willis, Mr Docking submitted that the inconsistencies in accounts of the other police officers could not be used as evidence of lying or dishonesty on the part of the applicant. The accounts of the other officers were not entirely consistent with each other. Any inconsistencies with the applicant's story could be explained by the confusion of the applicant and chaotic nature of the scene. There was no evidence, it was contended, to show that there were "incomprehensibly contradictory" accounts of what was said by the various witnesses. 193 In relation to whether the applicant had a conversation with Sergeant O'Keefe about Panadol, Mr Docking submitted that the end result of Sergeant O'Keefe's evidence was that he could not remember the conversation. When a witness who has no recollection was placed alongside a witness who does, the witness who does recall the events should be preferred. Further, it was put that if it was considered that the applicant was lying, it was not a matter which would significantly affect his credibility. The Evidence Relating to Events of 25 April 1998 194 The evidence in these proceedings comes from a variety of sources. Evidence was adduced directly in these proceedings from the applicant and a range of other witnesses. Relevant parts of the transcript of the Local Court proceedings were also tendered. Expert and medical reports were also commissioned and tendered and experts and medical practitioners were called to give evidence. It is proposed here to examine some critical aspects of the evidence. This examination is not intended to be an exhaustive summary of the entirety of the evidence in the proceedings, but to crystallise the evidentiary issues, as well as give reasons in relation to rulings made on objections to particular evidence. The Applicant's Account of the Events of 25 April 1998 195 In his written statement to the Commission, the applicant gave an account of the events of 25 April 1998 by reference to his statement made on 27 April 1998. The events that initially took place during the applicant's shift on the evening of 24 April and morning of 25 April have been set out earlier in the decision. The events now in issue occurred after the applicant returned to the Fairfield Police Station. The applicant's statement of 27 April 1998 identified those events as follows: 14. When we arrived at the station we drove the truck into the driveway, removed the prisoner from the back of the truck and he was placed into the dock of the chargeroom. I gave his details to Jim Deeley, the Custody Officer. He was pat searched, placed in the dock. Rob went into the station area, Jim was still on the computer, I walked into the station and I said to Rob will you be right with him for a minute, I just want to duck to my car. Rob said sure, no worries. I returned to the truck, got the keys out of my bag in the truck, I walked back through the station, out into Smart Street, left into Spencer Street to my car. 15. I went to the left hand passenger door and took two Panadol out of my glovebox and then I went to my boot and got a bottle of fountain water. I took the Panadol, I threw the water bottle onto my back seat. Whilst I was taking my tablets an old digger walked past and I had a conversation with him. We were talking about the old days. He was telling me when he was a kid and you did something wrong the coppers would give you a kick in the bum. He said the laws are too soft today, younger people had no respect and that the coppers do a good job. This same man walked past me later that morning when I was on the ground and I saw Jim Deeley speaking to him and I'm sure Jim got his name. 16. The digger walked off towards Smart Street and I shut my car and I walked back across the road diagonally towards a group of shops and I heard a noise to my right and rear. I looked over my shoulder looking towards the court house. I had nearly reached the footpath on the Western side of Spencer Street when I saw a male climbing over a fence. I'm not sure if it was a brick fence or a cement rendered wall. 17. I stopped and watched. I then saw another male come over the same wall. It was a wall between the shops and the courthouse. I saw a white coloured Ford which I believed to be a court house car parked in a driveway in a 90 degree angle to Spencer Street. They both got over the fence when the first male just looked at me. He said something in a foreign language and they both bolted towards Court Road. I chased them. I yelled out, "Stop." I called on the police portable radio, "Fairfield 17, foot pursuit, Spencer Street." 18. I continued running after them. When I got to Court Road I grabbed the second bloke, who was the male I didn't' see climbing over the fence. I grabbed him on the right shoulder. The other bloke kept running. He spun around, facing me. I didn't see anything. I didn't see him pull anything out. I just felt something pressed against my stomach. It felt like a finger but it was hard. I then heard a popping noise. I let go of my grip, I continued to chase him. I only took a couple of steps when I felt pain in my stomach and I think I got as far as the service station on the corner of Court Road and Alan Street. I then realised that something was wrong. I had my hand where the pain was and when I looked down I could see drops of blood on my shirt. 19. I called something on the radio but I can't remember what it was however I do remember I gave the description of a male, Asian, wearing dark coloured clothing whilst I was at the service station. The next thing I know is Rob Albert, Sergeant O'Keefe and Rebecca Stroud were around me. Sergeant O'Keefe had his jacket under my head and Rebecca had hold of my hand. I remember Sergeant O'Keefe was talking on the police radio. There was a number of police but I remember a man in a suit, I don't' know who he was, I don't even know if he was a cop. He had a note pad and a pen and he was asking me question. This person was wearing glasses. I have since seen a photo of this person in the Telegraph. I now know he is a Detective Sergeant from the Homicide Squad. 20. It seemed like ages but when the Ambulance arrived they treated me. Someone removed my gun and then my gun belt. I don't know who it was. I was then conveyed to Liverpool Hospital. 21. I remained in the Liverpool Hospital until Monday 27th of April, 1998 when I was released and I was driven to my parents address where I have made this statement. Earlier today the Surgeon that operated on me, I'm not sure of his name, came and saw me and said that I've found nothing in your wound, it could have been a crude or home made weapon. There was a doctor that spoke to me on the Sunday 26th of April who may have been Indian or Asian and this doctor was the doctor that told me he wanted me to stay a few days. I still have the hospital tag on my wrist. It had the name Professor S.DEANE but I was never introduced to a Professor Deane. 22. I would describe the person that struggled with earlier that day as being male, Asian, late teens to early twenties, 5 foot 7 to 8 tall, thin build, he had jet black hair which was straight, parted in the middle and shoulder lenght (sic) , similar to a girl's hairstyle. He was wearing a black tracksuit with a sports logo. It had a white stripe, either two or three on the jacket only, not on the pants. This jacket appeared to be too big in size for the person wearing it. He was wearing runners which were dirty grey in colour. He was clean shaven and looked baby faced. I would recognise this person if I saw him again. 23. The second male was also Asian. He was wearing a baseball style cap. He was a little bit taller. He was about the same age. He was also wearing dark clothing. I would not recognise this person as I did not get a good look at him. This person was also not carrying anything in his hands. When I first saw these two persons as they climbed over the wall I was approximately six metres in distance from them. The area is fairly well lit due to the lights in the shop windows and also the street lighting although I was not wearing my police cap I believe that they would have no difficulty in knowing that I was a police officer. At no stage during this incident did I remove my police service revolver from its holster. 24. I did not give any person permission to assault me in any manner whatsoever. Inconsistencies with other evidence 196 Questions were raised during the proceedings concerning the veracity of the applicant's version of events and the consistency of this account with the other evidence. As has been mentioned, Mr Willis alleged three specific inconsistencies existed in the applicant's story. It is proposed here to set out some of the evidence relating to the alleged conflicts between the applicant's account and other evidence. Accessing Panadol 197 The first inconsistency identified by Mr Willis between the applicant's account and other evidence concerned whether the applicant spoke to his supervisor, Sergeant O'Keefe, about the availability of Panadol at the station. During cross-examination, the applicant gave evidence that he had spoken to Sergeant O'Keefe about the availability of Panadol. He then looked in the medicine cabinet but could not locate any Panadol and, therefore, went to his vehicle where he had some in his glove box. 198 Sergeant O'Keefe denied that the applicant had asked him for Panadol or that he had directed the applicant to check the medicine cabinet. During cross-examination in the Local Court proceedings, Sergeant O'Keefe responded as follows: Q. An did Mr Starr, Constable Starr, say to you, before he left the police station, "Have you got a Panadol, Sarge?" Did you say to him, "Check the box?" A. I don't remember that conversation at all. In fact I was looking for him because I didn't know he had left the police station. 199 Mr Willis questioned the applicant concerning this inconsistency as follows: Q. Do you recall Sergeant O'Keefe giving evidence about the Panadol, that he didn't remember you asking about Panadol? A. Yes I do. Q. What do you say, that his recollection about that is faulty do you? A. Well, he was on the computer at the time. If he doesn't remember he says he didn't remember. I am not accountable for him. I did ask him and he did answer me. Q. You say if he says he can't remember that he has got a faulty memory about that? A. Well he is human. He forgets. He maybe can't remember everything. The "Long Object" 200 The second issue raised by Mr Willis concerned the inconsistency between the applicant's account and the evidence of Mr Humphreys. Mr Humpreys indicated in his statement tendered in the Local Court proceedings that he had seen the applicant placing a long object into the boot of a white coloured car. In cross-examination, Mr Humphreys gave the following evidence: Q. And you didn't get much of a look at what the person was doing at the boot of this car, did you? A. No. I know he was putting something in the boot of the car and shutting it down as I crossed across. Q. When you say he was putting something in it, do you mean that he had his arms in the boot holding something? A. No. Just like if he was putting something down in - like any other person does, put something down in the car and shut the boot. Q. As though he had moved something and was putting it back in position? A. No. You know how anybody puts anything in the boot of the car. Q. Yes? A. Just like that, you know, and just pulled the bonnet down and the boot down. Q. And you thought it was a coat? A. I thought it was - looked like a coat. Q. An article of clothing? A. Clothing, yes. 201 Mr Humphreys then had a conversation with the applicant at the boot of the vehicle. In cross-examination, Mr Humphreys denied the applicant handled a water bottle during their conversation. 202 Mr Humphreys was not available to give evidence in these proceedings. However, the applicant was cross-examined in relation to Mr Humphreys' account: Q. When the Old Digger Mr Humphreys, came up to you, you had the boot of your car open did you? A. Not at that stage. I was getting the water bottle out of the boot. I don't' know whether he saw the boot open or not but I took the medication in front of him, yes. Q. When Mr Humphreys started to speak to you, you were standing at the boot, with the boot open were your not? A. As I just said, I received, got the water bottle out of the boot. It could have been whilst he was there, it could have been just before that. Q. So all you took out of the boot, in any case, was just this water bottle? A. That's correct. Q. What size of water bottle was it? A. It was only a litre bottle. Q. Was it what, just a commercial bottle, clear plastic? A. Yeah, a label on it, or I recall. I think. Q. Did you get anything else out of the boot at that time? A. No I didn't. Q. Did you lift anything up out of the boot and put it back in? A. Not that I am aware of. I could have moved items in my boot to get the water bottle but I didn't. The only thing I pulled out of the boot was the water bottle. Q. Specifically, you had an air rifle in the boot of your car didn't' you. A. I did. Q. Did you lift that out at that time? A. No I didn't. Q. Did you have what appeared to be a coat in the boot of your car? A. I had very messy boot at the time, yes. I had an old jacket in the car, in the boot of the car. Q. Did you take that out? A. I could have moved it to get to the water bottle. I brought nothing out of the boot, except for the water bottle. Q. When you say moved it, if you had simply needed to move it to look for the water bottle, you would have had to pick it up, would you? A. I can't move it by force. I would have had to physically pick it up to move it. I can't will it to move. Q. You didn't need to pick it up and lift it up out of the boot did you? A. I wouldn't have bought it outside the car. I probably moved, I moved the jacket to obtain the water bottle. Did the Applicant see a Weapon? 203 The final, and perhaps most significant, inconsistency alleged to exist in the applicant's evidence concerned whether the applicant had seen the weapon used to inflict the injury. It was the applicant's evidence that he did not see the weapon used to inflict the injury and did not describe any weapon to the officers who attended him on the ground. In his statement made on 27 April 1998, set out above, the applicant stated: He spun around, facing me. I didn't see anything. I didn't see him pull anything out. I just felt something pressed against my stomach. It felt like a finger but it was hard. I then heard a popping noise. I let go of my grip, I continued to chase him. I only took a couple of steps when I felt pain in my stomach and I think I got as far as the service station on the corner of Court Road and Alan Street. I then realised that something was wrong. 204 In the Local Court proceedings, the applicant was cross-examined about what occurred when he encountered the assailant. His evidence was as follows: Q. You managed to catch up to them? A. The second person, yes. Q. And you didn't see either of them carrying anything? A. No, I didn't. Q. And when you caught up to him, where was it that you caught up A. At the intersection of Spencer Street, where it meets Alan Road and Court Road, in the medium strip. Q. And how did you grab him? A. By the right shoulder and spun him around. Q. And what did - what happened when you spun him around? A. He virtually stopped. I felt something hard pressed against my stomach. There was no conversation it happened so quick. I heard the pop noise. I released my grip. He kept running. I kept running after him. I only ran a few more steps and that's where I ended up on the service station. Q. And from where - did you see anything in his hands at the time you heard the pop? A. No, I didn't. Q. How quick was all this? A. Very, very quick. A matter of seconds. 