Industrial Relations Commission of New South Wales CITATION: Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 APPLICANT Bradley George Hosemans PARTIES: RESPONDENT NSW Police FILE NUMBER(S): IRC 1820 of 2003 CORAM: Boland J CATCHWORDS: Police - Removal of police officer under Commissioner's confidence provisions of Police Act 1990 - Conduct and integrity - Application for relief - Whether removal harsh, unreasonable or unjust - Review process - Criminal prosecution of police officer in Local Court - Charges in Local Court dismissed - Allegations by Commissioner of Police of assault, attempted indecent assault, indecent exposure and untruthfulness - Credit of witnesses - intoxication - Substantive unfairness - Procedural unfairness - Commissioner's obligations in conducting investigation - Provision of documents and material to police officer by Commissioner - Delay in removing police officer - Severity of penalty of removal - Application for relief refused Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Crimes Act 1900 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434 Oswald v New South Wales Police Service (No. 2) (1999) 90 IR 42 Bradley George Hosemans and NSW Police Service [2003] NSWIRComm 396 Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 Briginshaw v Briginshaw (1938) 60 CLR 336 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Dangerfield v Commissioner of Police [2003] NSWIRComm 96 DPP v Woolfe & Hosemans (Deputy Chief Magistrate G Henson, Bathurst Local Court, 19 July 2002) Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 CASES CITED: Humphries v Cootamundra Ex-Services & Citizens Memorial Club Limited (2003) 128 IR 37 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Newton v New South Wales Police Service (No 2) (1999) 87 IR 66 Owens v New South Wales Police Service (1998) 87 IR 1 R v Anderson, Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 Regina v Christine Gay Fish and John Gordon Swan [2002] NSWCCA 196 SDA NSW Branch v Jewel Food Stores (1987) 22 IR 1 Starr v Commissioner of Police [2001] NSWIRComm 226 Tickner v Chapman (1995) 57 FCR 451 Van Huisstede v Commissioner of Police (2000) 98 IR 57 HEARING DATES: 04/12/2005 DATE OF JUDGMENT: 05/27/2005 APPLICANT Mr B Docking of counsel Solicitor: Mr K Madden Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT Mr R Kenzie QC with Mr R Reitano of counsel Solicitor: Ms M Buchanan NSW Police Legal Services JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Boland J Friday 27 May 2005 Matter No IRC 1820 of 2003 BRADLEY GEORGE HOSEMANS v NEW SOUTH WALES POLICE (No 3) Application by Bradley George Hosemans for review of an order under s 181E of the Police Act 1990 JUDGMENT [2005] NSWIRComm 161 Index INTRODUCTION 2 REMOVAL OF MR HOSEMANS FROM NSW POLICE 2 LOCAL COURT PROCEEDINGS 5 CLAIM FOR RELIEF - INDUSTRIAL RELATIONS COMMISSION 6 Proceedings before Haylen J 7 Findings on appeal 6 Approach in current proceedings1 12 EVIDENCE 14 RELEVANT BACKGROUND 22 CASE FOR THE APPLICANT 36 CASE FOR THE RESPONDENT 37 SUBSTANTIAL UNFAIRNESS 39 Credit of Ms Parkes 40 Intoxication 44 Assault and attempted indecent assault 48 The exposure incident 53 The lifting incident 57 Alleged untruthful evidence 61 PROCEDURAL FAIRNESS 65 DELAY IN DECISION TO REMOVE APPLICANT 94 WHETHER PENALTY OF REMOVAL TOO SEVERE 96 CONCLUSION 99 INTRODUCTION 1 Bradley George Hosemans ("the applicant") was a Detective Sergeant with the New South Wales Police stationed at Bathurst. He was also Deputy Mayor of that City. By order made under s 181D(1) of the Police Act 1990 the Commissioner of Police declared that, having considered the applicant's conduct and integrity, he did not have confidence in Mr Hosemans' suitability to continue as a police officer, and Mr Hosemans was removed from the Police in March 2003. 2 Prior to his removal, criminal charges had been laid against Mr Hosemans in the Bathurst Local Court relating to alleged conduct that led to his removal from the Police. Those charges were all dismissed in July 2002, although not without harsh criticism of Mr Hosemans by the Court as a person not to be believed. Following his removal, Mr Hosemans sought a review pursuant to the provisions of s 181G of the Police Act of the decision to remove him. That led to three proceedings in this Commission, including the current proceeding. The first of these was before Haylen J in Bradley George Hosemans and NSW Police Service [2003] NSWIRComm 396. His Honour gave judgment in September 2003 and was unable to find that the penalty of removal was harsh, unfair or unreasonable. An appeal followed (Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253) and the Full Bench found that Haylen J was in error as to the review process he was required to undertake. The Full Bench upheld the appeal and decided that the most appropriate course was to remit the matter for proper consideration and determination, hence these current proceedings. REMOVAL OF MR HOSEMANS FROM NSW POLICE 3 On 10 December 2002, the Commissioner directed a Notice to the applicant under s 181D(3)(a) of the Police Act indicating that the Commissioner was considering Mr Hosemans' suitability to continue as a police officer taking into account his: Conduct and Integrity, on the basis of the following grounds: 1. On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you assaulted "the complainant" by taking hold of the front of her shirt and pulling her to the bar. You then attempted to indecently assault "the complainant" by grabbing at her breasts. 2. On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you exposed your penis. Your behaviour was inappropriate and contrary to the Police Code of Conduct. 3. On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you assaulted "the complainant" by placing both your arms around the vicinity of her waist and buttocks and lifting her bodily off the ground. As a result of your actions "the complainant" received bruising to the back of her legs and tenderness to her rib areas. 4. That you were untruthful in giving evidence at Bathurst Local Court in May 2001 (sic-2002) during the hearing of these matters in relation to: - Your evidence in regard to the charge of exposing your penis; - Your evidence regarding yourself and "the complainant" in lifting her bodily off the ground; - That you gave a false account in regards to the telephone message left by you on "the complainant's" mobile phone on 21 October 2001. 4 In accordance with s 181D(3)(b) of the Police Act, Mr Hosemans was provided with the opportunity to make a submission within 21 days in relation to the proposal to remove him. This was done but it did not dissuade the Commissioner from making an order under s 181D(1) of the Police Act. The Commissioner's "Statement of Reasons" attached to the order were in the following terms: I am required to make a determination under s181D (1) of the Police Act 1990 in respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you pursuant to s181D (3)(a) of the Police Act 1990 , together with your written submission provided through your solicitor in response to the grounds set out in my Notice. Those grounds refer to the criteria of your conduct and integrity and relate to your indecorous behaviour towards a female and your untruthfulness while giving evidence under oath in a Local Court. I provide the following as the reasons for my determination. I have carefully read through and given careful consideration to all of the material that has been presented to me in this matter. The material discloses that you on the evening of 20 October 2001 at the Bathurst Golf Club assaulted, then attempted to indecently assault a female employee of the Bathurst Golf Club by grabbing at her breast, you exposed your penis to her. As a result of your actions, the female employee suffered injuries to her person requiring her to seek the services of a medical practitioner. At the Bathurst Local Court in May and July 2002, charges preferred against you were dismissed. The Chief Local Court Magistrate on a number of occasions in his summation was openly critical of the evidence given by you and formed the opinion that you lied under oath and you are not a truthful person. I note in your response to my Notice as to why I should not lose confidence in you, that you offer a general denial as to your conduct, not only do you show no contrition for your behaviour, you are also critical of comments made by the Deputy Chief Magistrate of the Bathurst Local Court when His Worship addressed your integrity. Your conduct is viewed as most serious and inexcusable, particularly in view of your office and the position of authority you hold as Detective Sergeant at Chifley Local Area Command. I believe that you have betrayed your position of trust both to the New South Wales Police and the wider community. As I have stated, I have carefully reviewed all of the material associated with this matter, which I stated is very serious. I see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police. I therefore remove you from your position as a police officer. K E Moroney Commissioner of Police Date: 24 March 2003 LOCAL COURT PROCEEDINGS 5 Following the incident at the Golf Club in October 2001, Ms Karen Parkes (Ms Parkes later married and at the time she gave evidence in this current proceeding she did so under the name of Mrs Karen Johns) made a complaint to the Police. Ms Parkes had been employed as a bar attendant at the Club and alleged that, during the course of the evening, the applicant, in a number of separate incidents, firstly grabbed at her breasts, secondly exposed his penis and thirdly assaulted her. Criminal charges were laid against the applicant and another person, Steven Geoffrey Woolfe, alleging aggravated indecent assault. Mr Hosemans was also charged with wilful and obscene exposure and assault occasioning actual bodily harm. 6 The charges were heard at the Local Court in May and July 2002. Each charge was dismissed. The Deputy Chief Magistrate found that the Bathurst Golf Club was not a public place and, therefore, an essential element of the charge of indecent exposure could not be made out. In relation to the aggravated indecent assault, the Magistrate concluded that in the company of Mr Woolfe the applicant had, indeed, attempted to pinch or grab at the complainant's breasts but had failed to make contact with her breasts and the charge, having failed to allege an attempt at such action, therefore failed. In relation to the charge alleging assault occasioning actual bodily harm the Magistrate found that the Crown had not established a guilty mind, an element of the offence. 7 Whilst the charges were dismissed, the Deputy Chief Magistrate was strongly critical of Mr Hosemans and a number of other witnesses. His Honour concluded that Mr Hosemans (and Mr Woolfe) was not a person to be believed; that he did in fact expose his penis during the course of the night as alleged by the complainant; and, that he lied about this incident and other matters in the course of giving his evidence. His Honour said in the course of his judgment: I have already indicated that I regard the witnesses Kelly and Constable to be not truthful in the giving of their evidence and that I have formed the view that they were not the only ones. I did not mean at the time that I made that statement that the other two were the defendants Hosemans and Woolfe although it is abundantly clear that they are not to be believed on their oath. Throughout these proceedings there has been the permeating odour or undercurrent of cover up and deceit. That the defendants would seek to involve themselves in an attempt to mislead the Court, while dishonourable and cowardly is understandable … 8 It will be necessary to return to the Local Court proceedings in more detail shortly. CLAIM FOR RELIEF - INDUSTRIAL RELATIONS COMMISSION 9 In the Notice of Review filed by the applicant pursuant to the provisions of s 181G of the Act, which sought relief by reinstatement, the following grounds were stated: The applicant's removal from the Police Service is harsh, unreasonable and unjust because - 1. The Commissioner of Police has not given sufficient, and, or, proper reasons, for removing the applicant from the Police Service. 2. The Commissioner of Police failed to consider all relevant facts relating to the incident, which led to the applicant being served with a s 181D Notice and likewise when he subsequently removed the applicant from the Police Service, and the Commissioner took into account irrelevant matters when he determined to serve the Section 181D Notice on the applicant and when he determined to remove him from the Police Service. 3. In other respects, the process that resulted in the applicant being removed from the Police Service is so flawed that the order removing him from the Police Service is wrong at law and therefore unjust. 4. The applicant was denied procedural fairness. 5. The Commissioner of Police failed to comply with the requirements of s 181D of the Police Act (NSW) in that he failed to reach an independent decision when he determined to serve the 181D Notice on the applicant and likewise when he determined to remove the applicant from the Police Service. The applicant submits that even taking the Commissioner's case at its highest, his removal from the Police Service is harsh, unreasonable or unjust. Proceedings before Haylen J 10 The applicant's claim for relief came before Haylen J in September 2003. The approach taken by his Honour as to the nature of the review he was required to undertake under s 181E of the Police Act was explained at [142] of his decision: I propose to approach the task of review bearing in mind the views expressed by Powell JA in The Commissioner of Police v Donnelan and Hanson namely that the role on review is to determine that the decision made by the Commissioner was correct, rather than having the Commission make a fresh and independent decision itself: the question on review in the Commission resolves into an assessment of whether the decision to remove the applicant was harsh, unreasonable or unjust. I also bear in mind that the power exercised by the Commissioner, while it may be loosely described as a 'power to punish for an offence found to have been proved, is a power conferred on the Commissioner and is to be exercised by him for the protection of the public'. Bearing in mind the statutory scheme, I am also to consider the interests of the officer which will include consideration of the loss to the Police Service of an experienced detective in the case of this applicant. 11 Following this approach his Honour determined at [176]-[180]: 176 The applicant has now had the opportunity of canvassing all of these matters, in detail, in this review conducted before the Commission. The Commission was taken to numerous parts of the transcript and the statements given by various witnesses to the police in order to explore, in detail, the extent and consequences of each point. In a sense, this flaw in the process adopted by the Commissioner, has been addressed and rectified on review. Although I do not need to decide the issue, this may be one of the cases where, even if there was a denial of procedural fairness, the existence of a full right of review on fact and law to the Commission would remedy that defect (see R v Marks; ex parte Australian Building Construction Employees Builders Labourers Federation (1981) 147 CLR 471; Twist v Randwick Municipal Council (1976) 136 CLR 106; Calvin v Carr [1980] AC 574). Indeed, not every failure to follow fair procedure will lead to the conclusion that the dismissal was harsh, unreasonable or unjust ( Bigg v New South Wales Police Service (No 2) (1998) 80 IR at 460 ; Newton (1999) 87 IR at 77). 177 There will be cases, of course, where a denial of procedural fairness will be so central to the proper and fair disposition of the matter that the defect will be regarded as fundamental - this is not such a case. Indeed, a similar situation was faced by Staunton J in Dangerfield v Commissioner of Police [2003] NSWIRComm 96. In that case, in deciding to remove the police officer, the Commissioner did not view a video of the officer's action, the transcript of the Local Court proceedings, the Magistrate's findings or a number of photographs which formed part of the evidence in the Local Court. Her Honour concluded at paragraph [82] that all of the material now having been viewed, she could not agree with the submission that the officer had been denied procedural fairness in a way that significantly impacted upon the decision ultimately taken by the Commissioner and the reasons relied upon by him to remove the officer. Her Honour, having read all the material, decided that it would not alter the outcome - a consideration of the material would not alter the decision that was made by the Commissioner. I find myself in a similar position in this case. 178 On review of the material, I have not been able to conclude that the Commissioner acted capriciously or ill-advisedly or was uninformed in a relevant sense when he reached the decision to remove the applicant from the Police Service. Having found that there was a proper basis for the conclusions reached by the Commissioner, it is still necessary to consider whether the removal of the applicant from the Police Service is harsh, unreasonable or unjust. The applicant relied upon his previous good service, his community involvement and evidence of his good character including a reference from a member of the Bathurst Council. In this exercise, there is a balancing of the interests of the officer, the public interest and the fact that the Commissioner made the order under s 181D(1) and has declared his loss of confidence in the applicant. There was no material before the Commission as to any particular financial hardship, but it would be obvious to any industrial tribunal that the loss of secure employment would create difficulties, and when that employment is lost by a police officer it would have ramifications for the ability to seek employment elsewhere. 179 It is necessary to consider the decision on the Commissioner to remove Detective Hosemans in light of the findings I have made. Notwithstanding my own view in relation to the indecent exposure incident, and my finding that there was no assault of the complainant, I am unable to find that the penalty of removal is harsh, unfair or unreasonable. The applicant did attempt to grab at the breasts of the complainant despite his constant denials, including his evidence on oath before the Local Court. The Commissioner was entitled to conclude that he exposed himself and that he gave false evidence in relation to the indecent exposure incident and the telephone message. The seriousness of these findings are such that it cannot be concluded that the penalty of removal was harsh, unfair or unreasonable. The conduct of the applicant was inimical to his position and role as a police officer. 180 For the above reasons the application is dismissed. Findings on appeal 12 On appeal, the Full Bench stated at [84]: 84 In our view, Haylen J's decision demonstrates three fundamental errors of principle: first, his Honour incorrectly approached the matter as being a judicial review of an administrative decision rather than a full merit review; secondly, he adopted a wrong approach to the receipt of new evidence (or ignored evidence that had been admitted) contrary to s181G(1)(f) of the Police Act ; and thirdly, having admitted new evidence tendered by the appellant, he failed to properly determine whether the respondent had discharged the evidentiary burden of meeting the case which had been presented by the appellant. 