205 In these proceedings, the applicant was further cross-examined as to what he saw and heard when the gun went off. He was particularly cross-examined in relation to the evidence of Sergeant O'Keefe and Constable Deeley who said the applicant had described a weapon of some nature whilst he was lying on the ground. His evidence was as follows: Q. And I think you say you grabbed him on the shoulder, is that right? A. I grabbed his right shoulder with my left hand and spun him around. Q. What happened then? A. It's then at that stage when I didn't see a weapon produced. We virtually were on top of each other. I felt what I have said to be something hard, possibly a finger pressing against my stomach and I heard a pop noise. 206 Later, the applicant's evidence continued: Q. So you just didn't see anything in this man's hands at all? A. No I didn't see a weapon. Q. So there was no way that you could have described any weapon in any format at any later time? A. That's correct. As I have said and I will say it again at no time did I see a weapon at all. 207 In summary, the applicant's evidence was that he at no stage saw a weapon or anything else in the hands of the assailant. When he grabbed the man, he felt something against his stomach and heard a popping noise. He felt a pain in his stomach, but ran on a few steps before he realised what had happened. The applicant denied the possibility that it was he who had made the error. He claimed to remember "very distinctly" what occurred. 208 In contrast, at least two of the officers present at the scene gave evidence that the applicant had described a weapon of some nature. The other officers present gave differing accounts as to whether or not the applicant described the weapon used to wound him. Constable Albert stated that, when asked what happened, the applicant had replied: "I don't know, I think they hit me with something." Constable Stroud stated that she heard the applicant say words to the effect of: "I heard a pop noise, not like a gun but like a BB gun." Sergeant O'Keefe gave evidence that the applicant described a weapon approximately 30cms long which made a "pop" noise. Constable Deeley stated the applicant said words to the effect of: "It was long, like an air rifle." 209 In response to questioning by Mr Willis, the applicant explained the differing accounts given by the other officers by reference to the confusion at the scene: Q. So if there is any suggestion that you described to Sergeant O'Keefe or indeed anybody else an object that was about 30 centimetres in length? A. That is incorrect. Q. That person is just wrong about that? A. That information is incorrect. I never described any weapon of any size. Q. And Cons Stroud in a statement that she made on the same day as the incident said that you said words to the effect of, "I heard a pop noise, not like a gun but like a BB gun", did you say that? A. I remember telling Const Stroud that I heard a pop noise not like a gun. I don't recall saying a BB gun. If I knew what type of weapon it was I would be specific. You have to understand that I've got people around me. I have got ambulance officers around me. I have got questions and things have being thrown around. I know what I said and what's been (mistruen) along the way I can't answer for. 210 The question of whether the applicant saw a weapon was also raised in the context of what the applicant said on the police radio. An audio tape (known as a "VKG tape") recording the radio communications involving the applicant was tendered in the proceedings together with a transcript of what was said. In the transcript the applicant was denoted as V1 and the radio operator as V2. Constable Albert, the first officer on the scene, was denoted as V3. The relevant part of the transcript was as follows (emphasis added): 5.46.40 V1 Fairfield 17 in urgent foot pursuit. V2 Fairfield 17 only in foot pursuit, go ahead. 5.46.50 V1 I am on my own in Spencer Street heading towards the Cambridge, two asian males. 5.47.00 V2 Two asian males in foot pursuit. The street you are on. V2 Possibly Cambridge Street. 5.47.10 V1 Towards the hotel in Spencer Street. V2 Outside the hotel in Spencer Street. 5.47.20 V1 Radio one of them is armed. V2 One male armed. Cars to back up Cabramatta 101. 5.47.30 V2 Description of the armed offender. V2 Yeah, just your location 101. V3 17 Portable. 5.47.50 V2 Cabramatta 17 Portable. 5.48.00 V3 Radio. Fairfield can we get an ambulance please. V2 Yeah exact location Kookaburra hotel is it? V3 One of our officers are down. 211 The VKG audio tape may be relevant to the veracity of the applicant's account both in terms of what was said on the tape, the timing of the relevant events and whether the applicant's voice and accompanying sounds were consistent with the applicant chasing another person. During the proceedings, submissions were invited in relation to what use could be made of the VKG audio tape when assessing the events of the 25 April 1998. Specifically, the Commission raised a question with the parties as to whether the tape could be used to glean the applicant's physical state, such as whether he was running or out of breath at the time the broadcasts were made. 212 The applicant and the Commissioner agreed that the sounds captured on the tape comprised part of the evidence before the Commission and, as such, the Commission was entitled to draw inferences from them. Mr Willis conceded that the applicant may have been in motion at the time of making his transmissions. However, Mr Willis submitted that the Commission could not conclude that the applicant was running or sprinting. It was contended that the applicant made the transmissions some time after wounding himself and that the applicant could have feigned the shortness of breath heard on the tape. 213 Having regard to the contentions raised by Mr Willis as to whether there were inconsistencies in the applicant's account that he had not seen a weapon, an issue must arise in relation to the statement of the applicant on the VKG tape that one of the men was armed. The applicant was cross-examined in relation to this statement. The applicant responded as follows: Q. You radioed to VKG that one of the men was armed? A. That's correct. Q. How did you notice that one of the men was armed? A. Well it was very apparent to me that I'd been injured with something unknown and I tried to inform radio that one of the men were possibly armed for the simple approach of other police coming they would not be put in a position of harm themselves. Q. So it wasn't until you were hurt that you realised that one of the men was armed? A. That's correct. Q. Did you immediately convey that to VKG? A. Well at the time, well the best of my recollection VKG were broadcasting me a Cabrammatta car so there was some confusion as to my location and my call sign was Fairfield 17. Now a ran a further short distance before realising that something was wrong with me and it was at that stage that I had - a defender was leaving, was decamping and it was at that stage I tried to radio. I said more in a conversation but I couldn't possibly get on the air but I did advise radio the men were possibly armed. 214 The applicant was further questioned about his final transmission on the tape indicating that one of the men was armed: Q. So one of them was armed, is the last transmission you made to the police radio? A. That's correct, yes. Q. Did you say on the radio at any time, "Officer down" or words to that effect? A. No, this one again came up in the criminal matter that was my partner Robert Albert who was also the same call sign as me, Fairfield 17, he was on the scene just, just after I got to point C. I was trying to get to my feet at point C and Rober Albert was on the scene he told me to stay down and he called, "Officer down, Fairfield 17, officer down. I need an ambulance." ... Q. You required assistance, didn't you? A. That's correct. Q. Urgently? A. Yes. Q. You thought you had been wounded, you had been wounded? A. Yes. Q. Why didn't you use your radio at that point in time to tell people where you were, for example? A. Well, as I said after calling urgent foot pursuit there was confusion with radio as to the location and call sign and then you have got police officers from three stations in the area trying to copy to the job and get the location. It was virtually impossible for me to get back on the air and at that time I was in a great deal of - amount of pain. Shortly after, it only seemed a very very short time after I had Robert Albert on the scene and he had a police radio; there were other police following him. 215 Mr Willis did not pursue this specific line of questioning any further. From the transcript of the Local Court proceedings it does not appear that the applicant was cross-examined concerning his statements on the police radio. The Medical Evidence 216 Immediately following the wounding on 25 April 1998, the applicant was rushed to Liverpool Hospital, where he was the subject of a number of examinations, including an x-ray and a laparoscopy. The notes of the applicant's treatment whilst in hospital, including the results of these initial examinations, were recorded in a number of hospital records which were tendered in evidence. These records contained a number of documents including a "Patient Report" from the Ambulance Service of New South Wales, an "Emergency Observation Chart", admission and discharge forms and various radiology and pathology reports from Liverpool Hospital. 217 None of the treating doctors from the applicant's time in hospital, nor any of the doctors that produced the reports tendered into evidence, were called to give evidence in the proceedings. Mr Docking objected to the admission of these documents on the basis that the applicant would be denied the opportunity to cross-examine the medical practitioners involved. The Commission ruled that the documents should be admitted into evidence. In these proceedings, the Commission is not strictly bound by the rules of evidence: see s181G(1)(f) of the Act and s163 of the IR Act. The documents were relevant and probative, and the applicant suffered no serious prejudice as a result of their admission. In any event, the documents would be admissible as a business record: see s69 of the Evidence Act 1995. 218 A radiology report indicated that x-ray examinations were conducted of both the applicant's chest and abdomen. The report was in the following terms: CHEST: No evidence of pneumoperitoneum is seen No abnormality can be identified in the heart or lungs ABDOMEN: No abnormality can be identified in the distribution of bowel gas. No other abnormality can be identified The upper abdomen is incompletely seen. 219 The document headed "Trauma Assessment" contained, inter alia, a section headed "Physical Findings", which, on diagrams of a human form, identifies where the injury was visible upon physical examination. The document was marked to indicate an "entry wound" on the right hand side of the applicant's abdomen, about midway between the base of the applicant's rib cage and the top of the applicant's right hip. It further noted that there was no exit wound and noted that there was "no obvious radioscopic F/B" (foreign body). 220 A document headed "Operation Report" indicated that on 25 April 1998, the applicant was the subject of an exploratory examination at the site of the wound and an exploratory laparoscopy. The notes (handwritten) were in the following form: OPERATION PERFORMED: Exploration? Gunshot wound Laparoscopy DETAILS OF PROCEDURE: · Penetrating wound, 3mm · Explored · Dermis not breached · Sutured (4/0 Nylon) [At the laparoscopy entry point were the following notes:] · Transverse incision · Laparoscopy · NAD · Peritoneum not breached · Sutured (Nylon) · Skin (4/0 Nylon) 221 The History and Progress Notes of the 25 April 1998 recorded the outcome of the procedure as "no penetrating injury noted." The same words were repeated, once again in handwritten form, on the applicant's discharge letter of 27 April 1998. The Forensic Evidence 222 As discussed earlier in this decision, examinations of the shirt worn by the applicant were carried out by Sergeant Roach, who was attached to the Forensic Ballistics Section of the Forensic Services Group in Sydney. Sergeant Roach examined the shirt for approximately 10 minutes on 25 April 1998, and then later on 22 July 1998. He completed two reports, the first dated 22 July 1998 and the second dated 28 March 2000. 223 Mr Docking objected to the admission of certain evidence contained in the two reports. In summary, Mr Docking objected to the admission of statements contained in Sergeant Roach's report of 22 July 1998, referring to the breakage of fibres in the applicant's police shirt, as well as statements in his report dated 28 March 2000, also relating to damage to the shirt. The substance of the objection concerned the failure of the Commissioner to produce the applicant's shirt at the relevant stage of these proceedings. Mr Docking submitted that the loss and/or destruction of the shirt caused unfairness and prejudice to the applicant which could only be cured by excluding any reference to the breakage of the fibre. 224 Mr Docking cited a number of decisions in which courts have had occasion to consider the consequences of the loss or destruction of physical evidence. The bulk of the authorities referred to by the applicant concerned criminal proceedings in which the defendant sought a permanent stay in proceedings on grounds of abuse of process as a result of the loss or destruction of evidence: see, for example, Holmden v Bitar (1987) 27 A Crim R 255 and R v Reeves (1994) 121 FLR 393. 225 A number of decisions have, however, considered circumstances in which certain evidence was no longer available, but tests or examinations had been conducted on that evidence prior to its disappearance. In Inspector Apps v Clark Equipment Pty Ltd (unreported, Chief Industrial Magistrate, No. 98/2479, 4 August 1999), the defendant was prosecuted in relation to a failure to provide and maintain a safe system of work. A central issue in the prosecution related to the state and load bearing capacity of certain wires supporting a work platform. An inspector employed by WorkCover had examined the wires soon after the accident, but the wires themselves were subsequently destroyed. The Chief Industrial Magistrate ordered that the proceedings be permanently stayed because the defendant had been denied the opportunity to rebut the evidence of the WorkCover inspector. The Magistrate determined that the unfairness outweighed the public interest in bringing the defendant to trial. 226 A contrary outcome was reached in R v Hatfield [1999] NSWSC 998. In that case, the defendant was charged with the murder of her husband. Between the time of the alleged murder and the trial certain evidence had been lost, including a firearm and certain clothing. Tests had been conducted on the firearm prior to it being lost. It was claimed that unfairness resulted from the inability of the defendant to test the clothing for gunshot residue and blood. Grove J declined to order that the proceedings be stayed, but stated that the evidence of the test conducted on the firearm could be excluded from evidence if any unfairness arose. His Honour stated (at [20]): 20 The absence of ability to offer positive proof is said to work unfairness against the accused in a particular respect because she must face opinion evidence from Detective Ransome based upon proximity tests done with the Brno rifle and a "foreign" bolt that the muzzle must have been in excess of three, or two to three feet away from the point of contact of the projectile with the body. Again if it be demonstrated that the admission of such evidence from Detective Ransome was unfairly prejudicial there is jurisdiction to cure the matter. 