13 The Full Bench proceeded to explain in detail the basis upon which it arrived at it view regarding the nature of the trial judge's error. At [137]-[145] the Full Bench stated: 137 In any event, notwithstanding the task to be undertaken as enunciated, his Honour then undertook the review process by considering all of the material including the new evidence before him. In doing so, his Honour did, in many respects, undertake the task that s181F required, that is, a fresh and independent review based on all of the evidence before him. Haylen J made the following findings in relation to each of the grounds identified in the Notice: (1) as to the first ground, that the appellant assaulted the complainant by grabbing at her shirt, Haylen J held (at [155]) that "my reading of all of the evidence confirms the correctness of the Commissioner's view"; (2) as to the second ground, that the appellant exposed his penis, Haylen J held (at [165]) that "Ultimately, I cannot say it was incorrect for the Commissioner to accept the very firm conclusions of the Magistrate in regard to this incident.."; (3) as to the third ground, that the appellant assaulted the complainant by lifting her off the ground and placing her on the bar, Haylen J held (at [170]) that "...I am unable to conclude that the Commissioner was correct in finding that the applicant assaulted the complainant in this incident"; and (4) as to the fourth ground, that the appellant was untruthful in giving evidence before the Local Court, Haylen J held (at [172]) that "The Commissioner was correct in deciding that the evidence given by the applicant to the Local Court was false". 138 He then went on to state (at [173]): In the manner in which I have analysed the evidence, I have considered the Commissioner's case. Except for ground 3, I have found, by an independent review of the evidence, the remaining grounds have been established by the Commissioner: that is, that the Commissioner was correct in coming to the view which he did on each of the three matters and there was a basis for such findings in the facts. 139 There were two flaws in his Honour's approach to that task. The first was the absence of any consideration of the evidence contained in para [2] of the affidavit of the appellant to which we have earlier referred. Despite the fact that it was admitted without objection, it was viewed as going only to the issue of what the appellant had been doing since his removal from NSW Police. As earlier set out, it also went to the very issue of the appellant's credibility and on that point was unchallenged. It was clearly part of the evidence that was before his Honour. In our view, it cannot be as easily dismissed as has been submitted and adds weight to our decision to find error and remit this matter for further consideration. 140 The second issue is the ultimate review process undertaken by Haylen J. In relation to the matters relied upon by the Commissioner to remove the appellant from NSW Police, his Honour did proceed to deal with each of the matters identified, considered all of the evidence before him, including the new evidence, and made his own findings. However, in relation to the second ground identified by the Commissioner, his Honour, in our view, failed to undertake an independent assessment of the facts but relied entirely upon the conclusions reached by the Commissioner. 141 The second ground identified in the Notice was as follows: On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you exposed your penis. Your behaviour was inappropriate and contrary to the Police Code of Conduct. 142 His Honour's erroneous approach can be ascertained by reference to his conclusion at [165] of his judgment as follows: Bearing in mind the importance of the issue, although I have very serious doubts about Detective Hosemans' version of the events, I would not be prepared, on a reading of the transcript alone, to make an adverse finding in light of the state of the evidence. There is good reason to exclude the evidence of Mr Kelly and Mr Sloane from consideration, leaving the competing versions of the applicant and the complainant. The question then arises, however, because it is not for the Commission to make a fresh decision, whether the Commissioner was correct in deciding that Detective Hosemans did expose himself that night. I am unable to say, on review, that the Commissioner was incorrect in forming the view he did. There was inconsistency in the surrounding evidence and there is some significance in the fact that the complainant did not feel affronted by the incident but regarded it as another episode of intoxicated behaviour occurring between the male members of Detective Hosemans' group. Ultimately, I cannot say it was incorrect for the Commissioner to accept the very firm conclusions of the Magistrate in regard to this incident when it was the Magistrate who was best placed to assess the circumstances and make that determination. (our emphasis) 143 In our view, his Honour was required to undertake a fresh review of that particular issue. He had before him all of the evidence that was before the Local Court and the affidavit of the appellant. On one view, his Honour harboured some reservations as to the conclusion drawn by the Commissioner when he stated at [165]: I would not be prepared, on a reading of the transcript alone, to make an adverse finding in light of the state of the evidence. 144 Having expressed the preliminary view that he did, his Honour then concluded that he was unable to say the Commissioner was incorrect in forming the view he did on this issue. In so stating, his Honour was in error as to the review process he was required to undertake. 145 For all of the reasons we have identified, we have come to the conclusion that the most appropriate course is to remit the matter for proper consideration and determination having regard to the procedural and evidentiary errors we have identified as well as the nature of the review process to be undertaken. Approach in current proceeding 14 It follows from the decision of the Full Bench that the task of the Commission in undertaking a review pursuant to s 181E of the Police Act in the current proceeding is to undertake a fresh and independent review of the Commissioner's decision to remove Mr Hosemans based on all of the evidence before the Commission. In doing so, the review process is to be undertaken in accordance with the provisions of s 181F(1) of the Police Act which states: (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 NSW Police, (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. 15 I have also been guided, in particular, in my approach to the review by Bigg v New South Wales Police Service (No 2) (1998) 80 IR 434, Oswald v New South Wales Police Service (1999) 90 IR 42, Van Huisstede v Commissioner of Police (2000) 98 IR 57, Starr v Commissioner of Police [2001] NSWIRComm 226 and by what the Full Bench stated in Newton v NSW Police Service (No 2) (1999) 87 IR 66 at 80: The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest. It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 16 As to onus of proof and evidentiary burdens, I note what the Full Bench said in Hosemans at [131]: 131 The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s 181B of the Police Act was discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s 181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s 181F and does not offend s 181F(2). EVIDENCE 17 The evidence in the present proceeding included the following tendered by the applicant: 1 The Commissioner's Confidence Submission relating to Mr Hosemans. The Submission included: (a) The Notice under s 181D(3)(a) of the Police Act. (b) A profile of the applicant and facts relating to the incident. (c) Statement of Karen Patricia Parkes dated 21 October 2001. (d) Record of interview of Ms Parkes dated 30 October 2001. (e) Record of interview of Ms Parkes dated 1 November 2001. (f) Statement of Mark Andrew Newman. (g) Statement of Dale Johns. (h) Statement of Garry Sloane. (i) Court transcript - DPP v Woolfe & Hosemans , 15 May 2002. (j) Court transcript - DPP v Woolfe & Hosemans , 16 May 2002. (k) Statement of Robert Locke. (l) Statement of Deirdre Locke. (m) Doctor's notes describing injuries to Ms Parkes. (n) Judgment: DPP v Woolfe & Hosemans , Deputy Chief Magistrate Henson, Bathurst Local Court, 19 July 2002. (o) Letter from Chifley Local Area Commander to Commissioner of Police dated 12 September 2002. (p) Excerpt from Investigator's report setting out findings in relation to CIS 01003904. 2 Photographs and sketch plan of bar and bar area of Bathurst Golf Club from Local Court file. 3 Measurements taken of Mr Hosemans' right hand and the length of his flaccid penis (confidential exhibit). 4 Various documents obtained under summons from DPP including "jog your memory" typed notes prepared by Ms Parkes for the prosecutor and handwritten notes by the prosecuting counsel of a conference with Ms Parkes on 10 May 2002. 5 Affidavits by the following persons: (a) Mr Hosemans. A supplementary statement of Mr Hosemans filed in Court on 29 March 2005 was also in evidence. (b) Michelle Ann Regan. Ms Regan gave evidence in the Local Court proceedings and the transcript of her evidence was attached to her affidavit. (c) Steven Geoffrey Woolfe. Mr Woolfe's transcript of evidence in the Local Court was attached. (d) Kaye Leslie Stapleton. Ms Stapleton's transcript of evidence in the Local Court was attached. (e) Craig Joseph Sharah. Mr Sharah's transcript of evidence in the Local Court was attached. (d) Joanne Francis Cuming. Ms Cuming's transcript of evidence in the Local Court was attached. (f) Michael James Locke. Mr Locke's transcript of evidence in the Local Court was attached. (g) Guy Andrew Magee. Mr Magee's transcript of evidence in the Local Court was attached. (h) David James Kelly. Mr Kelly's transcript of evidence in the Local Court was attached. A statement of Mr Kelly to Police dated 30 October 2001 was also in evidence. (i) David John Nicoll. Mr Nicoll's transcript of evidence in the Local Court was attached. (j) Bradley John Constable. Mr Constable's transcript of evidence in the Local Court was attached. 18 In each case, the deponents of the affidavits swore that they had read the transcript of their evidence in the Local Court and that such evidence was true and correct to the best of their recollection and belief. 19 The evidence of the respondent included: 1 A statement of Mark Andrew Newman given to Police on 22 October 2001. 2 An extract of transcript in the Local Court proceedings of evidence given by Mr Newman on 14 May 2002. 3 A statement of Garry Sloane given to Police on 31 October 2001. 4 An extract of transcript in the Local Court proceedings of evidence given by Mr Sloane on 15 May 2002. 5 A statement of Robert Locke given to Police on 22 October 2001. 6 An extract of transcript in the Local Court proceedings of evidence given by Robert Locke on 15 May 2002. 7 An affidavit of Dr Alan McCreery. 8 An extract of transcript in the Local Court proceedings of evidence given by Dr McCreery on 14 May 2002. 9 An extract of transcript in the Local Court proceedings of evidence given by Senior Constable Kathleen Stutsel on 14 May 2002. 10 An extract of transcript in the Local Court proceedings of evidence given by Inspector Gregory Newham on 15 May 2002. 11 A record of interview of Constable Andrew Holland by Inspector Owen King and Inspector Gregory Newham at Bathurst Police Station on 30 October 2001. 12 An affidavit of Dale Johns, which had annexed to it a statement made by Mr Johns to Police on 30 October 2001 and the transcript of his evidence in the Local Court on 14 May 2002. 13 Handwritten note of Ms Parkes allegedly recording the message left by Mr Hosemans on her mobile phone on 21 October 2001 at 12.59 pm. 14 A statement of Deirdre Locke to Police on 30 October 2001. 15 An extract of transcript in the Local Court proceedings of evidence given by Mrs D Locke on 14 May 2002. 16 An affidavit of Karen Parkes which had annexed to it a statement she made to Police on 21 October 2001, the transcript of an electronically recorded interview by Inspector Newham on 30 October 2001 and again on 1 November 2001 and a copy of the transcript of evidence given by Ms Parkes in the Local Court. Ms Parkes confirmed the statements and interviews were true and correct and that her evidence in the Local Court was true. 17 Photographs of alleged injuries to Ms Parkes' legs and buttock resulting from the alleged assaults by Mr Hosemans. 18 Transcript of further evidence given by Ms Parkes in the Local Court on 15 May 2002. 19 Transcript of evidence given by Inspector Gregory Martin on 15 May 2002. 20 Counsel for the applicant in the proceeding called seven witnesses: (a) Mr Hosemans. (b) Ms Regan. Ms Regan was a friend of Mr Hosemans. She gave evidence of a conversation she had in a Bathurst street towards the end of November 2001 with Ms Parkes and Mr Johns. Ms Regan said she had been talking with Ms Parkes when Mr Johns joined them. Ms Regan said that in relation to Mr Hosemans, Mr Johns said "Oh, that bastard. I see six figures there". Ms Regan said Mr Johns rubbed his hands together and quietly said, "and laughing all the way to the bank." Ms Regan also said that Ms Parkes had said, "Don't forget the Golf Club. It's not fair that we close by ourselves … I'm a little stressed and hope to get enough to get a holiday out of this." (c) Mr Woolfe. Mr Woolfe was Mr Hosemans' co-defendant in the Local Court proceedings, having been charge with aggravated indecent assault. Mr Woolfe did not play golf with Mr Hosemans on 20 October 2001 but accompanied the golfers around the course and sat at Mr Hosemans' table during dinner. Mr Woolfe's evidence corroborated that of Mr Hosemans. (d) Mr Magee. At the relevant time Mr Magee was a detective senior constable stationed at Bathurst and worked with Mr Hosemans. Mr Magee attended the seafood night and sat at Mr Hosemans' table. His evidence went mainly to the consumption of alcohol by Mr Hosemans and others on 20 October 2001. He did not see any of the events that led to Mr Hosemans' removal. He said Mr Hosemans was moderately affected by alcohol. (e) Mr Kelly. At the relevant time Mr Kelly was employed at the Golf Club as a bar steward. Mr Kelly played golf with Mr Hosemans on 20 October 2001 and had known Mr Hosemans for about 13 years. Mr Kelly's evidence amounted to him having heard nothing and seen nothing of the incidents that led to Mr Hosemans' removal. Mr Kelly was harshly criticised by the Deputy Chief Magistrate as an untruthful person. (f) Mr Farmer. Mr Farmer was the secretary-manager of the Golf Club. Ms Parkes came to see Mr Farmer on the Sunday morning to inform him what had occurred the previous evening and that she could no longer work at the Club. (g) Mr Constable. Mr Constable at the relevant time was the bar manager at the Club. Mr Constable was a friend of Mr Hosemans and played golf with him on 20 October 2001. Mr Constable considered Mr Hosemans was moderately affected by alcohol and that no person came to his attention as being drunk. Mr Constable's evidence was that he saw nothing of the incidents that led to Mr Hosemans' removal. Mr Constable said he noticed Ms Parkes looked angry between midnight and about 12.30 pm when she was on the phone to her boyfriend and he asked her what was the matter but she did not respond. Mr Constable was criticised by the Deputy Chief Magistrate as being untruthful. 21 Whilst the affidavits of Ms Stapleton, Sharah, Ms Cuming, Mr Michael Locke and Mr Nicholl were read they were not required for cross examination. 22 The witnesses called by counsel for the Commissioner were as follows: (a) Mr Newman. Mr Newman worked as a casual bar attendant at the Club at the relevant time. Mr Newman saw Mr Hosemans and Mr Woolfe grabbing at Ms Parkes' shirt near the breast area and asked her "What were they trying to do, grab your tits or something" and she replied, "They tried but they didn't succeed". Mr Newman said Ms Parkes giggled as the two men grabbed at her and stepped back. Mr Newman said Ms Parkes seemed quite composed. Mr Newman did not remember hearing Ms Parkes say words to the effect "Fuck off" or "Leave me alone". (b) Mr Sloane. Mr Sloane was a developer and friend of Mr Hosemans. He joined Mr Hosemans' table at the seafood evening. Mr Sloane had a "win on the horses" on 20 October 2001 and shouted wine and several rounds of spirits or liqueurs. Mr Sloane said he was moderately affected by alcohol on the night but there was other evidence to suggest Mr Sloane was significantly affected. Mr Sloane corroborated Mr Hosemans' evidence regarding the penis exposure incident (i.e., he did not expose his penis but used his hands and thumb to simulate his penis). Mr Sloane said that during the evening Ms Parkes came and sat on Mr Hosemans' lap. (c) Mr Robert Locke. Mr Locke attended the seafood evening with his wife. Mr Locke was a member of the Club's Committee. He knew Mr Hosemans and had played golf with him. Mr Locke had drunk 8 to 10 schooners of beer during the evening. At about midnight Mr Locke saw Mr Hosemans pick Ms Parkes up behind the bar, hold her for a few seconds and put he back down on her feet. Mr Locke saw that Ms Parkes was visibly upset and crying when she was leaving the Club and advised her to see the secretary manager. (d) Mr Johns. Mr Johns was Ms Parkes' boyfriend at the relevant time. They were married in 2003. Mr Johns picked Ms Parkes up from the Club about 12.30 am on 21 October 2001 and corroborated the evidence of Mr Locke and Ms Parkes that Ms Parkes was upset and crying. He also sought to corroborate Ms Parkes' evidence regarding a message left by Mr Hosemans on her voicemail and was present when Ms Parkes visited the Club on Sunday 21 October 2001 to see Mr Farmer. (e) Mrs Deirdre Locke. Mrs Locke went to the Club on 20 October 2001 with her husband Michael (brother of Robert). Mrs Locke said she observed Ms Parkes sitting on Mr Hosemans' lap during the evening and he was fondling her breasts with both hands, something Ms Parkes denied. (f) Ms Parkes. Dr McCreery was not required for cross-examination. RELEVANT BACKGROUND 23 Ms Parkes had been employed as a casual bar attendant at the Club for -two years and on 20 October 2001 she started her shift at about 6.30 pm. She had known Mr Hosemans for a number of years and was on friendly terms with him. 24 On 20 October 2001 Mr Hosemans attended a golf day at the Bathurst Golf Club with a number of friends and acquaintances. Mr Hosemans consumption of alcohol on that day was an issue in the proceeding. Mr Hosemans conceded that "on a couple of occasions at private residences I have consumed alcohol to the extent of being well intoxicated" but that he would never do so in a public place. 25 Prior to commencing the golf Mr Hosemans had lunch at the Club where he consumed two beers and probably a glass of wine. During the 18-hole round of golf Mr Hosemans said he consumed three Budweiser beers over a period of about four hours. The golf finished about 5.00 pm and Mr Hosemans and his golfing partners showered and went to the Club's lounge where further alcohol was consumed. How much alcohol was consumed in the lounge prior to dinner in the Club's restaurant was in issue. Mr Hosemans said he only had one beer over a period of about one hour, although he acknowledged that the period in the lounge commenced with him purchasing a round of 5 drinks. 