227 The authorities referred to above concerned criminal proceedings. It is pertinent to note that the rules of evidence do not apply to these proceedings and the Commission may inform itself on any matter in any way that it considers to be just: s181G(1)(f) of the Act and s163 of the IR Act. Of course, this does not mean that the admission of evidence is unrestrained: see PDS Rural Products v Corthorn (1987) 19 IR 153 at 155 and Van Huisstede at 96. However, this is a consideration in determining whether any unfairness is produced by the admission of certain evidence and whether any unfairness may be cured by means other than excluding the evidence. 228 In these proceedings, the Commission is required to conduct its review in the manner dictated by s181F(1). The Commission must consider the reasons of the Commissioner and then the case presented by the applicant. In this case, the Commissioner relied upon the evidence contained in Sergeant Roach's report dated 22 July 1998 when making his decision. It is not possible to adequately scrutinize the Commissioner's reasoning without having regard to the evidence upon which it was based, including Sergeant Roach's conclusions concerning the damage to the applicant's shirt. Furthermore, the applicant sought to impeach the fairness of the decision-making process adopted by the Commissioner by reference to his failure to have regard to Sergeant Roach's cross-examination in the Local Court. In my view, these factors required the Commission to have regard to the evidence of Sergeant Roach concerning the damage to the applicant's shirt. 229 Any unfairness resulting from the failure of the Commissioner to produce the applicant's shirt was, in my view, moderated by the fact that the shirt was available at the Local Court proceedings. At that time, the applicant's counsel had the opportunity to test the evidence of Sergeant Roach in cross-examination. In these proceedings, the applicant relied upon a number of concessions made by Sergeant Roach in the Local Court proceedings, particularly in relation to his conclusions on the DNA and ballistics evidence. These factors have been taken into account in the Commission's deliberations on the applicant's contentions as to the process adopted by the Commissioner in making his decision. An expert appointed by the applicant also examined the shirt in preparation for the Local Court proceedings. That expert was not called to give evidence in these proceedings. 230 The failure of the Commissioner to produce the applicant's shirt at the relevant stage of these proceedings does affect the weight to be attached to the evidence of Sergeant Roach, at least in relation to the damage to the applicant's shirt. Sergeant Roach had possession of the shirt for only a short period of time and a number of uncertainties arose in relation to his evidence. The unavailability of the shirt removed the possibility of Sergeant Roach refreshing his memory concerning the condition of the shirt or further examination being conducted by another expert to counter the evidence of Sergeant Roach or to elaborate on the uncertainties in his evidence. The shirt was eventually recovered. However, as has been discussed, the tender of the shirt was not ultimately pressed by the Commissioner and, as such, considerations as to the weight to be attached to Sergeant Roach's evidence persist. 231 The details of the examinations conducted by Sergeant Roach have been given earlier in this decision. It is sufficient to note that he examined the shirt and reported a circular damaged area approximately 5.5mm in diameter showing yellowish coloured residue and a broken cloth fibre and a larger circular pattern surrounding this area which measured approximately 15mm in diameter. As has also been discussed, Sergeant Roach carried out a number of pellet impact tests on the police shirt material using the rifle found in the boot of the applicant's car and six brands of lead pellets suitable for use in air guns. Separate tests were conducted with the muzzle pressed against the material and with the muzzle held approximately 2.5 metres away. Telephone books were used as the backing for the material, both as a support and to trap the pellet upon firing. 232 Sergeant Roach made the following observations of these tests: · The impacts of the pellets with the material at contact distance appeared less severe on the material than those fired from approximately 2.5 metres distance. · The contact impacts produced a more regular (circular) discoloured halo around the impact site than those from impacts at distance. · The impacts from distance left a more pronounced lead smear on the material than those fired from contact. · Impacts at contact left the pellet jammed into the muzzle of the firearm on most occasions, whilst falling straight to the ground on others. Impacts at distance embedded into the material and phone book more deeply or bounced off onto the ground. · The impacts of some of the pointed pellets only produced breakages of the material fibres. · No appreciable stretching of the material in a larger circular pattern surrounding the smaller inner impact point at contact distance. More noticeable but irregular stretching seen on some of the distant impacts. · Of the six brands and styles of pellets tested, the WINCHESTER (pointed) fired at contact distance produced damage most similar in appearance to that observed on the exhibit Police shirt … 233 Under the heading "Summary and Opinions" Sergeant Roach stated the following: (a) In my opinion, the damage to the front lower right side of the exhibit Police shirt, (13a), is consistent with having been caused by the impact of a pointed air gun pellet fired from a .177 calibre (4.5mm) firearm, with the muzzle held in hard contact with the material at the time of discharge. (b) The inner and outer diameters of the impact damaged area on the exhibit Police shirt, (13a), are similar in size to the inner and outer diameters of the barrel of the exhibit GECADO air rifle, (10a), at the muzzle. (c) The absence of a spent air gun pellet located in relation to this shooting precludes the possibility of a comparative macroscopic examination between that pellet and any test fired pellets discharged from suspect weapons. Therefore, I am unable to state whether the exhibit GECADO air rifle, (10a), was the firearm used in the commission of this shooting. The pellet used to inflict the damage to the shirt and the subsequent injury to Constable STARR was certainly capable of being discharged from the exhibit GECADO air rifle, (10a). However, it would also have been capable of being discharged from any other .177 calibre (4.5mm) air or gas powered rifle, pistol or home modified firearm. 234 Whilst giving evidence in these proceedings, Sergeant Roach discussed the yellowish coloured ring or halo found on the shirt. He formed the view that this ring was left on the shirt from the muzzle of a gun being in contact with the fabric. He further stated his belief that the yellowish ring was made up of residues from the firearm such as oil, lubricant, lead, dirt or dust. As a result, the firearm recovered from the applicant's car was tested for any fibres adhering in or around the muzzle, DNA material from the barrel crown and muzzle, and residue comparisons between those found on the firearm and on the applicant's shirt. 235 As discussed earlier in this decision, Sergeant Roach conceded during the Local Court proceedings that the tests conducted failed to discover any residue, oil, fibres or blood linking the air rifle found in the applicant's car with the shirt. Further, Sergeant Roach conceded that any matching DNA material recovered from the air rifle and shirt could have come from a number of different sources, one being the towel in which the rifle had been found. Sergeant Roach reiterated both these concessions in his evidence in these proceedings. 236 Sergeant Roach also conceded that the damage to the shirt was consistent with a pellet being discharged from any other .177 calibre air or gas powered rifle, pistol or home-modified firearm. During cross-examination in the Local Court proceedings, Sergeant Roach at one point agreed that it was "most unlikely that that [the weapon found in the applicant's car] was the weapon that caused the wound to Mr Starr." In these proceedings, Sergeant Roach insisted that this statement was made in response to a particular line of questioning. He nonetheless agreed that "it is likely it [the air rifle] could have been [used], but not more likely than any other weapon of that particular class, so I suppose that equates to a possibility." 237 Mr Docking attacked the findings and methods adopted by Sergeant Roach in a number of respects. Mr Docking noted various discrepancies in the various references to the size of the hole in the shirt and whether there had been one or more than one broken fibre. In cross-examination the Sergeant conceded that he had not used any accurate measuring device to record the size of the hole, nor had photographs been taken. Rather, he made only a determination based on a rule of thumb. Sergeant Roach admitted in cross-examination that no precise measurement was made when the shirt was further analysed by him on 22 July 1998. 238 Mr Docking also drew attention to the evidence given by Sergeant Roach concerning the hole in the shirt in the Local Court. The prosecutor led from the Sergeant that there was a break in the fibre which was presumably where the pellet had entered. The examination-in-chief in the Local Court included the following exchange: Q. Do I understand that, in layman's terms, that you've got a smaller five millimetre or so diameter circle of yellowish staining? A. Yes Q. Which is contained within a large 13 or 15? A. It's about a 13, about a 13 millimetre diameter. Q. 13 millimetre larger circle with the crest stretching on either side of that circle. A. Yes. Q. And in the very middle is a small cut in the fabric? A. Yep. Q. Break in the fabric? A. Break in the fibre, yes. Q. Break in the fibre of the fabric which is presumably where the pellet entered? A. That's right, yes. 239 When questioned by Mr Docking about this exchange, Sergeant Roach could not remember agreeing that the broken fibre was presumably where the pellet had entered. Upon his memory being refreshed from the transcript passage above, the Sergeant confirmed his observation that the pellet had entered the shirt: Q. And that confirms, doesn't it, that the pellet had, according to your observations, entered the shirt? A. Yes it does. Q. By "entered the shirt" that means it had cut, put a tear, put a hole in the fabric? A. It had breached that fibre. Consideration of Evidence relating to Events of 25 April 1998 240 The Commissioner relied entirely on circumstantial evidence which, it was contended, established that the applicant used the air rifle found in the boot of his car to wound himself. Proof on the balance of probabilities or, indeed, proof on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage [1875] 1 AC 278 at 279: My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel. 241 In WorkCover Authority of NSW v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246 at 294, Hungerford J noted the decision of Davidson and Street JJ in R v Cable [1947] 47 SR (NSW) 183 at 184 where it was said: "In many cases, circumstantial evidence is stronger than direct evidence, which is subject to the fallibility of human observation and recollection." 242 However, where a particular fact or course of conduct is sought to be established by circumstantial evidence alone, that evidence must, when taken together, rationally and persuasively lead to the conclusion alleged. In Martin v Osborne (1936) 55 CLR 367, for example, Dixon J (with whom Latham CJ agreed) stated (at 375): If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. See also Ha ynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 at 152 - 153 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [6]. 243 In Seltsam Pty Ltd v McGuiness & Anor (1999 - 2000) 49 NSWLR 262, the Court of Appeal considered whether there was sufficient circumstantial medical evidence to establish that the inhalation of asbestos was causally linked to renal cell carcinoma. Spigelman CJ stated (at 278) that: The courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. 244 Any fact can be established by a process of inference which combines primary facts like "strands in a cable" rather than "links in a chain", to use Wigmore's simile (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R (1990) 170 CLR 573 at 579); see also Seltsam at 276. In seeking to draw a conclusion from a set of facts, however, it is necessary to distinguish between a permissible inference and mere conjecture. In Seltsam, Spigelman CJ cited (amongst others) the judgment of Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306, where it was said: The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to be quite possible. 245 As noted at the outset of this decision, it was agreed that the applicant was shot on 25 April 1998 with a weapon of some sort. It is appropriate to observe that there was little direct evidence of precisely what occurred other than the account of the applicant. The Commissioner relied substantially on the circumstance of the applicant having an air rifle in the boot of his car at the time of the incident to establish that the applicant had wounded himself. There was no dispute that the applicant was in possession of the weapon found in the boot of his car, even if the weapon belonged to a friend. The contention that the applicant was shot with the air rifle located in the boot of his car was also supported by the evidence of Sergeant Roach that the damage to the shirt was consistent with being caused by the air rifle found in the applicant's car, the allegation that the wound received by the applicant was also consistent with that type of weapon and the evidence of Mr Humphreys that he had seen the applicant at the boot of his car with a "long object". 246 In these proceedings, the Commissioner no longer relied upon the DNA evidence or the evidence concerning residues on the shirt as a result of the concessions made by Sergeant Roach. However, the Commissioner continued to rely on the evidence of Sergeant Roach concerning the damage to the applicant's shirt. A number of concerns were raised about the weight that can properly be attached to this evidence, particularly arising from the treatment of the police shirt and the accuracy and recording of any observations made by Sergeant Roach. Although Sergeant Roach is a person with significant experience in this field, the failure to make precise measurements, which would have allowed more direct comparisons with the impact tests, is a matter of concern. Sergeant Roach was also cross-examined in the Local Court in relation to the use of telephone books as a backing for the pellet impact tests. He conceded that this material was not a good substitute for human skin and that the tests were not designed to allow precise comparison of the degree of penetration from the air rifle. 247 It should be pointed out that the difficulties identified in the evidence of Sergeant Roach were not such as to remove the possibility that the firearm found in the boot of the applicant's car had been used to inflict the damage to the shirt. The uncertainties concerning the measurements taken and tests conducted by Sergeant Roach influence the reliance that may be placed on his conclusion that the damage was specifically consistent with what would have been caused by a .177 air rifle. However, the doubts concerning his evidence do not establish the inverse. That is, that the firearm found in the applicant's car had not been used to cause the damage to the shirt. I regard that possibility as open on the evidence. Strangely, no tests were carried out to determine if the weapon found in the applicant's car had been recently fired. In any event, even taken at its highest, the evidence of Sergeant Roach could suggest no more than that it was possible the air rifle recovered from the applicant's car had been used to inflict the injury. 