26 During the seafood night those at the table at which Mr Hosemans was seated were served with beer, wine, butterscotch schnapps and Wild Turkey bourbon "shots". Mr Hosemans said he consumed six beers (all normal strength and less than a schooner) and two butterscotch schnapps during the four hour meal in the restaurant and then no alcoholic drinks were consumed by him in the bar area after 11.00 pm. Mr Hosemans said he became "moderately affected" by alcohol during the evening. Ms Parkes described Mr Hosemans as "loud and boisterous" and her description of him varied between moderately affected to highly affected by alcohol. 27 During the evening Ms Parkes was cleaning tables and collecting glasses at the table occupied by Mr Hosemans and his companions. She was engaged in conversation with a number of them and laughing at their behaviour. Ms Parkes claimed that Mr Hosemans grabbed her around the waist and pulled her down on to his lap where she stayed for a short period. Ms Parkes said Mr Hosemans then "plonked" her on Mr Woolfe's lap from which she got up and continued her work of picking up glasses and returned to behind the bar. Ms Parkes did not consider the conduct of Mr Hosemans in sitting her on his lap to be offensive. 28 Mr Hosemans gave a different version of the lap incident. He said Ms Parkes sat down on his lap and he put his hands up onto her hips to cushion the landing. Mr Hosemans said after about 20 seconds or so he felt that he needed to go to the toilet, so he got to his feet and "I held her hips as I got to my feet and stood her on her feet, and I went off to the toilet." 29 The significance of this incident is that counsel for Mr Hosemans submitted that Ms Parkes relied on it: (a) In order for Ms Parkes to downplay that night the extent of her own frolicking around and flirtatious behaviour in which she was the initiator. (b) In order to paint Mr Hosemans as the initiator of any physical contact with her during the night. 30 It was submitted the true position provides part of the contextual background for later in the night when Mr Hosemans picked up Ms Parkes. 31 The Deputy Chief Magistrate considered the lap incident "transparently irrelevant to the determination of these proceedings" and there was "no probative value in attempting to resolve differences in the minutiae of recollections that have no overall bearing on these proceedings". 32 Mr Woolfe said in his evidence at some point in the earlier part of the evening that when he was in the poker machine area Ms Parkes had stopped behind him and he had turned and referring to their previous relationship said, "We had pretty good sex didn't we?" She had replied, "Yeah, you go alright", and he had said that to Ms Parkes because it had been an ongoing joke between them. Mr Woolfe agreed that on this occasion that it was said in the presence of another person, Mr Magee, and although it was not the appropriate thing to say, they had said the same thing in front of other people before and he did not think she would be embarrassed by it. 33 There was also an incident described as the "quickie incident" where Mr Magee said that whilst he and Mr Woolfe were standing by the bar Ms Parkes said something to the effect of "out the back for a quickie". Mr Magee said in response he and Mr Woolfe went behind the bar into an office and stepped towards her then turned back and "just laughed about it". Mr Newman saw this incident occur but did not hear what was said except after the two men returned in front of the bar he heard Mr Woolfe say to Ms Parkes "Yeah, you know I'm good in bed, I was your first", to which Ms Parkes was said to have replied "Be quiet there's people around." 34 Another alleged incident that occurred on the night involving Mr Hosemans and Ms Parkes and which constituted ground 1 in the Commissioner's Notice under s 181D(3)(a) of the Act, was that: On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you assaulted "the complainant" by taking hold of the front of her shirt and pulling her to the bar. You then attempted to indecently assault "the complainant" by grabbing at her breasts. 35 Mr Hosemans responded to the allegation by stating: "On the evening of 20 October 2001 at the Bathurst Golf Club I did not assault and/or attempt to indecently assault Karen Parkes" and "I did not grab or attempt to grab Karen Parkes on the breast or breasts". 36 In Ms Parkes' statement to the Police on 21 October 2001 she said that at about 11.00 pm Mr Hosemans and Mr Woolfe walked up to the bar and joined a number of other persons including Mr Larnach, Mr Constable and Mr Kelly. Ms Parkes said that in the presence and hearing of the group of men Mr Larnach said to her "You had sex at the James Cook." Ms Parkes said Mr Woolfe pushed Mr Larnach on the arm and said to her "I never told him that." Ms Parkes said she was offended by what had been said because it was a personal matter and related to a time when Mr Woolfe and she were in a relationship about five years previously. In cross-examination, Ms Parkes agreed that she did not know whether Mr Hosemans was present to hear the James Cook remark. 37 Ms Parkes said she walked to the end of the bar and stood in between the cash register and the beer taps and said to Mr Woolfe words to the effect "You have got a big mouth", and as she said the words she "leant across the bar and tapped him once on the chin with the back of her fingers on my right hand. I did not hit Steven hard, it was merely a wrist motion." Ms Parkes demonstrated how she hit Mr Woolfe, which was only a light tap on the jaw near the chin. 38 In her statement to Police on 21 October 2001 Ms Parkes said that Mr Hosemans then leant across the bar and grabbed hold of her shirt near the collar and pulled her towards him. He then "groped and grabbed at my breasts". In an interview with Inspector Newham at Bathurst Police Station on 30 October 2001 Ms Parkes said that Mr Hosemans and Mr Woolfe actually touched her breasts. Earlier and later statements by Ms Parkes were to the effect that Mr Hosemans and Mr Woolfe attempted to grab her breasts. 39 In her 21 October statement Ms Parkes said Mr Woolfe tried to grab her breasts with both hands at the same time. Ms Parkes stated neither man said anything to her but she yelled words to the effect "Fuck off, let me go." Ms Parkes said both men laughed, let her go and walked away from the bar. Ms Parkes said she was not sure anyone else saw the incident but another bar attendant, Mr Mark Newman, said in his evidence two men attempted to: [G]rab Karen on the breasts. Both reached over and appeared to try and pinch her on the breasts. They grabbed her shirt, I'm not sure if they grabbed her breasts, at the same time Karen attempted to move backwards but they held onto her shirt. Karen seemed to let out a playful noise, like a giggle and moved back … I asked her what they were trying to do, grab her tits or something. She replied, "They tried, but they didn't succeed." 40 When asked to describe what their hands were doing when they grabbed at Ms Parkes, Mr Newman said that it was a type of pinch, demonstrating an action between his thumb and forefinger when they were reaching towards Ms Parkes. Mr Newman did not hear Ms Parkes say "Fuck off, let me go", and he thought he would hear it if it was said. However, Mr Newman apparently did not hear Ms Parkes say, "You've got a big mouth" to Mr Woolfe, as Detective Hosemans did nor did he hear Detective Hosemans say, "Hey"! Ms Parkes also confirmed that she had said to Mr Woolfe, "You've got a big mouth". 41 Mr Hosemans' version of events was that about 11.00 pm he was walking towards the snooker table and at the same time he saw Mr Woolfe stop at the bar and face Ms Parkes. As he passed them he turned and faced the bar to say hello. Mr Hosemans said he then saw Ms Parkes was looking "unhappy" and she leaned over and slapped Stephen Woolfe on the face. Mr Hosemans said he instinctively responded by reaching over, saying "Hey", and took hold of Ms Parkes' shirt on the button line just below the collar with the thumb and forefinger of his left hand. He said he did not want the situation to escalate. Mr Hosemans said Mr Woolfe grabbed Ms Parkes' shirt at the same time as he. He said Ms Parkes pulled back and let out a laugh and a bit of a giggle. He then walked away from the bar without saying anything to Ms Parkes. Mr Hosemans said there was no attempt by him to touch Ms Parkes' breasts. 42 The Deputy Chief Magistrate was satisfied that both Mr Hosemans and Mr Woolfe were, following the initial taking hold of Ms Parkes, attempting to touch her on the breasts. 43 The Commissioner's second ground in his Notice to Mr Hosemans was that: 2. On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you exposed your penis. Your behaviour was inappropriate and contrary to the Police Code of Conduct. 44 In relation to this alleged incident Ms Parkes said that at about 11.30 pm she was serving Mr Kelly at the Keno machine so that she had her back to the storage end of the bar. She heard a lot of yelling and laughing and turned around and saw Mr Hosemans standing in the doorway to the storage area with his penis out "holding it in one hand and flopping it about". Ms Parkes believed she said, "You should be embarrassed put it away." She heard Mr Kelly say, "I don't have much more than that but I wouldn't be showing mine." Ms Parkes was not alleging that Mr Hosemans was exposing his penis at her, she was not offended by it and "figured he was just showing off and, . . . being a bit of a dickhead". Ms Parkes, however, was adamant that what she saw was Mr Hosemans' penis. 45 Mr Hosemans' version of what occurred was quite different to that described by Ms Parkes. He said that he went through the batwing doors into the bar area to use a wall phone to call for the taxi for Mr Sloane and Mr Sloane said, "About time cocksucker". Mr Hosemans then responded by turning around, placing his right hand in his groin area, wrapping his right hand around his left thumb and saying, "Yeah, suck this." Mr Hosemans said he then turned around to use the phone and as he did so he saw Ms Parkes at the other end of the bar area. His hands were still in the position earlier described. Mr Hosemans said Ms Parkes let out a "little bit of a laugh and she turned immediately back around." 46 Mr Kelly said in his evidence that he did not see Mr Hosemans expose his penis and in his Local Court evidence suggested Ms Parkes was lying as to her version of the incident. 47 The Deputy Chief Magistrate accepted Ms Parkes' evidence in relation to the exposure incident. The Magistrate found that Mr Hosemans and Mr Kelly had been untruthful on this issue. 48 Ms Parkes' evidence was that the drinking amongst Mr Hosemans' group continued to the point she said to Mr Constable words to the effect "They have had enough to drink". Mr Constable, however, indicated to her she should keep serving alcohol, which she did. Ms Parkes came from behind the bar to collect glasses and when she returned she found Mr Woolfe behind the bar with three glasses that he was filling up with Malibu, a liqueur. She said she took the bottle from Mr Woolfe and said to him, "Fuck off and get out from behind the bar." Mr Woolfe did not go and continued filling the glasses with pineapple juice. What allegedly occurred next was the basis of the Commissioner's third ground in his Notice to Mr Hosemans, namely: 3. On the evening of 20 October 2001, or the early hours of the morning of 21 October 2001, in the bar area of the Bathurst Golf Club, you assaulted "the complainant" by placing both your arms around the vicinity of her waist and buttocks and lifting her bodily off the ground. As a result of your actions "the complainant" received bruising to the back of her legs and tenderness to her rib areas. 49 Ms Parkes said as she was standing watching Mr Woolfe filling glasses with pineapple juice Mr Hosemans walked behind the bar and picked her up by facing her and putting both his arms around her waist. Ms Parkes asked to be put down but instead, she said, Mr Hosemans slammed her back into the bar so that she was sitting on the lower level of the bar and her back was hard against the upper vertical surface of the bar with Mr Hosemans standing in between her legs. She said her legs were jammed against the clean glass trays under the bar. Ms Parkes swore at Mr Hosemans and said, "Get off me you idiot" and pushed him away. She said she was extremely upset and yelled at Mr Hosemans and Mr Woolfe to "Get the fuck out of here". Ms Parkes said there was a lot of laughter from the group of men standing at the bar. 50 Having climbed off the counter of the bar Ms Parkes said she pushed Mr Hosemans towards the exit to the bar and Mr Hosemans went to stand next to Mr Constable. Ms Parkes then said again to Mr Woolfe, "Get out from behind the bar". She said Mr Woolfe responded by saying, "Stupid bitch, you can't expect to work behind a bar and not have to deal with arseholes". It was Mr Woolfe's evidence that he did not say these words and instead said, "If you can't handle drunk people, then you shouldn't be working behind the bar". 51 Mr Hosemans' version of the lifting incident was that after he retrieved his sports bag that was stored in a room at the end of the bar, he re-entered the bar area and encountered Ms Parkes who said to him, "Are we going to see your dick again?" Mr Hosemans said he replied, "That's not what you saw the first time." He said Ms Parkes laughed and leaned forward with her hands and was waving them around the lower part of his body area in a playful fashion. Mr Hosemans said he dropped his bag and responded in a similar fashion. He said he went forward, knocking her hands out of the way in an effort to grab her around the hips. He said he took hold of Ms Parkes and lifted her off the ground, held her for a few seconds and put her back on her feet. Mr Hosemans said it was just "playful larking around" and he did not intend to assault Ms Parkes. He felt his action was appropriate as he had known the complainant for seven years and his actions were "an accepted level of contact". 52 Mr Robert Locke witnessed Mr Hosemans lifting Ms Parkes off the ground. Mr Locke did not mention that Ms Parkes was forced back against or onto the bar or that she protested in any way, saying that he did not hear either of them saying anything. Mr Locke later asked Ms Parkes to call a taxi for him. He said she looked flustered and did not appear to be happy. In evidence in the Local Court Mr Locke had said that Detective Hosemans had his arms around the top thigh part of Ms Parkes' leg that he described as being the thigh part between the backside and the knee. The Magistrate referred to Mr Locke's evidence as describing Ms Parkes, whilst being held in this position, as being bolt upright or rigid and still. 53 The Deputy Chief Magistrate said in his judgment: I do not believe that the lifting of the complainant by the defendant was an act done with a guilty mind and with the intention of applying unlawful force. 54 His Honour also considered that Ms Parkes' evidence about being slammed against the bar was an exaggeration. 55 Immediately following Mr Woolfe's alleged swearing at her, Ms Parkes phoned her boyfriend, Mr Dale Johns (later her husband), to come and pick her up but she could not contact him. Mr Constable inquired of her who she was calling and she replied, "I am ringing Dale to come and get me." She heard Mr Woolfe say, "You're ringing your fuckwit boyfriend." Mr Constable then said to her "I'll hold the phone while you go and serve those customers." Ms Parkes said she began to cry because she was scared and upset. Mr Constable asked, "What's the problem" and she replied, "I'm sick of every bastard grabbing me". 56 Ms Parkes hung up and then walked back to the other end of the bar and began serving two male customers. She was still upset and crying. She said one of the customers said to her, "The bar staff are rowdy tonight, and I don't mean the ones serving." Her boyfriend walked into the Club and said to her, "Why are you crying, what's wrong?" Ms Parkes finished serving the customers, collected her bag and signed off at about 12.30 am. As she and her boyfriend walked to their car Ms Parkes told him what had happened and he walked back inside the Club. Mr Robert Locke had witnessed Ms Parkes and her boyfriend leaving the Club and noticed she was visibly upset and crying. He asked her what was wrong but she continued crying. He said to Ms Parkes that if there was a problem that she should come and see Ian Farmer, the secretary manager of the Club on the following day. Mr Locke said he told Ms Parkes he would go before the Committee of the Club and say what he had seen, which was only that Mr Hosemans had lifted Ms Parkes off her feet. 57 Mr Johns said that after they went outside the Club, Ms Parkes told him that Mr Woolfe and Mr Hosemans had pulled her over the bar and they were feeling her breasts, that Mr Hosemans sat her on the bar and that Mr Woolfe wanted her to leave Mr Johns and go back with him because he didn't like his girlfriend. Mr Johns said he was fairly cranky at what he had been told and went back inside and said, "You're all a pack of tough cunts picking on a girl." He said he could see Mr Larnach, Mr Woolfe, Mr Craig Sharah and Mr David Nicolls. Mr Larnach said "Yeah, we're tough, we're all tough", to which Mr Johns replied "If you want to be tough come outside and I'll show you how tough you are." Mr Johns then turned and left. He was followed out by Mr Larnach and Mr Woolfe but nothing eventuated and Mr Johns and Ms Parkes drove off. Mr Johns asked Ms Parkes whether she wanted to see the Police and she replied, "Not really." 58 The following day Ms Parkes decided she would see Mr Farmer at the Golf Club about the events of the previous evening. It was Mr Farmer's evidence that Ms Parkes was a punctual, honest, good worker. He stated that the first thing Ms Parkes said when she walked into the Club on the Sunday morning at about 9.00 am was, "I can't work here anymore." She told Mr Farmer that Mr Hosemans had grabbed her and thrown her against the bar and tried to fondle her breasts, that Steven Woolfe went behind the bar and served drinks. Mr Farmer said when she first came into Club she was alone and she was "alright" but when Mr Johns joined them she "got very teary". Mr Farmer said he had no recollection of either Ms Parkes or Mr Johns saying Mr Hosemans had exposed his penis. However, Ms Parkes said Mr Johns said in the meeting "It's pretty bad when the deputy mayor has his dick out." 59 After Ms Parkes had visited the Club she went to her sister's place and from there to the Bathurst Police Station to file a complaint. Ms Parkes was interviewed by Police on a number of occasions regarding her complaint. During the initial interview with Inspector Martin she felt soreness behind her knee. At the suggestion of Inspector Martin, Ms Parkes was examined by Dr McCreery on 22 October 2001 who gave evidence of observing two areas of bruising located on Ms Parkes' right thigh and left buttock. He further observed that Ms Parkes was quite distressed and teary. 