248 The next stage in the consideration of the evidence should address the inconsistencies that were said to exist between the applicant's story and other evidence. I do not consider the conflicting accounts of the applicant and Sergeant O'Keefe in relation to whether he asked the Sergeant for painkillers adversely impacts upon the credibility of the applicant or the plausibility of his version of events. Sergeant O'Keefe only indicated he did not remember having a conversation with the applicant concerning the availability of Panadol. Constable Albert and Constable Deeley gave evidence that the applicant told Sergeant O'Keefe he was going to his car to obtain Panadol. Sergeant O'Keefe stated that Panadol was ordinarily available in the medicine cabinet, but conceded that he could not be sure that there were tablets in the cabinet on that night. On balance, this issue can be resolved in favour of the applicant. 249 I also do not regard the inconsistency between the statement of the applicant and the evidence of Mr Humphreys as substantially undermining the applicant's story. Mr Humphreys stated that he had seen the applicant at the boot of his car with a "long object". The evidence in the Local Court indicated that the area was badly lit and that Mr Humphreys was by no means sure what he had seen. He mentioned that it might have been a coat or piece of clothing. This evidence is reasonably compatible with the applicant's statement that he may have moved objects in the boot whilst retrieving the water bottle. Nonetheless, the evidence of Mr Humphreys at least confirmed that the applicant was in the vicinity of the car and standing at the boot immediately prior to sustaining the injury. 250 Mr Humphreys also denied that the applicant had taken the Panadol in front of him as was asserted in the applicant's statement. This constitutes a direct conflict in the evidence and one of the witnesses must be mistaken. However, I do not regard this as significantly undermining the applicant's account. Constables Albert and Deeley supported the applicant's contention that he went to his car to obtain some Panadol. A water bottle was found in the boot of the applicant's car (a video put in evidence showed a water bottle at that location). The applicant's evidence was that he had placed the bottle in the back seat of his car. However, no evidence was presented to indicate whether a bottle was found in the back seat or not. This matter can, therefore, be no more than neutral in the assessment of the applicant's story. 251 A more serious question exists in relation to the inconsistencies concerning whether the applicant had seen, or described, a weapon used to attack him. In this regard, the statements of the applicant recorded on the VKG tape are of particular significance. The tape represents a contemporaneous record of what was said by the applicant at the time he claimed to have chased two Asian men and then confronted and been wounded by one of them. The statements of the applicant were instantaneously recorded reactions to whatever occurred on 25 April 1998 and were made in circumstances where there was no apparent opportunity for reflection or reconsideration by the applicant of his account. The consistency of those statements with his later evidence perhaps provides an important signal as to the veracity of his account. 252 A difficulty in the applicant's account concerns his statement on the VKG tape that one of the men was armed. This statement must be seen against the background of the applicant's consistent evidence in his initial statement, in the Local Court and in these proceedings that he did not see a weapon. The applicant gave evidence that he ran a few more steps after grappling with the assailant before he even realised he had been injured. Under cross-examination, the applicant indicated that this transmission was made after he had realised he was wounded. The applicant explained that he had been injured by something unknown and, as a result, formed the view that the man was "possibly armed". This evidence does not sit comfortably with the applicant's repeated denials that he had seen a weapon and his general uncertainty concerning what had occurred. 253 Of greater significance is that the applicant's responses are not convincing when considered alongside the statements on the tape. The applicant's statement on the police radio was that "one of them is armed". Having reviewed the tape, it is possible to observe that this statement was made in a confident and straightforward manner. The applicant's firm statement that one of the men was armed is inconsistent with the uncertainty the applicant expressed concerning what had occurred. It is difficult to accept that immediately following an assault (even allowing for the applicant to have suffered stress and pain) the applicant would have radioed to say confidently that the man was armed if he had not seen a weapon and was not sure what had occurred. It is surprising that the applicant's first reaction upon realising he was wounded would be to radio to say one of the men was armed when he had not seen a weapon or only formed the view that the man was "possibly" armed. It is difficult to comprehend why he would not have stated that he had been injured or that an officer was down. 254 The inconsistencies between the applicant's account and the evidence of the other officers do not in themselves raise significant doubt as to the applicant's evidence. I accept the submission of Mr Docking that this is not a case where the consistent accounts of a number of witnesses contradict the applicant's evidence. Whilst the statements of Sergeant O'Keefe and Constable Deeley directly conflict with the applicant's evidence, they were not themselves entirely consistent nor were they consistent with the evidence of Constable Stroud. Sergeant O'Keefe, for example, denied hearing the applicant refer to an air rifle as claimed by Constable Deeley. Constables Stroud and Albert did not recall the applicant describing a particular weapon. Neither Sergeant O'Keefe nor Constable Deeley took notes of what they heard the applicant say, nor did they mention what was said to any other officers at the time. However, viewed in conjunction with the applicant's transmissions on the VKG tape, the accounts of the other officers raise real doubts about the consistency of the applicant's evidence. 255 It should be recognised that some circumstantial evidence assisted the applicant's account apart from the evidence showing that the applicant sustained an injury on that day. Some aspects of the VKG audio tape recording support the applicant's story. Having reviewed the tape, I observed that the applicant appeared to be running and out of breath whilst making the radio transmissions. The timing of the exchange also appears to be generally consistent with him chasing some persons down a road for a distance of approximately 60 - 80 metres. The tape further confirms that Constable Albert was quickly on the scene following the applicant's radio transmissions and that he was shortly followed by other officers. 256 The accounts of Sergeant O'Keefe and Constables Albert, Stroud and Deeley also provide some support for the applicant's story. All the officers indicated that the applicant was found lying on the ground in a distressed state and appeared to be in considerable pain. Constable Albert, for example, stated that the applicant was "holding his stomach" and was "pale and [Constable Albert] thought he was going into shock." Sergeant O'Keefe indicated he had to step away to use the radio because the applicant was screaming. I have also had regard to the evidence of Ron Butler that he saw an Asian man in the area and of Senior Constable Donaldson that a police dog detected recent scent. This circumstantial evidence is no more than possible corroboration of the applicant's account (as it is, in some respects, equivocal), but is another matter to be considered. 257 The evidence before the Commission demonstrated that some aspects of the Commissioner's reasoning were not soundly based and further established the inadequacies in the information before the Commissioner. This was evident from the examination of the deficiencies in the DNA evidence and the ballistics evidence provided by Sergeant Roach. However, putting aside the evidence as to the later conduct of the applicant (which is entirely new), there was a difference between the material before the Commission and that considered by both the Commissioner and the Local Court as a result of new factual material introduced in the cases for the applicant and the Commissioner in this matter. Of greatest import in this respect was the evidence as to the VKG tape recording and transcript, including the cross-examination of the applicant in relation to that tape. 258 Having reviewed the evidence at this point, it is possible to make some preliminary observations. Whilst not all the evidence introduced by the Commissioner supported the allegations against the applicant, certain contentions were borne out. It is evident that the applicant did possess a firearm in the boot of his car and that he was in the proximity of the car immediately prior to sustaining the injury. The applicant admitted as much and the evidence of Mr Humphreys confirmed this. Some difficulties were demonstrated in the tests conducted by Sergeant Roach on the applicant's shirt. However, it remains the case that the damage to the shirt could have been caused by the firearm found in the applicant's car, although it must be observed that it could also have been caused by another weapon. Tests were not conducted which could have ascertained conclusively the extent of the injury that would have been caused by the air rifle. However, I do not understand that it was contested that the air rifle would have caused only minor injuries not unlike those sustained by the applicant. 259 Against this case, the applicant raised his own account of events. As discussed, this account was supported by other circumstantial evidence, particularly some aspects of the VKG tape, the accounts of the other officers as to the applicant's condition when on the ground and the evidence that there may have been people in the area. However, a substantial issue arose as to the consistency and veracity of the applicant's account when compared to the transmissions made by him as recorded on the VKG tape. A particular question was raised in relation to his evidence that he did not see a weapon. This evidence, which was repeated in his initial statement, before the Local Court and in these proceedings, was difficult to reconcile with his statement into the police radio that "one of them [the Asian men] is armed". As has been discussed, it is not plausible that the applicant would have made such a statement if he had not observed a weapon or was unsure of what had occurred. 260 Ordinarily, it would be appropriate at this point to apply the consideration of onus to the facts as found. However, it is not possible to form a final view of the evidence in this case without turning to the applicant's case in relation to the metallic object which was said to have been discharged from his body. As will be discussed, the evidence as to that matter may have some bearing on the determination of what occurred on 25 April 1998, in so far as it corroborates, or fails to corroborate, the applicant's account or reflects upon the applicant's credibility. Later Conduct and the Discovery of the Metallic Object 261 The applicant gave evidence that during November 1999 he developed an inflamed "boil" like infection on his abdomen. On 19 November 1999, whilst he was cleaning the boil, a small metallic object discharged from the site. The applicant's case was that this metallic object was related to the incident of 25 April 1998. It was claimed that the object had been fired into his abdomen and remained there until it was discharged through the boil on the applicant's skin. 262 In his statement of evidence, the applicant claimed that in the months following his discharge from hospital, he suffered pain in his abdomen which was localised at the site of his original wound. The applicant stated that in mid 1999 he consulted Dr Lakshmanan complaining of this ongoing pain. He was referred to a specialist, Dr Fulham, who further referred the applicant for an abdominal ultrasound and x-rays. The results, dated 13 August 1999, indicated a dense fragment seen projected over the soft tissues of the right epigastrium consistent with a bullet fragment. 263 On 30 August 1999, the applicant underwent further x-rays. The report, from Dr David Gudex, of the same x-ray clinic, included the following finding: PLAIN ABDOMEN A metallic ball type rounded structure of 1 cm diameter is evident at the right side of the abdomen, this appears to be within the ascending colon and descends to the region of the caecum when the patient is erect. No small bowel obstruction. No other density suggestive of an ingested foreign body is evident. 264 The applicant stated that although the object was identified, Dr Fulham recommended against an operation to remove it, as he could not identify its exact location at any given time. In mid November 1999 the wound once again became red and inflamed and appeared "larger and angrier than before." Upon looking at the site, he stated that he could see a darker colour amongst the yellow and red of the wound and it appeared to him "that the object was working its way out of my body." 265 As to the discharge of the object on 19 November 1999, the applicant stated: 35. On 19 November 1999 after taking a shower I examined the wound in the mirror. I saw that around my scar was very inflamed and in the middle to the left of the scar was a ball of puss and muck. It looked like a black round object. I then got a razor blade in a cartridge and popped the boil for the purpose of draining the puss so I could clear the area properly. Immediately blood and puss poured out of the wound and I opened the bathroom door and said "Mum, will you look at this." 36. When my mother approached from the dining room and saw the blood and puss pouring from the wound she said to me, "Don't touch anything, get in the car and we'll go down to the Doctor." 37. As she turned and walked away I squeezed the scar, it bled quite heavily and to the surface came the object and it just came out of the skin onto my hand I said, "Oh, Mum" and gestured to the object in my hand. 266 The applicant's mother, Mrs Valerie Starr, made a statement which was tendered in these proceedings in support of the events outlined above. The statement of Mrs Starr outlined the events of that morning as follows: 9. On the afternoon of 19 November 1999 I was on the phone in the dining room of my premises when Andrew opened the bathroom door and said "Mum, will you look at this." 10. I went to him and saw that the wound had come to a head and was weeping blood and puss. There was a yellow pin prick surrounded by a red circle and underneath that you could see what appeared to be a dark object. 11. I said, "Don't touch anything, get in the car and we will go down to the Doctors." 12. I turned away and walked towards the phone intending to ring the Doctor when I heard Andrew say "Oh, Mum." I turned around and saw him standing with his right hand under the wound pressed up against his abdomen holding a small dark object. There was blood streaming from the wound and I said to my husband "Tom, quick get the camera." 