60 The fourth ground relied upon by the Commissioner in his Notice to Mr Hosemans was that: 4. That you were untruthful in giving evidence at Bathurst Local Court in May 2001 during the hearing of these matters in relation to: - Your evidence in regard to the charge of exposing your penis; - Your evidence regarding yourself and "the complainant" in lifting her bodily off the ground; - That you gave a false account in regards to the telephone message left by you on "the complainant's" mobile phone on 21 October 2001." 61 Mr Hosemans said in his evidence that on Sunday morning, 21 October 2001, he was "thinking about Karen Parkes" and what may have upset her because he had seen she was upset during the previous evening on the odd occasions and he knew she had left the Club without cleaning up, a task that he said he volunteered to assist with. Mr Hosemans had said in his evidence in the Local Court that he thought she may have been upset because of the behaviour of some of the people in his group (Mr Larnach, for instance, and his comment about sex in the James Cook Motel with Mr Woolfe) but not anything Mr Hosemans had done. Sometime after 9.00 am and before 1.00 pm, Mr Kelly rang Mr Hosemans and told him that Ms Parkes was intending to write a letter of complaint to the Club Committee. Mr Hosemans said Mr Kelly was telling him about a complaint concerning "some of the boys". Mr Farmer had said in his evidence that after he had spoken to Ms Parkes, Mr Kelly came to the Club about 10.00 am and Mr Farmer had asked him "if he knew anything and he said he didn't know anything about it." 62 After receiving the phone call from Mr Kelly, Mr Hosemans looked up Ms Parkes' phone number in the phone book. He then rang Mr Kelly back to get hold of Ms Parkes' mobile phone number. He then rang Ms Parkes on her mobile phone and left a message on her message bank. In the Local Court and confirmed in this proceeding, Mr Hosemans said that the words he spoke were: "Parksey, its Brad. Can you give me a ring. I just wanted to see if someone should apologise for anything that might have been done or said. I just wanted to say sorry for anything I said. Could you give me a call on . . . " 63 Mr Hosemans denied saying, "I just want to apologise for anything I might have done or said last night". However, Ms Parkes' evidence was that having received a message from Mr Hosemans she advised Inspector Martin who in turn advised her to transcribe the message, which she did. The transcribed message was as follows: Parkesy its Brad, um, can you give me a ring. I just want to apologise for anything I might of done or said last night, um, yeah, I just wanted to say sorry for anything I said, can you give me a call [mobile phone number]. 64 The reason Mr Hosemans gave for calling Ms Parkes was that he had assumed the role of peacemaker or dispute resolver. In cross examination, the following exchange occurred: Q. Just coming back to your affidavit that is paragraph 30, you tell us there the affidavit of February, 27 February that I asked you some questions about before you told us at the end of that paragraph, "I was only concerned about stopping suspension of golf club members, not so much about my own personal situation." Do you see those words? A. Yes I do. Q. You then agree, don't you, in this affidavit that you were concerned about your personal situation, is that correct? A. Not so much that is what I said. I knew there was the incident where I picked her up, put her back on her feet and that was done behind the bar and that could have been awkward for her but that would be the only thing in my mind. Q. So you weren't concerned about your own situation? A. No, not so much at all. I was not so much concerned about my personal situation. Q. Do you invite his Honour to read this sentence as saying, " I was only concerned about stopping suspension of golf club members, not at all about my own personal situation"? A. No, I am saying that my concern was for other people more so than myself. Q. That is what I'm asking you about, the more so. Accepting that what you say about the more so, to what extent were you concerned about yourself? A. Minor, very small. … Q. The third message that you left accepting the version, either the version that was given by Ms Parkes before the Magistrate or your own, do you say that there was a - do you say that that was a message about conflict avoidance, do you? A. Certainly. It was about getting her to ring me back. I mean I never expected to get a message back. I thought she might have answered. I hadn't planned anything that I was going to say. When I got to the message bank I said those words I said before. I wanted to be conciliatory, I wanted her to ring me. 65 In relation to the phone call the Deputy Chief Magistrate stated in his summation: As I have indicated, the rationalisation for his telephone call relied upon by the defendant Hosemans is spurious and unbelievable. What is believable is that he would endeavour to head off the sort of trouble that might impact on his professional career in the Police Service and his public career in local government … CASE FOR THE APPLICANT 66 Mr B Docking of counsel appeared for the applicant. It is not my intention to summarise the applicant's submissions, which consisted of a very detailed and closely argued case of some 164 pages of written submissions supplemented by oral submissions. Mr Docking's case was broken up into what he referred to as four compartments, namely: (1) Substantive unfairness as on the merits Mr Hosemans is not guilty of the alleged misconduct. (2) Procedural unfairness as the issuing of the Commissioner's Confidence Submissions ("CCS"), the s 181D(3)(a) notice, the purported s 181D(3)(c) consideration by the Commissioner, the purported s 181D(1) removal order and the purported s 181D(4) reasons were all harsh, unjust or unreasonable. (3) Delay until the 19 December 2002 service of the s 181D(3)(a) notice and, in particular, when Mr Hosemans had continued to work in an exemplary, outstanding and impeccable manner. (4) Removal was too harsh on any view of all of the circumstances. 67 By way of relief, Mr Hosemans sought orders for reinstatement, lost remuneration and no break in continuity of service. In particular, Mr Hosemans sought that these orders reflect the undisputed evidence that he was nominated to the rank of Chief Inspector. CASE FOR THE RESPONDENT 68 Mr R Kenzie QC and Mr R Reitano of counsel appeared for the Commissioner. In relation to the nature of the review counsel contended that the review provided for by s 181E of the Act was essentially the same as the unfair dismissal regime subject to the specific statutory modifications found in the Act (see the discussion in Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 at [97] – [104)). The review was not a hearing de novo in the strict sense albeit not in a manner different from the broad range of considerations arising in an unfair dismissal case (see Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 at [106]). 69 It was submitted the review (being an unfair dismissal case) would focus upon the "substantive fairness" of the removal – that is it would require where "misconduct" is involved a consideration of whether the "misconduct" occurred and whether it justified the making of an order of removal. Other considerations will also be relevant (for example, see section 181F(3) of the Act). Further, it was submitted, the public interest would be specifically relevant to the review (s 181F(3)(b) of the Act) and any orders the Commission might make. 70 The respondent made a number of submissions on procedural unfairness in anticipation of the applicant's submissions in that regard and then, having received the applicant's submissions, made further written submissions in reply. The submissions were extensive and I do not propose to summarise them because I will deal with any salient elements in the course of my consideration of the matter. The respondent, of course, contended there was no procedural unfairness and addressed each of the 14 procedural deficiencies alleged by the applicant. 71 Counsel for the respondent submitted that the real issue in the proceeding was not one of procedural fairness but rather concerned the substantial question as to Hosemans misconducting himself and whether the Commissioner was entitled to lose confidence in Hosemans as a result of that misconduct. Importantly, in this regard the Commissioner's case rested upon: [T]he important foundation that Hosemans has deliberately erected a whole scenario which is designed around a thread of truth interwoven amongst a fabric of untruth after untruth so as to present a version of history for which he has nothing to apologise for because on his story he did nothing at all that was wrong (such that warranted an apology) on the evening of 20 October 2001. This is not a case where the Commission is merely invited to prefer the evidence of one witness over another – this is a case where the Commissioner actively asserts as part of his case Hosemans untruths and lies so as to erect a completely fabricated story which is founded upon improbability upon improbability as being the basis for the removal of Hosemans from his position as a police officer. 72 The respondent addressed at length: 1 The credibility of Ms Parkes who, it was submitted, presented as a forthright and honest witness who gave her evidence with candour and confidently and without hesitation and that she had no motive to lie. 2 The level of intoxication of various persons on the evening of 20 October 2001 including Mr Hosemans. 3 The credibility of various witnesses for the applicant, including the applicant. 4 The incident where Ms Parkes allegedly voluntarily sat on Mr Hosemans' lap (the lap incident). 5 The incident where Mr Hosemans allegedly grabbed Ms Parkes by the shirt and attempted to grab at her breasts (the grabbing incident). 6 The incident where Mr Hosemans allegedly exposed his penis (the exposure incident). 7 The incident where Mr Hosemans allegedly lifted Ms Parkes and slammed her onto the bar (the lifting incident). 8 The events of Sunday 21 October 2001 when Ms Parkes made her complaint to Mr Farmer and later filed a complaint with Police; the call from Mr Kelly to Mr Hosemans; and, Mr Hosemans' message left on Ms Parkes' mobile phone. 9 The severity of the penalty. 10 The question of delay. SUBSTANTIAL UNFAIRNESS 73 In my consideration of this matter I propose, firstly, to address the issues going to substantive unfairness, that is, whether the removal of Mr Hosemans was harsh, unjust or unreasonable on the ground that the Commissioner has failed to make out its case that Mr Hosemans was guilty of the misconduct alleged. I will then turn to deal with the issues in the case relating to procedural unfairness. Credit of Ms Parkes 74 Ms Parkes' credit was the subject of a vigorous and probing attack by counsel for the applicant and no stone was left unturned in that respect. Because of that I propose to address the question of her credit separately from my consideration of the credit of other witnesses who I will deal with as appropriate in the course of this judgment. 75 Ultimately, despite some contradictions, inconsistencies and exaggeration in Ms Parkes' evidence and an inability to recall certain events and conversations, nothing about her evidence was glaringly improbable. This is to be contrasted with witnesses called by the applicant. 76 I accept that in relation to some incidents Ms Parkes put a gloss on them and there were inconsistencies in her evidence and she gave various versions of events. For example, in her initial statement to Police, Ms Parkes said she crossed her arms to prevent Mr Hosemans "touching my breasts any further" but her earlier statement to Mr Newman indicated that Mr Hosemans had tried to touch her breasts but had not succeeded. Because of the inconsistencies, and some exaggeration, I have been careful in my approach to Ms Parkes' evidence but I essentially agree with the Deputy Chief Magistrate's view of her overall credit as a witness of truth and that was that Ms Parkes: [M]ay be a witness prone to a limited degree of exaggeration and reconstruction but my overall assessment of her credibility is that by and large she was truthful, certainly more so than either of the Defendants, members of the group and some others who gave evidence before me. 77 Counsel for the respondent stressed in their submissions: At the end of the day the attack on Parkes' evidence fails. It fails because she had no motive to lie. She had no reason to walk into a police station and make a complaint against Hosemans about obviously very serious matters. 78 The absence of motive is not determinative of whether Ms Parkes lied about the events of 20 October 2001 but because the applicant squarely raised motive it is necessary to deal with those submissions. 79 Counsel for the applicant contended that Ms Parkes had four motives to lie about the alleged conduct at the Club and why Ms Parkes no longer wished to work at the Club. It was submitted the first three motives were related. First, it was submitted Ms Parkes and Mr Johns were of the view that they would be laughing all the way to the bank; Mr Johns saw six figures; and, Ms Parkes hoped to get enough to get a holiday out of this. This submission was based on Ms Regan's evidence. It was her evidence that Mr Woolfe rang her about two weeks prior to the Local Court proceeding and asked if she could assist him and to write down, if not so already written down, any conversations she had with Karen Parkes. Ms Regan said she would and she had some information to give him but that Mr Woolfe did not ask her what Ms Parkes had said that might assist him. 80 No explanation was given as to why Mr Woolfe would ring Ms Regan out of the blue and ask her to write down, if not already written down, any conversations she had with Ms Parkes that might assist Mr Woolfe - and as it turned out, Mr Hosemans. Moreover, Ms Regan regarded herself as a friend of Ms Parkes, at least up to the time she agreed to do Mr Woolfe's bidding, but she was prepared to pass on the content of the conversation with Ms Parkes and Mr Johns knowing, surely, it would be used to discredit her friend. It would appear that Ms Regan's loyalties lay more with Mr Woolfe and Mr Hosemans than with Ms Parkes because Ms Regan did not advise her friend what she had done and, not surprisingly, has not spoken to her since. 81 The fact that Mr Woolfe asked Ms Regan to write down, if not already written down, any conversations she had with Ms Parkes that might assist Mr Woolfe, that Mr Woolfe never asked what it was that Ms Regan knew that might help him, that Ms Regan clearly favoured her relationship with Mr Woolfe rather than her friend Ms Parkes, causes me to be sceptical about Ms Regan's evidence. The action of Ms Regan in passing on the information to Mr Woolfe was not done out of any sense of public duty because Ms Regan in cross-examination agreed that nothing that Ms Parkes said about getting enough to arrange a holiday was "wrong or untoward." Presumably, she would take the same view about Mr Johns' comments. 82 It may be that there is a thread of truth in the evidence given by Ms Regan but in no way does it support the proposition that a motive for Ms Parkes and Mr Johns to lie was to win monetary compensation - six figures worth or otherwise. What the Commission is being asked to accept, in effect, is that either prior to 20 October 2001 Ms Parkes and Mr Johns conspired to engage in a process that would lead to Ms Parkes receiving a large amount of money (six figures) as some form of compensation for what occurred or that after 20 October they formed this intent. 83 The first scenario is so improbable it is not worth consideration and, in any event, there is no evidence to support it. The second scenario would mean that, after the events of the evening of 20 October 2001, between about 12.30 am and 9.00 am on 21 October 2001, Ms Parkes and Mr Johns decided to make up a story involving a complex set of events in which it was readily foreseeable any story they fabricated adverse to Mr Hosemans and Mr Woolfe would be difficult to construct in order to withstand scrutiny. This had to be done before going to see Mr Farmer the next morning and before going to the Police Station that same day to file a complaint and make a statement that would constitute their concocted story against a senior serving police officer and deputy mayor. This is against the background of: Ms Parkes being very upset at the time she left the Club and found it difficult to sleep that night; Mr Johns asking Ms Parkes soon after they left the Club whether she wanted to go to the Police; where no claim was filed in any Court seeking monetary compensation (other than a workers' compensation claim to pay for counselling), notwithstanding the damning comments of the Magistrate of the conduct of Mr Hosemans and Mr Woolfe; where Ms Parkes resigned from the Club thereby giving up an important source of income in order to, as the applicant would have it, embark on a highly speculative bid to gain a large amount of money through an action in the courts; and, where the whole episode was likely to, and did, place an enormous strain on Ms Parkes, revealing details of her life and personality that were intensely personal and private. The submissions regarding the first motive are rejected. 84 The second motive to lie, it was submitted, was that even before going to work on 20 October 2001, Ms Parkes was sick of working at the Club and had decided that she didn't like working at the Club and that management and her supervisors needed to talk to Ms Parkes about her work behaviour during Club working hours. The third motive was said to be that Mr Johns preferred Ms Parkes not to work at the Club and instead be at home. 85 As counsel for the respondent submitted, however: It is difficult to understand what possible nexus Hosemans seeks to put between Parkes resigning her employment and having to make complaints about him (or anyone). If Parkes was sick of her job she did not need to make serious allegations about Hosemans in order to resign. Similarly Parkes did not need to make a complaint about Hosemans in order to give way to Johns' preference that she not be employed at the club. I reject the applicant's submissions regarding the second and third motives. 86 The fourth motive to lie, it was submitted, was Ms Parkes had an axe to grind against Mr Hosemans because he had started having lunch with her sister Deb with whom Mr Hosemans had a previous relationship and, according to what her sister told Mr Hosemans, Ms Parkes was furious about it. None of this was raised by the applicant in the Local Court proceedings and it does smack of a recent invention. But, in any event, it is entirely unconvincing as a motive for Ms Parkes to lie about the events of the evening of 20 October 2001. For instance, if Ms Parkes was planning to "set up" Mr Hosemans because he was seeing Ms Parkes' sister, it is hardly likely she would have voluntarily sat on Mr Hosemans' lap during the evening as claimed by Mr Hosemans. The submissions regarding the fourth motive are rejected. Intoxication 87 As I noted earlier, the level of intoxication of Mr Hosemans and others in his group was an issue in the proceeding. I consider that there was a tendency of some of the witnesses, including Mr Hosemans, to understate the level of their intoxication. "Moderately affected" was a favourite description of Mr Hosemans and his colleagues. 88 In relation to a number of Mr Hosemans' companions it may be accepted that they had consumed so much alcohol as to be beyond the state of "moderately affected". Mr Hosemans described Mr Andrew Holland as "drunk"; Mr Geoffrey Larnach as "getting towards well intoxicated"; Mr Woolfe as "past the moderately intoxicated stage" at 11.00 pm and "well affected" by midnight; Mr David Kelly as "moderately affected"; Mr Bradley Constable as "moderately affected" (Constable had been drinking since lunchtime and had something like 20 or so drinks). Despite Mr Woolfe's denial I am satisfied he, Mr Larnach and Mr Holland were involved in wrestling and pushing each other. As the Deputy Chief Magistrate observed this conduct created "a perception of members of this group whose general behaviour had become so disinhibited through the effects of alcohol that it was becoming irresponsible". 89 Police asked Mr Kelly how many drinks he had on 20 October 2001 and he admitted to having 30 "drinks" during the day and evening but, incredulously, said that included non-alcoholic drinks such as water and cordial. I did not find Mr Kelly to be an impressive witness. He could not recall what state Messrs Larnach, Constable, Woolfe, Holland or Hosemans were in so far as being affected by alcohol and claimed he did not see any of the incidents involving Mr Hosemans except: the lap incident, which he was able to describe in considerable detail adverse to Ms Parkes; and, the number of drinks he had that day and evening including water and cordial. Mr Kelly's approach to giving evidence was "minimalist" but where it had any relevance it favoured Mr Hosemans. 90 The Deputy Chief Magistrate considered that Mr Kelly saw no evil, spoke no evil and heard no evil on the evening of 20 October 2001. But I note in his Local Court evidence Mr Kelly stated that Ms Parkes placed herself on Mr Hosemans knee, Ms Parkes was flirtatious, Ms Parkes was lying when she said she served him at the Keno machine sometime after 11.30 pm, and she was lying about her version of Mr Kelly having seen and commented on the penis exposure incident. 91 Also present on the night was Mr Garry Sloane who Ms Parkes described as "incredibly intoxicated". She said he came to the bar and was extremely slurring and said to her "I want two fuckin' bottles of wine." The Deputy Chief Magistrate was satisfied that Mr Hosemans, Mr Woolfe, Mr Constable, Mr Holland and Mr Sloane were well affected or significantly affected by alcohol and at one point in his judgment his Honour stated that "the defendant Hosemans and others in his group were drunk beyond caring". 92 It was not in issue that Ms Parkes was not affected by alcohol on the evening of 20 October 2001. Ms Parkes' statements regarding Mr Hosemans' state of intoxication, however, varied between "highly intoxicated" to "moderately affected" and are, therefore, unreliable. Mr Robert Locke, who was not a member of Mr Hosemans' group but who attended the seafood evening with his wife and who was a member of the Club's Committee, said that by the time he left the Club at about midnight, Mr Hosemans "was showing signs of being affected by alcohol, such as being rowdy and so on, but he wasn't stumbling around or anything like that." 93 I am comfortably satisfied that by 11.00 pm Mr Hosemans was closer to being well affected by alcohol than moderately affected, to the extent of being sufficiently uninhibited to carry on in a "rowdy" fashion as Mr Locke described it, and that he was in the company of men such as Mr Woolfe, Mr Sloane and Mr Larnach who were in such a state of intoxication they could be described as drunk. I also consider Mr Constable was affected to a similar degree as Mr Hosemans, and Mr Kelly was well affected, by alcohol. 94 I come to the view regarding Mr Hosemans' state of sobriety on the basis that: (a) Mr Hosemans conceded he was moderately affected by alcohol but it was strongly in Mr Hosemans' interest to understate the amount of alcohol he consumed on the evening of 21 October 2001. (b) Mr Robert Locke's evidence that Mr Hosemans was "showing signs of being affected by alcohol, such as being rowdy and so on, but he wasn't stumbling around or anything like that." (c) Mr Hosemans' presence behind the bar and his lifting of Ms Parkes, grabbing her by the upper thigh is not the conduct of a senior police officer and high-level civic official who was sober or in complete control of his actions, regardless of the fact that he had known Ms Parkes for a number of years. (d) Mr Hosemans admitted conduct regarding simulating having his penis out and saying "suck this" and either not checking to see whether there were any females present or not caring whether they were present, is not the conduct of a senior police officer and high-level civic official who was sober or in complete control of his actions. (e) Walking off without saying a word after grabbing Ms Parkes' shirt across the bar counter is not indicative of a person in a sober state. Moreover, it seems an entirely odd thing for a sober senior police officer that encountered the situation Mr Hosemans said he did, to have to lean across the bar counter to grab Ms Parkes by the shirt with his thumb and forefinger rather than, for instance, to prevent an "escalation", to step between the two persons, one of them being a solidly built young man such as Mr Woolfe and a slight female such as Ms Parkes. (f) Mr Hosemans was involved in shouts of drinks, of which there were many and varied, from sometime after 5.00 pm to about 11.00 pm but that he claims he was only moderately affected whereas the condition of a number of his drinking companions ranged from significantly affected by alcohol to just plain drunk. There was no evidence from any of Mr Hosemans' drinking companions that he refrained from participating in any shouts of drinks by letting the drinks stand on the table, for instance, or saying "leave me out", during the evening, a matter that it is highly likely would have come to someone's attention and would have been evidence strongly in Mr Hosemans' favour if it had occurred. (g) I consider the evidence of those friends of Mr Hosemans who described him as moderately affected by alcohol, either deliberately understated his condition or were so affected by alcohol themselves they were incapable of making a proper judgment. 95 Mr Docking referred the evidence of Mr Hosemans' good character including the affidavit of Ms Stapleton, and to what the Full Bench said in SDA NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 in relation to what use can be made of character evidence relating to previous good character, namely that: (a) Such evidence should be received as tending to prove that the employee should be believed on oath. (b) An inference of dishonesty should less readily be inferred against the applicant. 96 What has to be weighed against this, however, is my finding that Mr Hosemans was approaching the point where he was well affected by alcohol on the evening of 20 October 2001 and notwithstanding Mr Hosemans' statements to the contrary, his usual reserve and judgment were seriously impaired. That he might be untruthful in respect of his conduct on 20 and 21 October may also have been out of character but what was at stake was his future career and his high standing and reputation in the community. Assault and attempted indecent assault 97 My view of the evidence in this matter is that Ms Parkes was embarrassed and unhappy by Mr Larnach's remark, made in the company of other men, about Ms Parkes having sex at the James Cook Motel. She considered Mr Woolfe had a "big mouth". Mr Parkes lightly hit Mr Woolfe on the jaw near the chin with the back of her fingers to indicate her displeasure. Mr Woolfe took the light tap as an opportunity to grab Ms Parkes' shirt to pull her towards him in order to reach her breasts. Mr Hosemans did the same at about the same time. Neither man, in my opinion, had an intention of assaulting Ms Parkes but both attempted to touch her breasts in retaliation for the slap to Mr Woolfe. This retaliation should not be seen as hostile but from the alcohol-dulled perspective of the two men, they regarded it as harmless fun. 98 From what Mr Newman saw of the incident, he obviously considered the two men may have been trying to grab or pinch Ms Parkes' breasts otherwise he would not have asked her what they were trying to do, "grab your tits or something" to which Mr Newman heard her reply, "They tried, but they didn't succeed." Mr Newman's perception supports the conclusion that Mr Woolfe and Mr Hosemans were attempting to grab or pinch Ms Parkes on the breasts. It is unlikely he would have asked the question he did if that is not what he thought they were doing. 99 It may have been that Ms Parkes said to the two men, "Fuck off, let me go" but I do not consider that was said in anger given Mr Newman's evidence that as Ms Parkes stepped back to avoid the two men grabbing or pinching at her breasts she "let out a playful noise, like a giggle and moved back". I accept Mr Newman's evidence about Ms Parkes' reaction and it leads me to the view that she did not find the attempts to grab at her breasts particularly offensive at the time. Mr Newman said Ms Parkes seemed composed and nothing about her demeanour alarmed him. 100 Whilst the grabbing incident, on its own, may not have been something Ms Parkes would have complained to the Police about, there is no doubt that over the period of the evening Ms Parkes was subjected to harassment by a group of increasingly intoxicated men. The clearly embarrassing comments about her sexual relations, Mr Woolfe's harassment of her by asking her to go home with him, Mr Woolfe's - probably unlawful - intrusion behind the bar and helping himself to alcoholic drinks, his verbal abuse of her ("Stupid bitch, you can't expect to work behind a bar and not have to deal with arseholes"), her being lifted up by Mr Hosemans, together with the attempts to grab at her breasts, eventually caused her to become most upset by the end of the evening and she had good cause to complain. 101 Mr Hosemans' story that he, in effect, came to Mr Woolfe's rescue and that he did not want the situation to escalate and, therefore, found it necessary to grab Ms Parkes by the shirt, is implausible and I do not accept it as being what transpired. Firstly, if one accepts the evidence, as I do, that Ms Parkes looked unhappy at the time she hit Mr Woolfe, it is most unlikely her state of mind and demeanour would have changed to happiness (she laughed or giggled) if two men had just grabbed her on the shirtfront in an act of self defence and pulled her towards them to immobilise her. Secondly, as I noted earlier, it is an odd reaction for an experienced serving police officer concerned about a confrontation escalating, to reach all the way over the bar and grab a woman on the shirtfront to restrain her from further action when there was no indication that she might repeat the slap (a light one in the first place), when Mr Woolfe could have simply taken a step back to avoid being hit again and when the obvious concern would be that the man who received the slap, a man well affected by alcohol, might retaliate. Thirdly, it was Mr Newman's perception that the two men were trying to grab or pinch Ms Parkes' breasts. 102 My view of the grabbing incident is that Mr Hosemans, well affected by alcohol, conducted himself most improperly in grabbing Ms Parkes by the shirt, pulling her towards him and attempting to grab or pinch her breasts. That, however, is not the end of the matter. 103 As Mr Docking submitted, there were two aspects to Ground 1 of the Notice under s 181D(3)(a), namely: (i) that Mr Hosemans assaulted Ms Parkes by taking hold of the front of her shirt and pulling her to the bar; and, (ii) he attempted to indecently assault Ms Parkes by grabbing at her breasts. I propose to treat the allegations of assault and attempted indecent assault by ascribing to those terms their meaning under the relevant provisions of the Crimes Act 1900. It seems to me that is the only course open. It is not appropriate to simply approach the allegations by construing the terms "assault" and "indecent assault" on the basis of their ordinary dictionary meanings. Given the fact that the respondent is the Commissioner of Police one would expect that the Commissioner's use of the terms would be consistent with their technical meaning, that is, their meaning in the criminal law. The relevant criminal law in New South Wales is s 61 (assault) and ss 61L and 61P (attempted indecent assault) of the Crimes Act. 104 The elements that constitute an assault where physical force is applied are as follows: 1 A striking, touching or application of force by the accused to another person (the complainant). 2 That such conduct of the accused was without the consent of the complainant. 3 That such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen. 4 That such conduct was without lawful excuse. 105 An indecent assault will occur where it is established that the accused "at the time of, or immediately before or after the assault" committed an act of indecency "on or in the presence of" the victim. There is no necessity to prove an act or conduct constituting the assault separate from the act or conduct constituting the act of indecency. The word "indecent" means contrary to the ordinary standards of respectable people in the community. 106 The two elements of the offence of attempting to commit a particular crime that must be proved are, firstly, that the accused intended to commit the particular crime and, secondly, that the accused did some act towards committing the intended crime which was immediately (rather than remotely) connected with committing that crime, and which cannot reasonably be regarded as having any purpose other than to commit that particular crime. 107 In determining whether a person had the mens rea for the offences of assault and attempted indecent assault, evidence that a person was intoxicated at the time of the relevant conduct, if the intoxication was self-induced, the evidence cannot be taken into account: see s 428D of the Crimes Act. 108 The standard of proof in the present proceeding is the civil standard, albeit applying the principle in Briginshaw v Briginshaw (1938) 60 CLR 336: see the discussion in Starr v Commissioner of Police [2001] NSWIRComm 226 at [157]-[161]. 109 In relation to the first allegation of assault, whilst Ms Parkes stated in her interview with Police on 30 October 2001 that she felt "scared … sort of uneasy …" when Mr Hosemans leant across the bar and "grabbed hold of your [Ms Parkes] upper chest area in the front of your shirt" it must be proved that Mr Hosemans intentionally, or recklessly, caused Ms Parkes to apprehend immediate and unlawful violence. Even on the balance of probabilities, I am not satisfied the respondent has proved the necessary mental element of intention or recklessness on the part of Mr Hosemans. 110 In relation to the allegation of attempted indecent assault, I consider Mr Hosemans did attempt to touch Ms Parkes breasts. Clearly, Mr Hosemans was intending to touch Ms Parkes' person on an area of the body that produces the sexual connotation necessary for the offence to be made out. But the difficulty, again, is being satisfied that Mr Hosemans intended to put Ms Parkes in fear of immediate and unlawful violence. The evidence does not support such an intention. The exposure incident 111 The first issue here is whether the Court accepts that Mr Hosemans did, in fact, expose his penis. The considerations in favour of him having done so are as follows: (a) Ms Parkes was adamant she saw Mr Hosemans' exposed penis. In terms of credit I would be more likely to prefer Ms Parkes' evidence than that of Mr Hosemans. (b) Ms Parkes account of what she saw is credible. Ms Parkes said in her evidence she heard a lot of yelling and laughing and turned around and saw Mr Hosemans standing in the doorway to the storage area with his fly open and penis out "holding it in one hand and flopping it about". Ms Parkes believed she said, "You should be embarrassed put it away." She heard Mr Kelly say, "I don't have much more than that but I wouldn't be showing mine." Ms Parkes was not alleging that Mr Hosemans was exposing his penis at her, she was not offended by it and "figured he was just showing off and, . . . being a bit of a dickhead". (c) There was evidence about the length of Mr Hosemans' flaccid penis and the width of his hand. It was submitted that it would have been impossible for Ms Parkes to have seen Mr Hosemans' penis out and him "holding it in one hand and flopping it about" because his hand was wider than the length of his flaccid penis. I do not accept this submission. It is quite possible for Mr Hosemans to have held his flaccid penis in his clenched fist with the penis stretched to the extent it was visible in the manner claimed by Ms Parkes. (d) The distance between Ms Parkes and Mr Hosemans was about 8-9 metres and the view was uninterrupted. There is a significant difference at that range between a flaccid penis "flopping about" and an erect thumb. (e) It is unlikely that Ms Parkes would have concocted Mr Kelly's comment. As the Deputy Chief Magistrate observed: It makes no sense for the complainant to contrive a set of circumstances involving Mr Kelly, complete with conversation relating directly to the identification of the appendage if it has no basis in fact. The complainant knew on the night that Kelly was a member of the defendant's group. To suggest that she would invent a version that relied for its acceptance of a person or persons who would more likely to be aligned with the defendant defies logic. I have already made my views of Mr Kelly known. I will re-state it. He is, and was in relation to this particular aspect of the proceedings, deliberately untruthful. I have not the slightest hesitation in accepting that the portion of evidence regarding the interchange between the complaint and Mr Kelly did in fact take place. (f) Mr Kelly was an unreliable witness. He was well affected by alcohol, he was a friend of Mr Hosemans and, I consider he was not being truthful about the exposure incident. (g) Mr Hosemans was well affected by alcohol. (h) Mr Sloane's evidence corroborated that of Mr Hosemans, that is, Mr Hosemans was only simulating the act of exposing his penis using his hand and thumb. However, on this I regard Mr Sloane as an unreliable witness given his inebriated state and relationship with Mr Hosemans. I note that Mr Sloane says he had no recollection of Parkes being present when the incident occurred but he was clearly wrong about that. (i) Whilst Ms Parkes did not in her initial statements to Police on 21 October or 30 October 2001 raise the allegation that Mr Hosemans exposed his penis, this is explicable by the fact that Ms Parkes did not consider it to be an issue or part of the reason why she filed a complaint because she had not been offended by it. (j) Mr Hosemans conceded in his version of the lifting incident Ms Parkes said to him "Are we going to see your dick again", although he denied that is what she saw. 112 The considerations against Mr Hosemans having exposed his penis are as follows: (a) Mr Hosemans was adamant he did not expose his penis. (b) It is possible that given Ms Parkes only gave it a fleeting glance she was mistaken about what she saw. (c) It is possible that Ms Parkes embellished her story because she did not raise the allegation Mr Hosemans "had his penis out and had hold of it" until the 1 November 2001 police ERISP. Further, until the 9 May 2002 "jog the memory" typed notes of Ms Parkes and her Local Court evidence given on 13 May 2002, Ms Parkes did not previously allege Mr Kelly made the comment, "I don't have much more than that but I wouldn't be showing mine". Mr Kelly was not cross-examined by the respondent suggesting he did make the statement. (d) There were inconsistencies in the evidence given by Ms Johns and Ms Parkes in relation to what they told Mr Farmer on the morning of 21 October 2001. Mr Farmer gave unchallenged evidence that definitely no reference to Mr Hosemans exposing his penis occurred during the complaint made on 21 October 2001. 