267 The photographs taken by Mr and Mrs Starr were annexed to Mrs Starr's statement. Those photographs depict the applicant standing in his underwear with blood dripping from the lower right side of his abdomen. In his hand he held the object which he claimed was to have popped from his skin. 268 Mrs Starr then stated the following: 16. When I looked closely at the object both when Andrew was holding it and when he tipped it into my hand I could see some pieces of what appeared to be skin adhering to it. I can only describe these as wafer thin "feeler-like" tentacles. I immediately recognised them because I had had a previous experience with a foreign object being rejected by the body involving my daughter Beverley when she was a child and I recognised the same feeler like tentacles that I had seen on that object were adhering to the object that had apparently come out of Andrew. 17. Although I did not see the object actually pop out of Andrew's skin, I can say that I saw the red and inflamed lump prior to the excision of this object and that lump, dark in colour was not present after I saw the object in Andrew's hand. 269 After the photographs were taken, the applicant was taken to see Dr Lakshmanan, who placed one suture on the wound. The object was placed in a jar and given to the applicant's legal representatives. The object was tendered as evidence in these proceedings. Medical Evidence 270 Three reports by Dr Lakshmanan relating to the abscess and object were tendered in the proceedings. Dr Lakshmanan is a general practitioner who has been in practice for some 28 years. In relation to the referral to Dr Fulham, Dr Lakshmanan, in an undated report, wrote the following: Mr. A. Starr consulted me on the 12 May 1998 with history of abdomen pain around the 'UMBILICAL' and surrounding area. This is referred pain resulting from the bullet lodged in the abdomen. He was referred to DR. S. FULHAM who was reluctant to do a Laparotony even though his x-ray FILMS identified the fragment of metal. He was prepared to wait and see what will eventuate. As Dr. Fulham predicted the metal fragment worked its way out. 271 Another report by Dr Lakshmanan, dated 19 January 2000, outlined the events of 19 November 1999 when the applicant consulted him shortly after the object had appeared. That report was in the following terms: Andrew Starr consulted me on the 19th November, 1999 with a small opening on his anterior abdominal wall. He gave a history of pain in his abdomen prior to this and found he was developing a lump in the abdomen. It became red and puss was forming and it came to a head so Andrew decided to let the puss our (sic) of the swelling with a razor blade. He found a lot of puss and blood pouring out of the incision along with a small metal fragment. On examination the (sic) was a small laceration on the anterior abdominal wall. There was a fair amount of puss still in the wound and Andrew showed me the fragment of metal which looks like a piece of bullet coated with blood and puss. The wound was cleaned by me and the skin closed with one silk suture He was prescribed antibicotics (sic) because of the puss in the site of the abcess (sic). The metal piece was placed in a sterile jar and given to Andrew. In my mind there is no doubt that this was a bullet which was lodged in his abdomen during the shooting incident which has gradually worked its way to the anterior abdominal wall. 272 Dr Lakshmanan gave oral evidence in these proceedings to the effect that since blood had penetrated and formed a residue on the object it must have been in the abdominal cavity for some time. If it had been in the bowel or colon, it would have been passed during defecation. If it had perforated any abdominal organs he would have developed peritonitis within 48 hours and needed major surgery. As a result, it was his opinion that the object had been present in the applicant's abdominal cavity for some 18 months. 273 Dr Lakshmanan stated that the object may not have shown up on the original x-rays and examinations at Liverpool Hospital as it was "hiding or floating behind fat" or due to a mistake on the part of those examining him. According to Dr Lakshmanan's report dated 31 January 2000, the object could have been missed because looking for an object such as a bullet inside the abdomen is "like looking for a needle in a hay stack." He was of the opinion that a laparoscopy was not particularly effective for finding such a small object: Q. In your experience and knowledge in medicine is it a surprise that that sort of procedure did not find the size of object? A. Because the object was in the abdominal cavity, it would be laying beneath the bowel or in one of the loops of intestine. Unless you do open surgery and cut open and then looked around, removed all the bowel aside and looked for the object, you would not be able to find it with laparoscopy. 274 Dr Lakshmanan stated that a foreign body may float around in the abdominal cavity. When this does occur, the foreign body may move around as the patient moves, be it simply sitting and standing or playing sport. Eventually these foreign bodies appear on the surface of the skin. Dr Lakshmanan gave evidence of this occurring, in his personal experiences, with patients who have suffered shrapnel injuries as the result of war or motor vehicle accidents. Eventually, small pieces of metal appear underneath the skin surface which then require removal. 275 Dr Lakshmanan denied that the object could have been introduced into the applicant's body after 27 April 1998. He gave evidence to the effect that the wound went from the inside of the body to the outside, stating that if the skin had been cut open and the object inserted, the infection would go from the outside in. Under cross-examination, Dr Lakshmanan conceded that 19 November 1999 was the first occasion he had seen the abscess. He had therefore not seen or treated the applicant in relation to this wound prior to his arrival at the surgery that day or prior to the applicant telling him that the object had discharged from the area of his wound. 276 Mr Willis cross-examined Dr Lakshmanan on his belief that it was impossible for the object to have been inserted after 25 April 1998 as follows: Q. Why do you say that it is not possible for this object to have been inserted into his body after 25 April? A. He would have developed some problems, who was going to stitch the wound of insertion has to stitch the skin. He would have introduced infection. It would have happened within a week. Q. Well, firstly he would only have required a suture if there had been an incision large enough to require it, is that right, and this object is, I suggest to you, about seven millimetres in diameter, would you agree with that? A. I thought it was five millimetres in diameter. Q. In any case it would only require a very small incision into the skin, wouldn't it? A. Yes, but I don't know why Mr Andrew would want to do that in my opinion. Q. I'm not asking you to look into his mind? A. Right. Q. But it would certainly require a very small incision to insert an object of that size into the skin? A. Yes. Q. If there was an incision made into the skin and that object was pushed into that incision, what would happen would be --? A. A rejection. Q. -- A rejection and he would present in the same way that you saw him on 19 November last year, wouldn't you? A. Yes. Q. But you say that would happen, I take it from what you say that if he cut himself, inserted the object, that would be rejection by the forming of the obsess (sic) within a short period of time? A. Yes. Q. How long do you say? A. A week, two. 277 Later Dr Lakshmanan conceded that the wound he observed on 19 November 1999 was consistent either with an object working its way out of the body or an object having been inserted. The evidence in this respect was as follows: Q. Doctor, what you say on 19 November firstly of Mr Starr's wound? A. Yes. Q. This abscess on his abdomen was equally consistent, wasn't it, with the object having been inserted into his body at least long enough before he saw you for an abscess to form area? When I say equally, consistent with the other scenario being that it entered his body on 25 April 1998? A. Yes.. 278 As to the object exiting the applicant's body at the same point where it entered, Dr Lakshmanan stated that this was "definitely possible". As an entry had been created, and as there is a known entry point, there is an area which has been exposed making it possible for the exit to occur at the same point. 279 A report was commissioned by the Commissioner from Dr A D Cala, a forensic pathologist with the NSW Institute of Forensic Medicine. Dr Cala was asked to provide an opinion in relation to the object. Dr Cala had practised forensic pathology since 1989 and is a registered medical practitioner. He has been involved in coronial inquests and hospital post mortems involving, inter alia, deaths resulting from gunshot wounds. A part of his work involves giving evidence as to the effects of gunshot wounds on the human body. 280 Dr Cala's report contained the following discussion and conclusions in relation to the object: In my opinion, I do not believe this "object" represents a spent air rifle projectile. I have seen air rifle projectiles previously, and the "object" I examined bears no similarity to any of these air rifle projectiles. I am unsure of the exact nature of this "object", and would suggest a metallurgist or similar person working in the metals industry examine it for their opinion. Although it resembles a ball bearing in size, it is not shiny nor spherical in shape. I am unsure as to the exact nature of this but it may represent a cast-off or waste product from the steel or iron foundry industry. ... I do not believe it is possible that this object, whatever its nature, was shot into the abdomen of Constable Starr on 25 April 1998. I do not believe that abdominal x-rays which were taken at the time would fail to show up this object had it been in the skin, subcutaneous tissue or abdominal cavity of Constable Starr. As well, this object is clearly not that of an air gun pellet but some other metallic object, possibly from the steel making process. Constable Starr may have been shot in the manner he has described in April 1998, however there is no evidence at all that any projectile entered his body at the time. I believe it is more likely that the "object" I was shown was introduced into the front of the abdomen of Constable Starr some time after 27 April 1998, and possibly several days or weeks prior to 13 August 1999. I do not believe that Constable Starr has ingested this object, as on two successive occasions, x-rays have identified this object in a very similar location. Likewise, I do not believe that Constable Starr would have been able to place this object into his colon via the rectum for similar reasons. I am unable to say exactly why the CT scan of the abdomen failed to show up the object which was present on one two abdominal x-rays, however a possible explanation is that the horizontal slices taken through the abdomen to perform the CT scan took images above and below the foreign object, with no images taken actually through the object. Another possibility remains, although I believe it is less likely, that this object might have been taped to the inside of Constable Starr's clothing that he was wearing at the time of the two abdominal x-rays. At most competent and reputable radiology facilities, patients would be requested to remove unnecessary clothing, so I am of the opinion Constable Starr would almost certainly have had no singlet, tee-shirt or shirt on while the x-rays were being taken, thus dismissing this possible explanation. There is no evidence that any projectile entered the body of Constable Starr on 25 April 1998. After a period of approximately eighteen months, Constable Starr has complained of symptoms necessitating further investigations. As part of this, a metallic "object" has been seen in two x-rays of the abdomen, however a CT scan failed to reveal its presence. Some time after this, an "object" was spontaneously discharged out of the subcutaneous tissue of the front of Constable Starr's abdomen. I submit that this scenario is medically impossible. In my opinion, it is more likely that the "object" was inserted into the body of Constable Starr some time after 27 April 1998. Its shape, texture and general characteristics are not that of an air-rifle projectile, but more likely cast off material from the steel or iron industry. 281 It should be interpolated here that Mr Docking objected to aspects of this report pertaining to the opinions expressed as to the origins of the object being in the steel or iron industry. The objection was based on Dr Cala not being a qualified metallurgist or anything of the type. The objections raised were said to go to the weight rather than the admissibility of the evidence. As such, the evidence was admitted, but the qualifications of Dr Cala were to be considered when ascribing weight to those particular conclusions. 282 It is appropriate to mention that Dr Cala did not consult with any physicians or other medical personnel who treated the applicant, including Dr Lakshmanan. Nor did Dr Cala examine or personally speak with the applicant. His opinions are based solely on documentation provided to him by the Commissioner, including the Liverpool Hospital file and the reports of Dr Lakshmanan. Prior to Dr Cala being called to give evidence, he was also provided with a transcript of Dr Lakshmanan's evidence given in the hearing. When called to give his evidence, Dr Cala confirmed his opinion that the scenario presented by the applicant was "so unlikely as to be almost impossible." 283 In cross-examination, Dr Cala conceded that Dr Lakshmanan was at an advantage in terms of the history of the wound site, having personally seen and treated the wound. However, Dr Cala did not consider that this put Dr Lakshmanan at an advantage in coming to an opinion as to when the object first entered the applicant's body. He considered that it was only "possible" that this gave Dr Lakshmanan an advantage because in this case, "there are discrepancies here that don't add up." 284 Dr Cala conceded that objects could float in the abdomen, depending on the circumstances. He conceded that in his experiences with war veterans he has known of foreign bodies, such as shrapnel, remaining in the body for nearly 70 years yet do not appear on the skin's surface. In the past he had been a resident medial officer at Concord Hospital and treated a large number of war veterans. He gave the following evidence in relation to such occurrences: Q. You are familiar, with quite varying periods of time, those sort of patients have things like fragments or shrapnel and other fragments come out of their body? A. From time to time. Q. Even physiotherapists might be treating somebody and they may get a fragment or bit of shrapnel that comes out of the leg? A. Yes, it can happen. Q. Where the person was shot in the abdomen it has floated to the leg? A. I have never seen that. Q. Have you ever heard of that? A. I have heard that pieces of metal from fragmented bullets do enter the blood stream and transported to other areas of the body. I have never heard of somebody being shot in the abdomen and a piece of shrapnel being transported from the abdomen into the leg. I have never heard of that. 285 However, Dr Cala rejected the view that the object had been in the applicant's body since the shooting of 25 April 1998. Dr Cala rejected Dr Lakshmanan's view that the object could have been obscured by fat which resulted in its failure to appear on the original x-rays. According to Dr Cala, this object would have appeared on the x-rays, even if it was behind fat. His evidence in this respect was as follows: Q. It is well known, isn't it, that objects can be missed in x-rays because, being the object might hide behind some fat? A. Some objects, may be if I can use the term "missed" on x-rays, not because they hide behind fat, but because the density of those objects is such they don't show up when they penetrate, injury with a piece of wood or twig or a glass fragment from a motor vehicle accident is imbedded into their skin. That might penetrate further into the abdominal cavity if the density is such, very light or quite similar in fat to the soft tissue fat, blood vessels and muscle. It may not show up. [The transcript of the proceedings omitted a full stop at this point. The record should be treated as if a full stop was recorded as it is apparent from the text of the evidence that, in speech, the witness had intended a full stop to be inserted] If an object is very dense like metal. In my experience it will always show up on a plain abdominal x-ray. Q. Are you not allowing for the possibility that the object handed to you by Mr Roach could have been hidden by something like that, Mr Starr's fat? A. If that object was hidden by fat it would certainly show up on x-ray. I don't agree with Mr Lakshmana's opinion, hidden by fat and therefore obscured on the x-ray. 286 Dr Cala disagreed that one could tell how an infection came about simply by looking at the wound and the pus and/or blood surrounding it, and disputed the view that given a previous entry wound the internal part of the abdominal cavity may be weakened so causing the object to be expelled at the same entry wound site. Dr Cala was quite adamant in his opposition to this proposition. He denied that it was even a possibility that that object would emerge from the same entry point. 