113 In coming to a conclusion regarding the exposure incident, firstly, I generally accept Ms Parkes as a truthful witness. Secondly, I find that what she said she saw in relation to the exposure incident was credible. Thirdly, there does not seem to me that there was anything to be gained by Ms Parkes in fabricating a story that Mr Hosemans exposed his penis but that she was not in any way offended and that the exposure was not directed at her. If she believed, after she made her initial statement to Police, her story needed shoring up by introducing the penis exposure incident it would have made far more impact, from her point of view, if she had also said Mr Hosemans exposed his penis to her and she found it offensive. Fourthly, I regard Mr Sloane and Mr Kelly as unreliable witnesses. Fifthly, I agree with the Deputy Chief Magistrate that it is unlikely that Ms Parkes would have invented the story about Mr Kelly's comments knowing she would be unlikely to be able to rely on Mr Kelly for corroboration given his association with Mr Hosemans. Finally, I consider that Mr Hosemans was well affected by alcohol at this late stage in the evening and his judgment was seriously impaired. 114 In relation to the failure by the respondent to test Mr Kelly in cross-examination regarding his evidence that he did not say "I don't have much more than that but I wouldn't be showing mine", it does not mean the Court is bound to accept Mr Kelly's evidence: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588 per Samuels JA. Mr Kelly's evidence is contradicted by the evidence of Ms Parkes whom I consider is worthy of belief. 115 On the balance of probabilities, having regard to the Briginshaw principle, I find that Mr Hosemans exposed his penis on the evening of 20 October 2001. It follows that I find Mr Hosemans was untruthful in giving his evidence in the Local Court regarding this matter. The lifting incident 116 The lifting incident refers to the occasion when Mr Hosemans walked behind the bar and lifted, bodily, Ms Parkes. The allegation that Mr Hosemans thereby assaulted Ms Parkes is contained in Ground 3 of the s 181D Notice. However, the Commissioner does not appear to rely specifically on any assault arising from this incident in his Statement of Reasons for removing Mr Hosemans, although it must be said those Reasons are not expressed in the clearest language. In his Reasons the Commissioner does refer to Mr Hosemans' "indecorous behaviour towards a female" and he does allege assault but this would appear to be in connection with the grabbing incident. I propose to proceed on the basis that one of the reasons the Commissioner removed Mr Hosemans was because he assaulted Ms Parkes by lifting her behind the bar. There is no prejudice to the applicant in this approach because ultimately I find there was no assault. 117 It was not in issue that Mr Hosemans walked behind the bar and lifted, bodily, Ms Parkes. What was in issue was the context in which the lifting occurred and whether Mr Hosemans slammed Ms Parkes' back into the bar so that she was sitting on the lower level of the bar and her back was hard against the upper vertical surface of the bar with Mr Hosemans standing in between her legs. The issue is whether there was an assault as alleged in the Notice and whether as a consequence Ms Parkes received bruising to the back of her legs and tenderness to her rib areas. 118 I have already related the competing versions of what occurred. My view of the evidence leads me to a conclusion similar to that of the Deputy Chief Magistrate. I am unable to find that Ms Parkes was slammed onto the bar by Mr Hosemans, especially given the evidence of Mr Robert Locke who whilst he did not see the whole incident, stated that he saw Mr Hosemans had lifted Ms Parkes off the ground with both of his arms around the upper parts of Ms Parkes' legs. Then by the time Mr Locke got to the centre of the bar, Mr Hosemans had let Ms Parkes down. Mr Locke said he did not hear either of them say anything. This is inconsistent with Ms Parkes' version that after she was slammed onto the bar she swore and yelled at Mr Hosemans and when he moved back from holding her she got down off the bar. I note that Mr Locke had 8-10 schooners of beer that evening, that he was 8-10 metres away from what he witnessed and, fleetingly, his view was obstructed. But his testimony has injected sufficient doubt, thereby preventing acceptance of the whole of Ms Parkes' version of the lifting incident. I would add that Ms Parkes' allegation that Mr Hosemans had leant against her between her legs whilst she was seated on the bar did not appear in any of her statements or interviews with investigators but rather it was first mentioned in her typed summary for the DPP on 9 May 2002. 119 I have asked myself why would Ms Parkes embellish her story by alleging she was slammed on the bar and one possible answer is that it paints Mr Hosemans' actions in a much worse light, especially that as she was seated on the bar he thrust himself between her legs. Given that I have approached Ms Parkes' evidence with an appropriate degree of caution in light of the evident inconsistencies and contradictions in parts of it, there is sufficient doubt to cause me to not accept entirely without question her version of the lifting incident. Further, the injuries to the side of Ms Parkes' right leg and to her left buttock do not appear to be consistent with the claim that she felt pain in her legs as they hit glass trays underneath the bar. 120 Nonetheless, I accept that the lifting incident was instigated by Mr Hosemans and was non-consensual. The bases upon which I have come to that conclusion are as follows: (a) Mr Hosemans was well affected by alcohol. He had already attempted to touch Ms Parkes' breasts and shortly before lifting her, had exposed his penis. That he might lift Ms Parkes by wrapping his arms around her upper thighs is consistent with being well affected by alcohol given he would not normally engage in such conduct, and consistent with a mistaken belief on his part that as there was no objection by Ms Parkes to his earlier behaviour she would not object to being lifted. (b) Mr Hosemans' evidence that Ms Parkes was waving her hands in front of her and that he believed she was going to lift him, and he somehow saw this as an invitation to lift her, is improbable as was his evidence that the incident ended with both he and Ms Parkes walking off with not one word being said by either of them. (c) Mr Locke stated in his evidence that after the incident he saw that Ms Parkes was flustered and unhappy. I accept that the lifting incident was the last straw, so to speak, and Ms Parkes became very upset. (d) Although Mr Constable denied it, I accept that Ms Parkes said to him after the lifting incident "I'm sick of every bastard grabbing me". (e) The following exchange occurred in the cross-examination of Mr Hosemans: Q. Just coming back to your affidavit that is paragraph 30, you tell us there the affidavit of February, 27 February that I asked you some questions about before you told us at the end of that paragraph, "I was only concerned about stopping suspension of golf club members, not so much about my own personal situation." Do you see those words? A. Yes I do. Q. You then agree, don't you, in this affidavit that you were concerned about your personal situation, is that correct? A. Not so much that is what I said. I knew there was the incident where I picked her up, put her back on her feet and that was done behind the bar and that could have been awkward for her but that would be the only thing in my mind. Why Mr Hosemans thought Ms Parkes could have felt "awkward" about the lifting incident, which on Mr Hosemans' version Ms Parkes let out a little laugh when she was lifted and repeated the hand motions described by Hosemans when she was put back down, is not apparent unless Mr Hosemans truly believed that what he had done or may have done was somehow unacceptable or offensive to Ms Parkes. 121 I consider that Mr Hosemans' conduct in lifting Ms Parkes was unacceptable to her and offensive and there was no invitation, direct or indirect, by Ms Parkes for Mr Hosemans to engage in such conduct. However, in relation to the allegation of assault, I do not consider it has been made out on the evidence before this Court. There was no reliable evidence that Mr Hosemans intentionally, or recklessly, caused Ms Parkes to apprehend immediate and unlawful violence by lifting her. As the Deputy Chief Magistrate stated, Mr Hosemans may have been guilty of "being arrogant and presumptuous as to his perceived right to take hold of the complainant" but the necessary mental element of the offence of assault was not proved to the requisite standard. 122 It follows from what I have said that in giving his evidence in the Local Court Mr Hosemans was untruthful regarding the lifting incident. 123 There was evidence from a number of persons - Mr Sharah, Ms Cuming, Mr Michael Locke and Mr Nicholl - but none of these persons witnessed any of the incidents involving Mr Hosemans and Ms Parkes. The applicant claims this to be in favour of his case but I consider the evidence of these persons to be entirely neutral. Alleged untruthful evidence 124 The Commissioner's Notice alleged that Mr Hosemans was untruthful in giving evidence at Bathurst Local Court in May 2002 during the hearing of these matters in relation to the evidence regarding: the charge of exposing his penis; the evidence regarding the lifting incident; and, that Mr Hosemans gave a false account regarding the telephone message left by him on Ms Parkes' mobile phone on 21 October 2001. 125 In relation to the first two allegations, I have already dealt with those and I have found Mr Hosemans was untruthful. In relation to the mobile phone incident my assessment of the evidence commences with the fact that Mr Hosemans was "thinking about Karen Parkes" on Sunday morning 21 October 2001 with a little bit of concern. In particular, he said he was considering what may have upset her. He said he had seen her upset on the "odd occasion" the night before. The odd occasions identified by Mr Hosemans were: when she heard Mr Larnach's remark about sex in the motel; and, when she slapped Mr Woolfe. However, the last contact Mr Hosemans had with Ms Parkes on the evening of 20 October was when he lifted her, behind the bar, and according to his evidence she did not show any sign of being upset because she laughed and continued, he said, to act in a playful manner. Mr Hosemans did not see Ms Parkes leave the Club in an upset state but said he figured something might have been amiss because she left without cleaning up and he had to assist with that task. But the fact that she did not clean up would be unlikely to logically lead a person to believe she had left the Club in an upset state unless the person had a guilty conscience. There is a clear inference to be drawn that either Mr Hosemans could not, because of his state of intoxication, fully recollect whether what he had said or done the previous evening had upset Ms Parkes and that gave him cause for concern the next morning, or he did recall and he was concerned about the personal implications. 126 Ms Parkes went to see Mr Farmer about 9.00 am on Sunday morning and complained to him about the events of the previous evening involving Mr Hosemans. Mr Farmer told Mr Kelly of the complaints Ms Parkes had made. 127 Mr Kelly phoned Mr Hosemans. Mr Hosemans claimed Mr Kelly told him about a complaint concerning "some of the boys" and not that there was a complaint against Mr Hosemans. But as counsel for the respondent stated, "Why else would Kelly have rung Hosemans (as against anyone else)? The inference from what Parkes told Farmer and what Farmer told Kelly is overwhelming. There was no complaint about "some of the boys" – it was about Hosemans." It is unbelievable, given Ms Parkes' specific complaints against Mr Hosemans, that Mr Kelly would not have told him of those complaints. 128 After receiving Mr Kelly's call, Mr Hosemans looked up Ms Parkes' phone number in the phone book. He then rang Mr Kelly back to get hold of Ms Parkes' mobile phone number. He then rang Ms Parkes on her mobile phone. He left a message on her message bank. In the Local Court he said that the words he spoke were "Parkesy, its Brad. Can you give me a ring. I just wanted to see if someone should apologise for anything that might have been done or said. I just wanted to say sorry for anything I said. Could you give me a call on . . . " Mr Hosemans' evidence in the Local Court was that he didn't believe he had "anything to apologise about", and as far as I can ascertain from the evidence, Mr Hosemans did not say much to Ms Parkes all night - certainly nothing, according to him, that required an apology. 129 Mr Hosemans claimed he made the phone call to Ms Parkes for the purpose of resolving any concerns Ms Parkes had about any conduct, other than his own, that occurred the previous evening before it became an issue within the Club. He said that he thought he might be able to head off the complaint by "explaining to Ms Parkes why certain people carried out certain action". There was no explanation as to why Mr Hosemans chose to take on the role of conciliator in circumstances where he knew of no incident that could realistically have been the subject of a complaint by Ms Parkes except that Mr Hosemans referred to Mr Holland's "boisterous" conduct that might require an explanation to Ms Parkes. However, I consider this a weak basis for Mr Hosemans wanting to intervene in the manner he suggested. As counsel for the respondent submitted, "Nowhere in his evidence before that point had he [Mr Hosemans] identified Mr Holland's behaviour as being a matter that may have been a cause for Ms Parkes to be upset or as something that he had been thinking about on the morning before he rang Parkes." Further, although he said he was curious as to the nature of Ms Parkes' complaint he made no real effort to find out from other persons including Mr Kelly and Mr Constable, although the opportunity to do so existed. The available inference is that Mr Hosemans was looking to head off any complaint against him personally and that he did not seek any information about the conduct of others because he knew from the phone call from Mr Kelly that he was at the centre of Ms Parkes' complaint. 130 It was put for Mr Hosemans that if his motive, in leaving the message he says he did on Ms Parkes' phone, was for the purpose of heading off any trouble that might impact on him personally, he would hardly have said, "I just wanted to say sorry for anything I said". At the time Mr Hosemans made the call to Ms Parkes he had no inkling that Ms Parkes might make a complaint to Police about his conduct. He was only concerned about heading off a complaint to the Club's committee. Secondly, Mr Hosemans believed because of his friendly relationship with Ms Parkes he could head it off by speaking to her. Thirdly, according to Mr Hosemans, he was only indicating in his message that he was sorry for anything he said and was making no admissions about his conduct. 131 It was further put for Mr Hosemans that having failed to make contact with Ms Parkes he went off on a fishing trip for a week and made no further attempt to contact her. It was submitted this was hardly the behaviour of a person concerned about his career. Again, Mr Hosemans' only concern at this stage would have been a complaint to the Club's committee and even an adverse outcome would have been unlikely to have any impact beyond the Club. Moreover, here was a senior police officer and deputy mayor's word against that of a bar attendant, with Mr Hosemans no doubt expecting support in any Club inquiry from people like Mr Kelly and Mr Constable, well known employees of the Club and friends of Mr Hosemans. It is quite possible that in leaving on his fishing trip Mr Hosemans considered there was not much to worry about. 132 Ms Parkes gives a different version of the message left on her mobile phone. She gave evidence that the message included the words "I just wanted to call to apologise for anything I did or said last night, I just wanted to say sorry". Mr Johns corroborated this version of the message but I must say I regard Mr Johns' evidence as unreliable given he admitted to giving false evidence in the Local Court and given the following answer in cross-examination: Q. That you would stand by Karen [Ms Parkes] in terms of supporting her allegations, come what may? A. Yes. 133 Further, I have sufficient reservations about Mr Hosemans leaving a message that he was sorry for anything he did that I am not prepared to accept Ms Parkes' evidence in this regard. Firstly, I am unconvinced as to why the message was not saved by Ms Parkes on the mobile phone. Secondly, I do not consider it was likely that Mr Hosemans would have left a message admitting there was something he had done for which he was sorry. 134 It follows from what I have said that I consider Mr Hosemans was truthful about the content of the message he left on Ms Parkes' phone but he was untruthful about his motives for leaving the message. PROCEDURAL FAIRNESS 135 Before going to what the applicant alleges were 14 procedural deficiencies in the approach adopted by the Commissioner, I should deal with the applicant's submission, addressed somewhat curiously in his submissions in reply on procedural fairness, that the Commissioner failed to make out his case in relation to the fourth ground in the Notice to Mr Hosemans: That you were untruthful in giving evidence at Bathurst Local Court in May 2001 (sic-2002) during the hearing of these matters in relation to: - Your evidence in regard to the charge of exposing your penis; - Your evidence regarding yourself and "the complainant" in lifting her bodily off the ground; - That you gave a false account in regards to the telephone message left by you on "the complainant's" mobile phone on 21 October 2001 because the Commissioner had been unable to prove that Mr Hosemans had committed perjury in the Local Court in accordance with the "rule of law that requires corroboration with respect to the offence of perjury." 136 The rule of law referred to by Mr Docking is to be applied where there is a charge of perjury against a defendant and the rule is that in order to prove the falsity of the statements the subject of the perjury it is necessary for the Crown to lead evidence as to that fact from two witnesses or from one witness whose evidence was corroborated: see Regina v Christine Gay Fish and John Gordon Swan [2002] NSWCCA 196 at [39]-[40]. In order to apply the rule in this case, Mr Docking obviously seeks to draw a parallel between a charge of perjury and the allegations in the Commissioner's Notice of untruthfulness. Counsel went to some lengths in his written submissions that in relation to the allegations in the Notice the requirements relating to proof of perjury had not been met by the respondent. 137 The difficulty for counsel for the applicant in this case is that on the basis of the evidence before me, in a "fresh and independent review", I have come to conclusions about the truthfulness of witnesses quite independently of those reached by the Deputy Chief Magistrate in the Local Court. It seems to me that if I come to the conclusion that having seen a witness give evidence in this proceeding and I reach the conclusion that the witness's evidence was untruthful, if the evidence is the same as the evidence given by that witness in the Local Court, it must follow that the evidence in the Local Court was also untruthful. In those circumstances, the rule relating to perjury has no application where I have made an independent assessment. 138 I turn to the alleged 14 procedural deficiencies. It is convenient to deal with some of the alleged deficiencies together because they raise the same issue. First alleged procedural deficiency - generally, the Commissioner failed to inform himself of all available information (including the NSW Police's own source documents) Third alleged procedural deficiency - the Commissioner did not follow the rules of reason and justice as he remained uninformed about all relevant parts of the police brief and Local Court transcript 139 In Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [76] the Full Bench cited with approval the approach enunciated by Walton J, Vice-President in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [193]-[200] regarding procedural fairness: At [194] Walton J stated: 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. 140 At [199]-[200] his Honour stated: Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s 181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion. I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. (emphasis added) The contention by counsel for Mr Hosemans was that not only did the Commissioner fail to give personal consideration to the information presented to him but he failed to inform himself of all available information, including the NSW Police's own source documents, relevant parts of the police brief and Local Court transcript. Further, having being directed to certain matters in Mr Hosemans' written submissions and asked to give consideration to those matters, the Commissioner did not in fact do so, contrary to s 181D(3)(c). 141 Dealing with the last matter first, s 181D(3)(c) requires that the Commissioner must take into consideration the police officer's written submissions. Mr Docking referred to the judgment in Tickner v Chapman (1995) 57 FCR 451 where the Full Court (Black CJ, Burchett and Kiefel JJ) considered a provision in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that required the Minister to consider a report and any attached representations. Of this requirement, Burchett J stated at 476-477: What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J, speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority. In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling. If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasise that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task … 142 Burchett J noted that the Minister could not delegate his function and duty to consider certain reports and representations under the relevant provisions of the statute in question. Here, of course, the Commissioner may delegate to another member of NSW Police any of the functions conferred or imposed on the Commissioner by or under the Police Act or any other Act, other than the power of delegation: see s 31 of the Police Act. I note there was no evidence of the Commissioner having delegated his function under s 181D(3)(c) to consider the applicant's written submissions and, accordingly, I consider there was an obligation on the Commissioner to have personally undertaken that function. If such delegation had taken place it would require clear evidence that such was the case. Because the Commissioner may have requested an officer or officers to carry out an investigation of the allegations against an officer who is the subject of a Notice, it does not follow that it can, therefore, be inferred that the Commissioner delegated the function of considering any written submission. The language in s 181D(3)(c) is clear; the responsibility lies with the Commissioner personally to consider the officer's written submission and in the absence of that personal consideration there would need to be clear proof of delegation otherwise it is open to the Commission to find procedural unfairness. 143 Further, the obligation on the Commissioner is to consider all the most recent and accurate information and materials available both in favour of and against the officer and he must "obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances." It would not be unreasonable for the Commissioner to rely on a summary of the relevant facts furnished by those to whom he has directed to undertake such a task, but the summary must bring to the Commissioner's attention all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". It would also not be unreasonable for the Commissioner to place a strong reliance on the findings of fact and law of the relevant court in coming to any decision to remove a police officer. 144 I do not see why the Commissioner would be required to read the whole of the transcript of any Court proceedings just for the sake of it. A proper and accurate summary would be sufficient, especially in circumstances where it is obvious that the Court has already read the transcript in arriving at its decision. But if the Commissioner's attention is directed to specific parts of the transcript by the police officer who is the subject of a Notice it is incumbent on the Commissioner, unless he has delegated the function under s 31 of the Police Act, to inform himself about that portion of the transcript. The same applies to any evidence in the Court proceedings. I would make the same observations about the brief of evidence and any other relevant information and materials that are available that the police officer, in his or her written submissions, has asked to be considered. 145 I would add, however, the mere failure of the Commissioner to meet a request by a police officer that the Commissioner read the whole of any transcript to get "an appropriate handle" on the matter does not amount to procedural unfairness if the Commissioner can show he otherwise had a "handle" on the matter. 146 The documents and material about which the applicant claimed the Commissioner was uninformed, included: (a) All Local Court transcripts of evidence despite their availability to the Commissioner no later than 18 July 2002. (b) Photographs and plans of the layout of the Club. (c) The 9 May 2002 summary that Ms Parkes provided to the NSW DPP. (d) "NSW POLICE SERVICE SITUATION REPORT" dated 20 July 2002. (e) "CHIFLEY LOCAL AREA COMMAND MINUTES OF COMPLAINTS MANAGEMENT TEAM 14 AUGUST, 2002" (f) The 18 or 19 September 2002 interview with the Magistrate at the Downing Centre that was referred to in part of the investigator's report of Detective Inspector Boyter but was edited out of the CCS. (g) The police investigation into interference with witnesses. (h) The full brief of evidence. (i) The recommendations and advising of the Internal Review Panel ("IRP") that normally occurs in such disciplinary matters. (j) A conflict of interest and a lack of impartiality on the behalf of Superintendent Peter Gallagher. 147 An example of the applicant's complaint that the Commissioner was relevantly uninformed and did not consider the applicant's written submission is the 9 May 2002 summary that Ms Parkes provided to the NSW DPP. Apparently, Ms Parkes was asked to type up a summary of her evidence to provide to counsel for the DPP on the eve of proceedings in the Local Court. At pages 11, 12,13 and 14 of Mr Hosemans' response to the s 181D Notice he stated: In relation to the allegation that I assaulted and occasioned actual bodily harm to Ms Parkes, her evidence was again inconsistent and contradictory. Set out hereunder are some of those inconsistencies and I ask you to read her evidence in its entirety, the cross-examination of her, and the evidence and cross-examination of the other witnesses. … (v) Ms Parkes' allegation that I had leant against her between her legs whilst she was seated on the bar did not appear in any of her statements or interviews with the investigators, rather it was first mentioned in her summary for the DPP on 9th May 2002. … Again, Ms Parkes was the principal prosecution witness in this matter and I ask that you carefully scrutinise her evidence and cross-examination and take into account the following:- …. (ii) She gave evidence that David Kelly had made a comment at the time of "I don't have much more than that but I wouldn't be showing mine" was not included in any statement she gave police but again was first mentioned in the summary of the 9th May 2002 which was prepared for the DPP. Ms Parkes could not give any reason why she had not previously mentioned it. 148 In it submissions on procedural unfairness the respondent stated: It is not clear why the DPP summary is relied on so strongly in circumstances where it was not a document ever made available to the Commissioner. Hosemans did not ever give it to the Commissioner and nor did his submission refer to it. 149 Mr Hosemans clearly did refer to the DPP summary in his submissions to emphasise his point regarding the unreliability of Ms Parkes' evidence. Counsel for the applicant contended, if the Commissioner had read Mr Hosemans' written submissions, the existence of the summary would have been evident and it was a summary that the Commissioner should have considered. The summary was marked for identification in the Local Court proceedings. 150 Whilst I have some reservations about the Commissioner's failure to inform himself of all information and materials available both in favour of and against the applicant and about whether he gave full and proper consideration to the applicant's written submissions, I am unable to find that if the Commissioner had informed himself as to all of the material that the applicant submitted was missing from the Commissioner's consideration it would have, in the face of the applicant's misconduct, altered the outcome. What I find surprising, however, in light of the authorities such as Bigg, Oswald, Newton, Van Huisstede and Little (No 2), is that the Commissioner would continue to leave himself open to the significant and valid criticism of failing to inform himself of all of the relevant information and materials and to run the real risk of a finding that the removal of a police officer was flawed by procedural unfairness. 151 In the result, I have given careful consideration to the missing material and the submissions made by the applicant as to its significance. Even though it may be said that the Commissioner's failure to consider the material created an element of procedural unfairness it is not sufficient to outweigh the seriousness of the applicant's conduct and to cause me to find that the applicant's removal was harsh, unreasonable or unjust. Second alleged procedural deficiency - the Commissioner refused access to source documents 152 There was no dispute that the Commissioner failed to respond to requests by the applicant to provide "all source documents and material" as requested by the applicant in his written response to the s 181D Notice. That material included: photographs; layout of the Club; "NSW POLICE SERVICE SITUATION REPORT" dated 20 July 2002; "CHIFLEY LOCAL AREA COMMAND MINUTES OF COMPLAINTS MANAGEMENT TEAM 14 AUGUST, 2002"; the 18 or 19 September 2002 interview with the Magistrate at the Downing Centre that was referred to in part of the investigator's report of Detective Inspector Boyter but was edited out of the CCS; the police investigation into interference with witnesses; and, the full brief of evidence. The applicant also requested a copy of "all CIS files and any other Internal Affairs documents, files or records, which relate specifically to the grounds in the Notice or the Commissioner's Confidence Submission, or which relate generally to me in relation to any other issue that has been considered in the 181D process thus far." The applicant complained that the Commissioner failed to answer requests and, therefore, did not provide the aforementioned documents within a reasonable time prior to either the officer's removal or the hearing of the s 181E review and that the Commissioner had to be forced to produce the source documents, with Mr Hosemans only gaining access through a summons for production. The applicant contended this amounted to procedural unfairness. 153 Section 181E of the Police Act provides: Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 154 Section 181E requires the Commissioner to make available to the applicant "all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer". That is, after deciding that he does not have confidence in an applicant's suitability to continue as a police officer, the Commissioner is required to make available to an applicant the documents and materials on which he relied in coming to that decision. That has to be taken to mean that the Commissioner is required to make available all of the documents and material he, personally, relied on and all of the documents and material relied upon by those to whom the Commissioner delegated the function under s 181E. 155 There is, however, nothing in the statute that required the Commissioner to make available documents and materials relied on by him (or his delegate) to the applicant prior to arriving at his decision. This is clear from the wording of s 181E and the context in which s 181E is to be found, namely, "Division 1C - Review of Commissioner's decision under Division 1B in Part 9 of the Police Act." Moreover, s 181D(3)(a), which is to be found in Division 1B of Part 9 of the Act, provides that the Commissioner, before making an order under the section 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. There is no indication that the Commissioner is required to provide to the officer, at this stage, all of the material relied upon in coming to a view that the Commissioner has lost confidence in the officer. This is not inconsistent with the rules of natural justice. Nonetheless, I note in this case the documents and material relied upon by the Commissioner were contained in the Commissioner's Confidence Submissions, which was provided to the applicant at the same time as the Notice under s 181D was served on him. 156 The separate question, however, that seems to be raised by the applicant is whether there is an obligation on the Commissioner to provide to an applicant all "source" documents or materials that may be requested by the applicant, prior to the Commissioner making a decision that he does not have confidence in the applicant's suitability to continue as a police officer, in order that the applicant may have regard to those documents or material in making any submission that the Commissioner is required to consider under s 181D(3)(c) of the Police Act. I take it what is meant by source document is the unedited original document. 157 It is not entirely clear whether the applicant was contending that what was being sought by the applicant was all source documents and materials relied on by the Commissioner (or his delegate) in coming to a decision of loss of confidence or all source documents and materials in any way related to the s 181D process. An examination of the applicant's response to the s 181D Notice would suggest it was the latter. 158 The applicant placed reliance on Humphries v Cootamundra Ex-Services & Citizens Memorial Club Limited (2003) 128 IR 37 where it was said at [118]: 118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 159 There is nothing in the above passage that supports the proposition that in unfair dismissal cases there is a duty on the employer to provide evidence and all documents which are requested by an employee prior to a decision to terminate. It may be, in particular circumstances, the failure of an employer to provide a document or material to an employee prior to making any decision to terminate the employment will amount to procedural unfairness. But Humphries is not authority for the proposition that there is a blanket obligation to provide to the employee all documents that may have a connection with the subject matter associated with the reasons for the termination. 160 I do not consider there is any obligation on the Commissioner to provide, at any stage, documents or material that might be requested by an applicant that have not been relied on by the Commissioner in coming to a decision about whether he has lost confidence in a police officer. As to a request by a police officer for a document or material that the officer asserts he or she needs to be able to respond adequately to a Notice under s 181D, if the Commissioner has relied on that document or material in formulating the grounds in the Notice, and it is reasonably apparent that in the interests of procedural fairness the officer should have that document or material, which is not otherwise available to the officer, it may be appropriate for that document or material to be provided. The Commissioner cannot have a significant objection to this idea because in this case the applicant was provided with the Commissioner's Confidence Submission at the time he was served with the Notice. 161 In expressing this opinion, however, I am not suggesting the Commissioner is obliged to respond to the "shotgun" approach evident in Mr Hosemans' request in his response to the Notice served on him or that the Commissioner is required, prior to the review stage, to provide all source documents and material upon which he relied in formulating the grounds for losing confidence in the police officer. That does not mean the officer is without any protection or is at the mercy of capricious action by the Commissioner. It is perfectly plain from the authorities and the statute that: 1 The Commissioner must fully inform himself before arriving at any decision that he 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. It would not be unreasonable for the Commissioner to rely on a summary of the relevant facts furnished by officers of NSW Police but the summary must bring to the Commissioner's attention all material facts which he is bound to consider and which cannot be dismissed as insignificant or insubstantial ( Tickner v Chapman at 476-477 per Burchett J). 2 The Commissioner must exercise any discretion in deciding to issue a Notice under s 181D(3)(a) of the Police Act "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" ( R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 per Kitto J; Bigg (No 2) at 457). 3 In exercising power under s 181D the Commissioner must pay "careful and punctilious regard to correct procedure" ( Bigg (No 2) at 458). 