287 Further, Dr Cala disputed Dr Lakshmanan's opinion that the amount of bloodstain on the object meant it had been in the body for possibly a year or two. His evidence in this respect was as follows: Q. You know that the doctor has expressed the opinion from the amount of blood stain which had penetrated the object, he says it would have been there for months and months, maybe a year or two? A. I am aware that he said that, but I don't agree with that. 288 It is also appropriate to have regard to the applicant's evidence in relation to the way in which the metallic object emerged. The applicant stated that his response to the notice was given at around the same time as the x-ray of August 1999 showed a dense metal fragment in his abdomen. Mr Willis questioned the applicant in relation to his reasons for withholding this information from the Commissioner in his submission. His evidence was as follows: Q. That must have been at about the same time that you were preparing your written submissions to the Commissioner? A. Possibly the same time, or within a - late July or early August, or some stage round that time, yeah. Q. Then on 13 August, you had this x-ray which showed the dense fragment, as it is described? A. Yes, that's correct. Q. You knew, didn't you, that the case against you in the Local Court and the issue that was one of the grounds upon which the Commissioner was expressing his concerns in the notice to you, was that in effect, the injury that you suffered was inflicted by yourself? A. That's correct. Q. By an air rifle? A. That's correct. Q. And that one of the issues in the course of the hearing in the Local Court, was the nature of the injury that was caused to you. That was something that was examined in the evidence wasn't it? A. Yes. Q. When you got that x-ray result, which showed that there was a dense fragment, did you think it was in the wound firstly, or in the vicinity of the wound? A. In the vicinity of the wound, yeah. I am not a doctor but in, or round it. Q. Did you think it was related to the incident on 25 April 1998? A. Yes I did, certainly. Q. You thought that it was the object that had been fired at you? A. That's correct. Q. Did you think that was important to your case? A. Certainly did. Q. Did you think it was important to the Commissioner's deliberations, in terms of whether he should remove you or not? A. Yes, in fact, yes. Q. Firstly, in the written submissions that you made to the Commissioner, you made no mention of any recurring problem at the wound site, did you? A. No. Q. You didn't make any mention in there of undergoing any further tests did you? A. At that state I hadn't been to the doctor, or specialist. Q. You had been to see Dr Lakshmanan and he must have referred you to Dr Fulham? A. I think it was a week or so after my submission was made to the Commissioner. Q. When you got the result of the x-ray on 13 August, why didn't you then bring it to the notice of the Commissioner? A. I bought it to the notice of my solicitor immediately and he told me - I gave him the necessary information and what not. He instructed me as my solicitor, to leave it with him and to keep it suppressed, let him handle it. That's exactly what I did. I acted under the instructions of my solicitor. Q. They were your written submissions and it was your job? A. Yes, that's what I pay a solicitor for, to represent me. 289 Mr Willis also challenged the applicant on why he did not have the abscess properly documented when he saw the dark object under the skin's surface. The applicant responded as follows: Q. Didn't you think it was important if this object was going to work its way out that when that did happen that there should be some proper documentation and/or proper authentication of that happening? A. Certainly, given the circumstances of what I would be doing in the past, but yes but at the point this time it just was not popped. It wasn't a thing that was planned, it happened. Q. Why did you take it upon yourself when you saw the state that it was in to pop the boil as you say by using the razor blade and then squeezing it so that this thing came out when there was no-one else there to authenticate what you say? A. That was for the purpose of cleaning it. I didn't expect to get anything out of it except the puss and what not for infection reasons so it was much as a shock to me. I did not expect to get that out on the day. That was not my intention to squeeze and squeeze and squeeze until I got something out. Q. Did it not cross your mind, look if I don't have this properly authenticated that the Commissioner probably won't believe me that this has come out of me. Certainly it crossed your mind? A. Certainly, but there was nothing I could do at the time. Q. But you could have gone to Dr Lakshmanan before you popped the boil as you say? A. Yes, the doctor advised me to clean it and that is what I was doing and in the course of cleaning this is what happened and that is immediately after, the most time, the first time available and appropriate I went to the doctor. I went as soon as practical, not before. Q. As soon as practicable after you had caused this object you say to come out? A. That's right. Forensic Evidence 290 The object, which the applicant claimed discharged itself from his abdomen on 19 November 1999, was also the subject of a number of tests. A report was prepared by Mr John Barber, a Forensics Ballistics Consultant with 29 years of experience who was previously employed as a firearms and crime scene examiner of the Scientific Investigation Section of the NSW Police Department and as the Senior Forensic Ballistics expert of the NSW Police Department for several years. Sergeant Roach also examined the object and completed his second report dated 28 March 2000. Sergeant Roach expressed similar opinions to Mr Barber. 291 It is unnecessary to set out the findings in the reports in extensive detail because the two experts concurred in a number of important findings. Both experts agreed that the metallic object was not a commercially produced air rifle pellet and that, because of its size and nature, the object could not have been discharged by the air rifle recovered from the boot of the applicant's car. Mr Barber added that, to his knowledge, there was no commercially produced firearm capable of discharging the object. Sergeant Roach agreed that the object was not suitable for discharge from the most common commercial air rifles or pistols. Both experts conceded that it was possible for the object to have been fired by some kind of home made weapon or perhaps slingshot or catapult. Mr Barber stated that "a home made device is only limited by the imagination of the designer." 292 Sergeant Roach was also requested to comment on the likelihood of the object being responsible for the damage to the applicant's police shirt. He expressed his conclusions as follows: (5) I have been asked to comment on the likelihood of the 'object' having been responsible for the damage noted to the Police shirt worn by Constable STARR at the time he received his injury on the 25 April 1998. My examination of the shirt, as outlined in my certificate dated 22 July 1998, indicates that the shirt displayed ONLY ONE BROKEN FIBRE within the weave (warp and weft) of the cloth at the impact site. The shirt HAD NOT BEEN PENETRATED by a projectile to the point where it had passed through the cloth. In my opinion, whilst it is POSSIBLE that the 'object' contacted the shirt and broke the fibre, IT IS NOT POSSIBLE FOR THE 'OBJECT' TO HAVE ENTERED THE ABDOMEN OF STARR IF IT DID NOT FIRST PENETRATE THE SHIRT. (a) In order for ANY PROJECTILE to enter the abdomen of STARR, one would have to accept that the damage noted to the shirt was in no way connected to the impact of a projectile as there was NO PENETRATION. Therefore, the shirt would have to have been open or lifted out of the trousers, so that the skin of the abdomen was capable of being struck directly. (b) In my opinion, from test firings (testing and observations outlined in paragraph (14c) of my certificate dated 22 July 1998), THE DAMAGE NOTED TO THE POLICE SHIRT IS COMPLETELY CONSISTENT WITH PELLET IMPACT. It cannot be ignored or dismissed as being not connected to this incident. (c) I restate my opinion as outlined in paragraph (16a) of my certificate dated 22 July 1998, this being that the damage to the front lower right side of STARR's Police shirt is consistent with having been caused by the impact of a pointed air gun pellet fired from a .177 calibre (4.5mm) firearm, with the muzzle held in hard contact with the material at the time of discharge. Of course, it is POSSIBLE, that the damage has also been caused by some other unknown means that coincidently mimics the features of pellet impact as outlined. 293 Sergeant Roach then went on to state that in relation to the recovery of the object from the applicant's abdomen, he could state the following: My examination of STARR's Police shirt, showed evidence consistent in appearance with the shirt having been impacted by a .177 calibre air rifle pellet discharged from a firearm, the muzzle of which was held in hard contact with the material at the time. I concede that it is POSSIBLE that this damage has also been caused by some other unknown means that coincidently mimics the features of pellet impact as outlined earlier. The shirt was impacted BUT NOT PENETRATED, therefore whatever stuck it COULD NOT HAVE PASSED INTO THE BODY. 294 As discussed earlier in this decision, Mr Docking objected to the evidence of Sergeant Roach concerning the damage to the applicant's shirt. It will be remembered that the evidence was admitted. In any event, Sergeant Roach was cross-examined in relation to his assertions that there had been no penetration of the applicant's shirt. He eventually conceded that there had been a breach in a fibre of the shirt and that a pellet or other object may have entered the shirt. Submissions concerning the Discovery of the Metallic Object 295 The applicant submitted that the claimed expulsion of the metallic object from the applicant's abdomen, being information not in existence at the time of his removal from the Police Service and not capable of being known to the respondent, is not relevant to the central question as to whether the removal was harsh, unreasonable or unjust: see Bankstown City Council v Paris (1999) 100 IR 363 at 370. The matter is only relevant in resolving the substantive issue, it was contended, as a matter of credibility. 296 During closing submissions, Mr Docking conceded that the evidence as to the object was set out in the applicant's own statement in support of his application for relief and was presented as such during the proceedings. It was suggested to Mr Docking that, as a result, the evidence could be used in resolving the substantive issue as to whether the applicant shot himself with the weapon found in the boot of his car. However, Mr Docking submitted that ultimately these later events were a matter of credit and should be properly treated as such. 297 In any event, it was submitted by Mr Docking that the discharge of the metallic object and associated medical evidence supported the applicant's contention that he did not wound himself on 25 April 1998. It was submitted that the question of whether the applicant suffered a penetrating wound must be resolved in his favour. Mr Docking submitted that the Commissioner had failed to satisfy the evidentiary burden of demonstrating that the object had been introduced into the applicant's body at some later time. 298 It was submitted that the question of a penetrating wound and the metallic object should be resolved by analogy to the approach adopted by Peterson J in Department of Corrective Services v Public Service Association Amalgamated Union of New South Wales (unreported, Peterson J, Matter No. IRC3890 of 1998, 2 October 1998). There was conflicting medical evidence and conflicting evidence in relation to the medical records as to the existence of a penetrating wound when the applicant was first examined on 25 April 1998. Where there is uncertainty in the medical evidence and no attempt was made to interview the medical practitioners or the health workers or call them to give evidence in the proceedings, the matter should, it was contended, be resolved in favour of the applicant. 299 Mr Docking drew attention to the following evidence of Dr Lakshmanan supporting the applicant's contention that there was a penetrating wound and the metallic object had entered his body on 25 April 1998: (i) A laparoscopy is a specific procedure for gall stone removal or hernia removal or small ovarian cysts whereas the metallic object is much smaller (ii) The object would not be in the abdominal cavity if it was swallowed. It is humanly impossible to get it out through the mouth or through the stomach into the abdominal cavity. (iii) Three millimetres is the sort of depth that was required for penetration to have an object floating in the way described. The skin is very elastic and pliable. A small amount of entry wound is enough for a bigger object to be lodged inside the abdominal cavity. (iv) Sometimes if it is hiding or floating behind fat, x-rays wouldn't be able to pick it up. (v) The abdomen is like a Pandora's box. (vi) The amount of blood stain which had penetrated the metal object meant it had been there for months and months, maybe more than a year or two. 300 It was noted that Dr Lakshmanan had 28 years of experience with live patients and thus has an advantage over Dr Cala, who has not examined the applicant in person. According to Mr Docking, Dr Cala conceded to this point when he said, "I am not a clinician. I am a specialist pathologist and I leave examination of live patients to doctors who do that regularly." Mr Docking relied upon this statement to support the submission that Dr Lakshmanan's evidence should be preferred. 301 Mr Docking noted that Dr Lakshmanan's evidence was to be preferred because Dr Cala did not make inquiries with the person who took the x-rays of the applicant. It was submitted a mistake could have been made during the x-ray or laparoscopy which failed to detect any object in the abdomen. In addition to this, no objection was made to the evidence of Dr Fulham as relayed through Dr Lakshmanan; Dr Fulham being the specialist surgeon consulted by the applicant who predicted that the metal object would eventually work its way out of the applicant's body. 302 Mr Willis submitted that the evidence of Dr Lakshmanan, to the effect that the object floated around in the applicant's abdomen for 18 months and could have been missed on x-rays, should be rejected. There was no abnormality or penetrating injury and no breach of the dermis detected during the laparoscopy. Further, in Dr Cala's opinion, it was medically impossible that this object floated around inside the applicant's body for 18 months. Further, the object could not have entered the applicant's body without first penetrating his shirt and the damage to the shirt was inconsistent with it being penetrated by the metallic object. It is more likely that the object was introduced into the body of the applicant sometime after 25 April 1998. 303 The Commissioner submitted that alleged expulsion of the metallic object was a matter relevant both to the applicant's credibility and the question as to whether his removal was harsh, unreasonable or unjust. Mr Willis submitted that the Commission should not find the applicant to be a witness of truth if he manufactured this later occurrence. Further, it was contended that the applicant manufactured this incident to assist with his case. It was further evidence of his "disturbingly untruthful behaviour", exemplifying his unsuitability to continue as a police officer. Mr Willis contended that if it was found that this incident was manufactured then the Commissioner was entitled to rely upon it to support the removal of the applicant. Consideration of Later Conduct 304 The assessment of the evidence adduced in these proceedings, in relation to the alleged discharge of the metallic object from the applicant's body, undoubtedly presents a number of difficulties. Particular problems are presented in resolving the factual questions raised as a result of direct conflicts which arose between the medical evidence given by Dr Lakshmanan and Dr Cala. The conflicts in the evidence of the two doctors concerned abstract medical questions, particularly whether it was possible for a metal object to be missed on an x-ray, whether it was possible for an object to be expelled from the body at the same point of its entry and whether it was possible to ascertain the cause of an infection by examining the wound. Further difficulties were created by the fact that doctors who examined the applicant at Liverpool hospital immediately following the shooting incident were not called to give evidence in these proceedings. 305 Where a court is called upon to resolve a conflict in expert testimony, the tribunal of fact can do no more than apply logic to evaluate the opinions and to determine where the truth lies: see Ramsay v Watson (1961) 108 CLR 642 at 645. Of course, the assessment of the opinion must be based on findings of fact which form its basis and the logical steps which led to the expert's conclusion: see NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 at 311. In Holtman v Sampson (1985) 2 Qd R 472, the Queensland Court of Appeal considered the proper approach to the evaluation of expert evidence. The court stated (at 474): A primary tribunal's duty is to find facts and, when expert evidence had been given, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness but to examine the substance of the opinion expressed. In cases where the experts differ the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view it to be preferred or which parts of the evidence will also involve questions of credit and credibility. 306 In Ahmedi v Ahmedi (1991) 23 NSWLR 288, Kirby P (as he then was) similarly stated (at 291): An expert's opinion is only as persuasive as the facts upon which it is based. Many are the cases in which expert opinions must be rejected because the factual hypotheses upon which they are based are not made out in the evidence: see generally Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846; Lynch v Lynch (1966) 8 FLR 433; 84 WN (Pt 1) 315 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 255. Just as many opinions have been rejected because of the inadequacy of the facts to support it … courts do not have to accept an expert's opinion simply because it is voiced by a person with expert qualifications. Courts and parties before them are entitled to test the opinion expressed, scrutinising the premises upon which it is based and evaluating its internal logic. See also the approach adopted in WorkCover Authority of NSW v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at 99. 307 As a general observation, I preferred the evidence given by Dr Cala to the evidence given by Dr Lakshmanan. In my view, Dr Cala possessed a range of expertise and experience which was more pertinent to important questions which were required to be considered in this case. Dr Cala is a specialist forensic pathologist and has broad experience in conducting autopsies and examining gunshot wounds. Whilst Dr Lakshmanan is a doctor of significant experience, his work has been in general practice. This work would result in less specific experience or expertise in assessing wounds of the type under consideration in this case. Having viewed the two doctors giving evidence, I consider that the evidence of Dr Cala was more balanced than that given by Dr Lakshmanan. Further, Dr Lakshmanan's views were undermined at some points. For example, in relation to whether it was possible to ascertain whether an object had been expelled by examining the wound. The evidence of Dr Cala, in contrast, was given in a forthright manner and was not successfully challenged in any substantial respect. 308 It was submitted by Mr Docking that Dr Lakshmanan's evidence should be preferred because he had the advantage of directly treating the applicant. Dr Cala was restricted to viewing medical documents prepared by medical staff who treated the applicant. I do not consider that this advantage was decisive in this case. A number of critical issues concerned abstract medical questions in relation to which direct observation of the applicant provided no advantage. For example, in relation to whether a metal object is likely to be missed on an x-ray or whether it is possible for an object to be expelled from the body at the same point it entered. Furthermore, Dr Lakshmanan treated the applicant in August 1999, but did not observe the wound again until after the object had been expelled from the applicant's body. As such, the doctor had no opportunity to observe the inflammation that developed around the applicant's wound prior to 19 November 1999. This reduced the extent of any advantage he may have had as a result of treating the applicant. 309 Having considered the medical, forensic and other evidence before the Commission, I am not satisfied that the object claimed by the applicant to have been expelled from his body on 19 November 1999 entered his body as a result of the shooting incident which took place on 25 April 1998. I have arrived at this conclusion for a number of reasons. 310 Firstly, the medical reports from the applicant's treatment at Liverpool hospital indicated that no object was detected by the x-ray or laparoscopy conducted immediately after the incident. Dr Lakshmanan gave evidence that it was possible for such an object to be missed on an x-ray if hidden behind fat, for example, and that a laparoscopy is not the appropriate procedure to detect an object of that size. I am prepared to accept that an object may be missed in a laparoscopy (as Dr Cala did not take issue with this proposition). However, whilst it is always possible for a mistake to be made, in the circumstances of this matter, it is unlikely that a metal object would be obscured on an x-ray. Whilst some objects may be obscured in an x-ray, Dr Cala gave evidence that a very dense object like metal would always show up on a plain abdominal x-ray. This evidence conforms to logic and commonsense. This is not a matter that depends on direct treatment of the applicant. 311 Secondly, the medical records from the applicant's treatment at Liverpool hospital indicated that there was a wound to a depth of 3mm in the applicant's stomach. However, the laparoscopy indicated that there had been no penetrating injury and that the dermis had not been breached. Dr Lakshmanan indicated that 3 mm would be sufficient penetration for an object to enter the body because the abdominal wall is very thin. However, in my view, the wounds received by the applicant make it unlikely that the object would have entered the applicant's body on 25 April 1998. Dr Cala stated that if the object had been projected with sufficient velocity to breach the skin it would have caused damage to internal organs or other abdominal structures. Dr Lakshmanan gave no evidence in relation to this issue. No internal damage was detected by the laparoscopy or referred to in any other medical evidence before the Commission. 312 The view that there was no penetrating injury also draws support from the forensic evidence. As discussed earlier in this decision, there were some difficulties with the evidence of Sergeant Roach concerning the damage to the applicant's shirt. Sergeant Roach did eventually concede that a pellet or other object may have entered the shirt. However, it was not disputed that the damage to the shirt was relatively minor. Sergeant Roach consistently maintained that only one fibre had been breached in the shirt. This factor reduces the likelihood that the applicant sustained a penetrating wound which would have permitted the object to enter his body. More generally, however, I do not place any substantial reliance on the opinion of Sergeant Roach that the damage to the applicant's shirt was not consistent with being caused by the object said to have been later expelled from the applicant's body. 313 Thirdly, I have doubts concerning the plausibility of an object being expelled from the same wound as it entered eighteen months after the original injury. The evidence of Dr Lakshmanan was that an object may emerge at the same point as a result of a weakening in the muscles at the site of the original injury. Dr Cala disagreed with this theory and stated that the possibility of an object emerging from the same wound was so remote as to be "almost impossible". Dr Cala stated that if an object entered the abdominal cavity it was likely to end up at the lowest point as a result of gravity. Furthermore, the evidence of Dr Lakshmanan, in relation to whether it was possible to ascertain whether an object had been inserted by examining the wound, was undermined on cross-examination. Dr Lakshmanan conceded the infection he observed on 19 November 1999 was consistent with an object being inserted into the applicant's stomach and then expelled. 314 Finally, there was disagreement concerning whether it is possible to judge how long a metal object has been present in the body by observation of its condition. Dr Lakshmanan stated that he was of the opinion that the object had been present in the applicant's body for a considerable period of time. Dr Cala disagreed that this was the case. I am unable to resolve this question on the evidence presented in this case. However, I consider that the evidence of the applicant's mother and Dr Lakshmanan is not sufficient to establish that the object had been in the applicant's body for an extended period of time. 315 It is appropriate to mention the evidence provided in the reports of Sergeant Roach and Mr Barber concerning the nature of the metallic object. Both experts agreed that the object was not a commercially produced air rifle pellet. The experts also agreed that it was not possible for the object to have been fired from the air rifle found in the boot of the applicant's car. Mr Barber added that there was, to his knowledge, no commercial firearm that discharges a single steel ball of the diameter of the object. It was possible the object could have been fired by some home-made device. Whilst this evidence established that the object could not have been fired from the firearm found in the applicant's car, it begs the question as to whether the object did, in fact, enter the applicant's body as a result of the events of 25 April 1998. 316 One additional matter to be considered was the evidence that the applicant was referred to a surgeon, Dr Fulham, in August 1999, who arranged for an ultrasound and x-ray examination to be conducted. The applicant and Dr Lakshmanan gave evidence to the effect that a metallic object was detected and that Dr Fulham advised that no further action be taken at that time and that it was appropriate to wait and see if the object worked its way out of the body. I do not consider that the evidence of Dr Fulham assisted the applicant's case to any greater extent than establishing that a metallic object was present on x-rays conducted in August 1999. Dr Fulham's opinion, as conveyed by Dr Lakshmanan, that the object may work itself out of the applicant's body does not add to the evidence of the other two doctors. It was not contested that objects may, in some circumstances, work their way out of the body after varying periods of time. The question was whether it is likely this object would have been discharged from the applicant's body in the manner described by the applicant. The evidence concerning Dr Fulham did not impact upon this issue. 317 The fact that a metallic object was detected in August 1999 could have been of importance in relation to the issue concerning the discharge of the metallic object. That evidence could have demonstrated conclusively that the metallic object was present in the applicant's body at that time and substantiated the applicant's contention that the object had been present since the incident on 25 April 1998. As it is, the Commission was presented only with evidence that an object was detected and the opinion that the object may work its way out of the body of the applicant. Dr Cala suggested a number of explanations as to how an object may have later appeared on x-rays taken in August 1999. The x-ray reports tendered in evidence only indicate that an object did appear on the x-rays and do not assist in establishing whether this could have been achieved by some form of fabrication. Dr Fulham may have been able to give evidence as to the possibility of the x-ray result having been fabricated or the likelihood of the object being missed on the x-rays taken at Liverpool Hospital earlier in time. However, he was not called to give evidence in these proceedings. Nor did the Commission have evidence from Dr Fulham as to the likelihood that the metal object had persisted in the applicant's body from the day of the incident or whether the applicant's evidence as to the emergence of the metallic object from his body was medically possible having regard to his observations of the applicant and his medical opinions (including his advice that the object may work its way out of the applicant's body). On balance, when weighed against the other evidence, I consider that the presence of the object in the x-rays taken in August 1999 does not demonstrate that the object, so detected, was related to the incident which occurred on 25 April 1998. 318 It is not possible, on the evidence before the Commission, to come to a definite view as to what occurred in relation to the metallic object. As a corollary of the finding I have made, it must be presumed that the object was introduced by the applicant into his body some time after 25 April 1998. It is not necessary to make a determination as to how or when this occurred. It is sufficient to note that the applicant must have acted in such a manner as to allow the object to appear in x-rays in August 1999 and emerge from his body in November 1999. I do not accept the applicant's evidence as to how the metallic object entered his body. 319 These are the factors I have considered in coming to the conclusion that the object that the applicant claimed had been expelled from his body on 19 November 1999 did not enter his body as a result of the injury he received on 25 April 1998. It should be pointed out that I do not regard any individual factor as decisive. Rather, I consider that when taken together the matters mentioned support this conclusion. Was the Removal Harsh, Unreasonable or Unjust? 320 A question must then arise as to the relevance of the finding in relation to the later conduct of the applicant to the issue of whether the applicant's removal was harsh, unreasonable or unjust. The general rule at common law is that facts which come to light after a dismissal may be relied upon in defending a decision to terminate the employment of a worker, provided those facts existed at the time of the dismissal: see Boston Deep Sea Fishing v Ansell (1888) 39 Ch D 339. Both this Commission and other courts have adopted the same approach in unfair dismissal proceedings. In Byrne v Australian Airlines Ltd, for example, Brennan CJ, Dawson and Toohey JJ stated (at 430): … facts which existed at the time of dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable. 321 The High Court in Byrne referred to the decision of Von Doussa J in Lane v Arrowcrest Group Pty Ltd at 456. This approach was followed by Full Benches of this Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 327 and Bankstown City Council v Paris. In the latter case, the Full Bench stated (at 370): There is no question that the Council was entitled, indeed obliged, to investigate and later rely upon information obtained after dismissal. This Commission and its predecessors have never accepted the proposition that an employer dismissing an employee is confined necessarily to the reasons advanced to the employee at the time of dismissal. If relevant circumstances existed at the time of dismissal of which the employer was unaware but which would either themselves or in concert with the reasons advanced, support the dismissal, they may be relied upon. 322 Conduct of an applicant occurring after the date of dismissal, however, may be relevant when determining any remedy to be ordered following a finding of unfairness. In Hollingsworth, the Full Bench noted the decision of the former Industrial Commission in Court Session in Retail Traders' Association of NSW v Shop, Distributive & Allied Employees' Association (1990) 36 IR 38, where it was stated (at 52): On this aspect of the case the emphasis will naturally be upon what occurred at, or leading up to, the termination and, in some cases, earlier occurrences. But when, after a finding of unfairness, the tribunal moves to the second stage, a consideration whether, as a matter of discretion, the employee should be reinstated in employment, relevant matters occurring after the termination may also certainly be taken into account and may indeed be so influential as to convince the tribunal that an award of reinstatement should not be made. 323 It is also appropriate to refer to the decision of the Australian Industrial Relations Commission in Printing and Kindred Industries Union v Vista Paper Products (unreported, Decision 1357/1991, Deputy President Riordan, 13 December 1991). In that case, the employer dismissed certain employees and the dismissed employees subsequently took part in picketing resulting in angry clashes with representatives of the employer. The employer subsequently sought to justify the dismissal by reference to the actions of the dismissed employees after their dismissal. The Deputy President considered that the later conduct could be relevant only to the question of whether there had been such a breakdown in the relationship between the dismissed employees and their employer that the restoration of a proper employment relationship was impossible. 324 As such, the general approach in unfair dismissal cases is that conduct or events occurring after a dismissal will not be relevant to the determination of whether that dismissal was harsh, unreasonable or unjust. This can be contrasted with after acquired knowledge of events occurring prior to dismissal that may be relevant when assessing whether the dismissal was unfair. However, it is conceivable that later conduct may be relevant in some limited cases where, for example, an applicant denies the alleged misconduct and the later conduct casts some light on events occurring prior to the removal. In any event, in unfair dismissal cases generally, later conduct will be relevant to the exercise of the Commission's discretion under s89 of the IR Act following any finding that the dismissal was harsh, unreasonable or unjust. 325 The approach adopted in unfair dismissal cases will generally be applicable in proceedings brought under s181E of the Act. In this regard, it is relevant to note that s181G applies the unfair dismissal provisions of the IR Act to an application for review brought under the Act: see Van Huisstede at 108. However, s181F(1) does have the potential to alter the approach generally adopted by the Commission. As has been discussed, that section requires the Commission to conduct its review in three stages, first considering the Commissioner's reasons, then the case presented by the applicant and finally the case presented by the Commissioner in answer. As such, s181F(1) does influence the matters which may be taken into account in considering an application. Where the applicant brings into the proceedings facts and circumstances arising after his removal which bear upon the issues to be determined those matters must be taken into account in considering whether a removal was harsh unreasonable or unjust: s181F(1)(b). It is by this means that the later conduct of the applicant bears upon the determination in this matter as to whether his removal from the Police Service was harsh, unreasonable or unjust. In any event, as properly conceded by Mr Docking, that conduct goes to the applicant's credit as a witness. 326 That does not mean, as was submitted by Mr Willis, that the Commissioner is entitled to justify the applicant's removal by reference to his later conduct alone. Section 181F(1) sets down the process to be adopted by the Commission in its deliberation. It does not dictate what that deliberation should concern. The determination that must be made under s181E is whether the removal was harsh, unreasonable or unjust. This will consist of an examination of the Commissioner's reasons and the entirety of the cases presented by the applicant and the Commissioner. 327 A matter which was not addressed during the proceeding was whether the behaviour of the applicant in claiming that the emergence metallic object corroborated his representations may be demonstrative of an inclination to engage in misleading or false representations or fabricate evidence. It may be that this issue was not raised by the Commissioner as a result of the complex legal and evidentiary issues such a submission would have raised. I do not consider that it is appropriate to attempt to resolve that issue in these proceedings. 328 It now falls to determine the substantive issue, that is, whether, on the evidence before the Commission, the applicant wounded himself with the firearm recovered from his car. In so doing, it is necessary to have regard to the evidence which existed at the time of the incident, as well as the later conduct of the applicant in so far as it fails to corroborate the applicant's version of events or undermines his credibility. Having regard to all the evidence, I have reached the conclusion that, on the balance of probabilities and applying the principles relating to onus discussed earlier, the Commissioner has made out a case that the applicant did wound himself with the weapon recovered from the boot of his car. 329 This conclusion has been reached, in part, as a result of the difficulty of accepting the veracity of the applicant's account having regard to inconsistencies in his evidence. The applicant's evidence was undermined at a number of significant points. In particular, I find that the applicant's account is not consistent with the transmissions made by him on the police radio, as recorded on the VKG tape. The applicant stated in a straightforward manner over the radio that one of the men was armed. This statement is inconsistent with his repeated evidence that he did not see the weapon used to wound him and was not certain of what had occurred. Having reviewed the VKG tape, it is not plausible that this statement would have been made in circumstances in which the applicant had been wounded by an unknown cause. When confronted with this inconsistency, the applicant unconvincingly suggested that he had formed the view that one of the men was "possibly" armed. This doubt as to the applicant's evidence is compounded when considered against the conflicting evidence of the officers who attended the applicant on the ground. 330 The doubts in the applicant's evidence are significantly increased by the serious later conduct concerning the metallic object. It has been concluded above that the applicant must have introduced the object into his body some time after 25 April 1998. This conduct demands a re-examination of the veracity of all the applicant's evidence. In the circumstances of this case, I consider this conduct substantially undermines the applicant's reliability as a witness. 331 The conduct of the applicant in these proceedings is directly relevant to the actual determination of the substantive issue in two ways. Firstly, the applicant raised this matter as corroboration of his earlier account of events. Upon examination, it was demonstrated that the alleged discharge of the metallic object was not to be related to the incident and this evidence failed to provide any corroborative support for the applicant's case. As such, a significant aspect of the applicant's case collapsed. Secondly, the course of conduct by the applicant after his removal went to undermine his credibility as a witness on his own account. His own evidence was, of course, a most significant aspect of his case. 332 When the substantial doubts as to the veracity of the applicant's account are combined with the circumstantial evidence led by the Commissioner, I conclude that the Commissioner has satisfied the evidentiary burden of demonstrating that the applicant did wound himself with the firearm found in his car. It was undisputed that the applicant did have an air rifle in the boot of his car at the time of the incident which was capable of causing the injuries sustained by him. He was in the proximity of the car immediately prior to sustaining his injuries. Although doubts were cast on the examinations of the applicant's shirt made by Sergeant Roach, it remains a possibility that the damage to the shirt and the injuries sustained by the applicant were caused by the weapon found in the applicant's car. I do not consider that the circumstantial evidence favouring the applicant is cause for reaching a different conclusion. That evidence was, in some respects, equivocal in relation to the determination of the substantive issue. 333 I have considered the absence of any motive suggested for the applicant's actions. No reason was advanced by the Commissioner for the applicant shooting himself. Nor does any reason readily suggest itself from the facts of this matter. This consideration favours the applicant's case. However, it is ultimately difficult to see how this consideration could negate the weight of the evidence against the applicant's case. Mr Willis was correct, in my view, in submitting that the applicant's conduct, if proven, would be considered a serious matter regardless of the reasons for it. 334 It is necessary to consider the deficiencies in the process adopted by the Commissioner in making the order under s181D, particularly the failure to have regard to all the available and relevant evidence. As discussed earlier in this decision, the Commissioner failed to have regard to relevant information, namely, the transcript of the Local Court proceedings against the applicant. As a result of the failure of the Commissioner to obtain this evidence, he was not aware of a number of deficiencies in the evidence against the applicant, most notably the concessions made by Sergeant Roach concerning the strength of the ballistics and DNA evidence. Whilst I have earlier determined that this factor did not, of itself, warrant a determination in favour of the applicant, the question arises as to whether the failures of the Commissioner in this respect might nonetheless warrant at this juncture a finding that the removal was unreasonable or unjust. 335 Having revisited this consideration, however, I am of the view that the procedural deficiencies in this matter does not warrant a finding that the dismissal was unreasonable or unjust. As earlier discussed, the nature of those procedural deficiencies in this case is such that those deficiencies do not, of themselves, warrant such a finding. Further, the seriousness of the conduct of the applicant is such that I have formed the view that the applicant's removal from the Police Service was not unreasonable or unjust, notwithstanding the flaws in the Commissioner's reasoning. 336 In the light of these considerations, I do not consider then that the removal of the applicant from the Police Service was unreasonable or unjust. 337 I have also considered whether the removal of the applicant was harsh having regard to the circumstances of his removal and his prior good character. The applicant had been employed in the Police Service since July 1994, initially attached to the Security Management Branch where he rose to the position of Officer in Charge of Identifications in two years. Since joining Fairfield station in February 1997, he received a number of commendations for his work, including favourable reports in which his colleagues praised the applicant for good policing skills. In addition, a large number of character references from colleagues were tendered in these proceedings, as well as a number of awards and commendations received by the applicant including a nomination for the Fairfield Rotary Club's "Police Officer of the Year" in 1998. The applicant's removal from the Police Service was undoubtedly a severe penalty in light of his promising career as a police officer and his stated enthusiasm for police work. However, having considered the overall seriousness of the conduct of the applicant, I am unable to conclude that the applicant's removal was too harsh a penalty in the circumstances of this case. 338 In all of these circumstances, I find that the removal of the applicant from the Police Service was not harsh, unreasonable or unjust. 339 When assessing if a removal was harsh, unreasonable or unjust in proceedings brought under s181E, the Commission is required to consider the interests of the applicant and the public interest (which is taken to include the interest of maintaining the integrity of the Police Service and the fact that the Commissioner has made an order pursuant to s181D(1)): see s181E(3) of the Act. The public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so: see Van Huisstede at 110. Although s181E(3) does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer, the effect of the section is to direct the Commission's attention to the important public interest in ensuring that unsuitable or incompetent officers are not permitted to remain in the Police Service. In this case, I consider that the public interest in maintaining the integrity of the Police Service supports the conclusion that the removal of the applicant was not harsh, unreasonable or unjust. 340 In any event, if it had been concluded that the applicant's removal from the Police Service was harsh (warranting a finding, as such, under s84 of the IR Act), it would not, in my opinion, have been appropriate to give any remedy. Having regard to the later conduct of the applicant, it would not have been appropriate to order the re-instatement or re-employment of the applicant or to order any payment by way of compensation. 341 I order that the application be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.