4 The Commissioner must give the police officer at least 21 days within which to make written submissions in relation to the proposed removal of the officer (s 181D(3)(b) of Police Act ). 5 The Commissioner must take into consideration any written submissions received from the police officer during the 21-day period (s 181D(3)(c)). In that consideration he must obtain an understanding of the facts and circumstances set out in the submissions, and of the contentions they urge based on those facts and circumstances ( Tickner v Chapman at 476-477 per Burchett J). The Commissioner's duty under s 181D(3)(c) is a personal one unless there is a delegation of the function under s 31 of the Police Act . 6 Any order made by the Commissioner removing the police officer must set out the reasons for which he has decided to remove the police officer from NSW Police (s 181D(4) of Police Act ). 7 The police officer who is removed from NSW Police by an order under section 181D may apply to the Industrial Relations Commission for a review of the order pursuant to the provisions of Division 1C of Part 9 of the Police Act on the ground that the removal is harsh, unreasonable or unjust. 8 The approach to be taken by the Commission to any review of the Commissioner's decision to remove a police officer is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. Further, that review process is to be undertaken in accordance with the provisions of s 181F(1) of the Police Act which states: (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 NSW Police, (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 ( Hosemans at [134]). 9 The legislative stipulation in s 181F(2), which imposes the primary onus on an applicant, does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant Hosemans at [131]. 10 In procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act ( Newton (No 2) at 80). 11 The Commission may grant leave to adduce new evidence in such circumstances as it thinks fit 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 (s 181G(2) of Police Act ). 12 The remedies available are those provided by s 89 of the Industrial Relations Act and include reinstatement (s 181G of Police Act). 162 In considering whether there has been procedural unfairness, the Commission will look at all of the circumstances of the case and not every procedural deficiency will lead to the Commission's intervention: (Bigg (No 2) at 460; Newton at 77). The failure of the Commissioner to provide all of the documents sought by Mr Hosemans in his response to the s 181D Notice does not attract the Commission's intervention in this case because it does not give rise to the requisite procedural unfairness. In my judgment, nothing in the documents or material sought by Mr Hosemans in his response, if they had been provided to him, would have altered the outcome, namely, his removal from NSW Police. Further the failure to provide the documents did not amount to a degree of unfairness that superseded considerations going to the applicant's misconduct. Fourth alleged procedural deficiency - the Commissioner did not follow the rules of reason and justice, ignoring the inconsistencies in the many versions of the complainant and her de facto Fifth alleged procedural deficiency - the Commissioner did not follow the rules of reason and justice as he failed to take into account adequately or at all the corroboration of Mr Hosemans 163 It was contended by the applicant that in his s 181D(4) reasons, the Commissioner did not analyse, or weigh, or ascertain, the competing contentions of Mr Hosemans and Ms Parkes. I agree that the Commissioner's reasons contain no analysis that might shed light on how it was the Commissioner reached his decision to favour the evidence of one side over the other in the Local Court proceedings other than it is apparent the Commissioner was significantly influenced by the findings of the Court in deciding to remove Mr Hosemans. However, it is also apparent the Commissioner took an independent view of Mr Hosemans' conduct because despite the charges against Mr Hosemans being dismissed in the Local Court, a fact the Commissioner acknowledged in his Statement of Reasons, the Commissioner asserted that: The material discloses that you on the evening of 20 October 2001 at the Bathurst Golf Club assaulted, then attempted to indecently assault a female employee of the Bathurst Golf Club by grabbing at her breast you exposed your penis to her. As a result of your actions, the female employee suffered injuries to her person requiring her to seek the services of a medical practitioner. 164 In order to arrive at the view that there were grounds to allege Mr Hosemans was guilty of assault, attempted indecent assault and exposing his penis, there would have to have been a reasonably close consideration of the evidence and proceedings in the Local Court and this is reflected in the summary in the Commissioner's Confidence Submission. For instance, Mr Hosemans was not charged with assault under s 61 of the Crimes Act but rather assault occasioning actual bodily harm under s 59. The charge of assault in the Commissioner's Statement of Reasons (which I have treated as having to be made out as if it were a charge under s 61) emanates from an independent assessment by the Commissioner of the evidence in the Local Court proceedings. I am satisfied the Commissioner did consider the evidence in the Local Court to the extent he was able to make an informed decision regarding the reasons for Mr Hosemans' removal. Further, I do not consider the Commissioner ignored or failed to give sufficient attention to Mr Hosemans' response to the s 181D Notice although, as I have acknowledged, there were deficiencies in that respect. 165 Whilst it is apparent that the Commissioner did not have regard to all of the material that identified inconsistencies in the evidence of Ms Parkes and Mr Johns, Mr Hosemans did refer to such inconsistencies in some detail in his response to the Notice and asked that the Commissioner take these into account. I do not consider that the applicant can succeed in a submission that the Commissioner ignored these inconsistencies. Moreover, the Commissioner was plainly aware of the Deputy Chief Magistrate's findings regarding the inconsistencies. 166 I am satisfied that any procedural deficiency in the Commissioner failing to have regard to all of the material regarding the inconsistencies in the evidence of Ms Parkes and Mr Johns did not produce unfairness. I have come to the same conclusion regarding the applicant's assertion that the Commissioner did not follow the rules of reason and justice because he failed to take into account adequately or at all the corroboration of Mr Hosemans despite my reservations, in the absence of a full and proper analysis by the Commissioner of the competing versions of events, about that matter. 167 Further, whilst I have found the Mr Johns was an unreliable witness and that there were difficulties with Ms Parkes' evidence that led me to be cautious in my approach to her evidence, in the result, following my review of the Commissioner's decision, the problems with the evidence of Mr Johns and Ms Parkes were not of such a nature and quality to cause me to overturn the Commissioner's decision to remove Mr Hosemans. Sixth alleged procedural deficiency - the Commissioner did not follow the rules of reason and justice as his personal interest in the case stemmed from reading publicity in newspapers 168 The "CHIFLEY LOCAL AREA COMMAND MINUTES OF COMPLAINTS MANAGEMENT TEAM 14 AUGUST, 2002" document represented that the Commissioner has taken a personal interest in the matter. It was submitted for the applicant the nature of this interest should have been disclosed to Mr Hosemans to deal with in his submissions. The reasonable inference is that the Commissioner read, and was thereby influenced, by newspaper articles that were published during and after the Local Court hearing. Again, this should have been disclosed to Mr Hosemans to deal with in his s 181D submissions. 169 I do not consider it necessarily follows that because the Commissioner has expressed a personal interest in the matter that the inference is available that the Commissioner read, and was thereby influenced, by newspaper articles that were published during and after the Local Court hearing. One would expect that the Commissioner would take a personal interest in the matter. Indeed, he is statutorily bound to do so. 170 The applicant submitted that the Commissioner did not discharge his evidentiary burden by calling evidence that he was not influenced by any newspaper articles. Whilst it must be accepted that once an applicant raises sufficient doubt as to whether the requirements of s181D are met, the Commissioner bears an onus of demonstrating that those requirements were, in fact, met (Van Huisstede at [202]) there is not sufficient doubt raised in my mind that the Commissioner was influenced by a newspaper article. Seventh alleged procedural deficiency - the Commissioner did not follow his own policy, in that no Internal Review Panel was convened 171 The applicant submitted that Assistant Commissioner West on 28 July 2002 in a "Request for Internal Review Panel Advising - Detective Sergeant Bradley Hosemans Chifley Local Command" made admissions that an Internal Review Panel ("IRP") was needed, "To properly address this matter" and "To properly address the outcomes of this matter". However, the recommendations and advising of the IRP that normally occur in such disciplinary matters inexplicably did not occur. On this deficiency, it was submitted, a failure to follow procedures laid down administratively by an employer may be properly taken into account by the Commission: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389. 172 The respondent submitted the "Request for Internal Review Panel Advising - Detective Sergeant Bradley Hosemans Chifley Local Command" shows that the only requirement for an internal review panel at the time was perceived to arise in circumstances where management action was to be pursued rather than the issuing of a Section 181D Notice. It is noteworthy, it was submitted, that there is no requirement in the Act or elsewhere to convene an internal review panel. 173 Whilst a failure to follow procedures laid down administratively by an employer may be properly taken into account the failure in this case, if there was in fact such a failure, does not amount to procedural fairness of the nature and quality that requires the Commission to intervene. Eighth alleged procedural deficiency - there is an apprehension of bias on part of the commander of the section 181D unit 174 It was submitted by Mr Docking that a conflict of interest and an apprehension of bias existed on the part of Superintendent Peter Gallagher. The Superintendent was initially the Officer in Charge of the criminal investigation into the allegations of Ms Parkes and then became the Commander Employee Management Branch in charge of the s 181D unit handling the s 181D nomination of Mr Hosemans. Inspector Newham said Superintendent Gallagher was the informant in the case against Mr Hosemans. 175 It was further submitted that on 28 July 2002, it was Superintendent Gallagher, as Commander Employee Management Branch, who was asked by Assistant Commissioner West with some urgency to convene the IRP. On 14 August 2002, the "CHIFLEY LOCAL AREA COMMAND MINUTES OF COMPLAINTS MANAGEMENT TEAM" outlined information going to an intended IRP. On 30 September 2002, the "CIS No. 0100394 HOSEMANS CATEGORY 1 COMPLAINT INVESTIGATION PLAN" in relation to "Investigation issues" stated, "Investigation relating to Hosemans charges was flawed and inept … Superintendent Gallagher did not take control and supervision of investigation to avoid evidence being lost, errors made and flawed interviewing techniques …". In relation to "Operational Constraints" it said, "Lack of co-operation by Superintendent Gallagher". The "MINUTES OF MEETING BETWEEN REGION COMMANDER WEST, DETECTIVE INSPECTOR BOYTER AND DETECTIVE ACT/INSPECTOR ROWAN AT WESTERN REGION OFFICE 22 OCTOBER 2002" recorded that Assistant Commissioner West would not be influenced by Superintendent Gallagher and that he would direct the Superintendent if necessary to participate in an investigation. 11. Counsel for the Commissioner submitted that as there was no IRP convened, Superintendent Gallagher did not serve on any such Panel. Therefore, any alleged conflict of interest submission falls away. No submission of any substance based on conflict of interest has been advanced. Mr Docking submitted, however, that regardless of whether an IRP was required under the prevailing policy, there is no evidence excluding the possibility of Superintendent Gallagher's input into the s 181D removal of Mr Hosemans. 176 Whilst there was no evidence excluding the possibility that Superintendent Gallagher had input into Mr Hosemans' removal there is not a sufficient basis for me to conclude that the removal process may have been tainted by input from Superintendent Gallagher to an extent that I should overturn the Commissioner's decision. Ninth alleged procedural deficiency - the Commissioner's reasons were inadequate 177 The essence of the applicant's complaint under this heading was that: (a) There was no analysis or ascertaining of the facts set out in the officer's 25 February 2005 submissions took place, nor was any finding made as to the catalogue of unreliability and inconsistency in the complainant's evidence as set out in those submissions. The same failures of the Commissioner apply to the officer's submissions in relation to the telephone message left on the mobile. (b) A plainly wrong finding and one for which there was never any proper evidentiary basis is where the Commissioner said, "As a result of your actions, the female employee suffered injuries to her person requiring her to seek the service of a medical practitioner." (c) Even on the version of Ms Parkes, the Commissioner made this palpably inaccurate finding "… you exposed your penis to her." (d) The Commissioner made no relevant finding about the actions alleged in part 1 of ground 3 (assault) and it is unable to be safely inferred that the Commissioner made any relevant finding about part 2 (attempted indecent assault). (e) The inadequate "Statement of Reasons" unsatisfactorily leaves the applicant and his lawyers to infer or guess what the Commissioner found in relation to ground 4 and the mobile message. 178 I agree with the applicant that there were deficiencies in the Commissioner's Statement of Reasons. For instance, Ms Parkes did not need medical attention because of any condition but was directed to attend the doctor and Mr Hosemans did not expose his penis "to her" [Ms Parkes]. Further, the reference to "indecorous behaviour" serves little purpose and it is not clear whether it was alleged that Mr Hosemans was being untruthful about the content of the message he left on Ms Parkes mobile phone or his motives in leaving the message or both. 179 The Statement of Reasons lacked structure and precision. Nevertheless, I am satisfied that the Statement captured the essential reasons underpinning the Commissioner's decision to remove Mr Hosemans and was sufficiently comprehensible that Mr Hosemans was able to understand what those reasons were and was able to, and did, mount a coherent and comprehensive challenge to them. Tenth alleged procedural deficiency - the nomination, CCS, s 181D(3)(a) notice and s 181D(4) reasons expressly incorporated the fundamental misdirections in the Magistrate's reasons Eleventh alleged procedural deficiency - comments in the Magistrate's reasons ought not to have been made unless the issue was raised at the hearing and the witnesses in question had been given the opportunity to answer the charge Twelfth alleged procedural deficiency - the Magistrate 'palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' 180 It was submitted for the applicant "Obvious and plain errors exist on the face of the Magistrate's reasons." the errors contended by the applicant were as follows: (a) The Magistrate failed to adequately or at all deal with the recent inventions or reconstructions of the complainant. (b) The Magistrate misdirected himself on correct principle when considering the prior inconsistent statements of the complainant. (c) The lap incident was downplayed by the Magistrate in circumstances that the evidence of the complainant on this incident could only be treated as unreliable. (d) In relation to the evidence on the level of intoxication, the Magistrate allowed extraneous or irrelevant matters to guide or affect him, he mistook the facts and he did not take into account some material considerations. (e) In relation to the evidence of Mr Newman about the groping incident, the Magistrate mistook the facts and did not take into account material considerations. (f) A proper reading of R v Pureau (1990) 19 NSWLR 372 referred to by the Magistrate does not support his treatment of Mr Hosemans. (g) The Magistrate mistook the facts and did not take into account material considerations in the form of corroboration and rebuttal evidence in relation to the penis incident (Mr Sloane and Mr Kelly) and the lifting incident (Mr Robert Locke, Mr Michael Locke, Mr Sharah, Mr Nicoll, Ms Cumming, Mrs Deidre Locke, Mr Constable and Mr Woolfe). (h) The Magistrate did not exercise appropriate restraint in accusing Mr Hosemans and other witnesses of lying and that there was cover up and deceit. 181 It was submitted that the Deputy Chief Magistrate's reasons and, therefore, its fundamental misdirections were expressly incorporated into each of the following: (a) The s 181D nomination, which relied on nothing but the Magistrate's reasons. (b) The CCS extensively made reference to "The Magistrate in his summation …" (c) S 181D(3)(a) notice said, "Annexed to this Notice is a submission, which I have read and taken into account …" (d) S 181D(4) reasons said, "…in his summation". 182 I do not consider there can be any doubt that the Commissioner relied to a significant degree on the Deputy Chief Magistrate's decision in arriving at his decision to serve a Notice on Mr Hosemans and his subsequent decision to remove Mr Hosemans. 183 If I had come to conclusions on the evidence before me, which in a great many respects was the same evidence as that adduced before the Deputy Chief Magistrate, and those conclusions materially differed to those of his Honour, there may have been grounds to conclude that the Commissioner erred in removing Mr Hosemans. But that is not the case. Whilst I have reached different conclusions to those arrived at by the Deputy Chief Magistrate in relation to some matters, they are not so materially different that they would cause me to find that the Commissioner erred. 184 Moreover, whilst I do not agree with the use of extreme language by the Deputy Chief Magistrate in castigating certain witnesses and I question the basis upon which he indulged himself to the extent he did (in circumstances where there was a failure to raise with them their reasons for the evidence they gave based on Mr Hosemans' position or anything else), these proceedings are not an appeal from his Honour's decision. The function of this Court is to review the order made by the Commissioner removing Mr Hosemans and to determine whether the removal was harsh, unreasonable or unjust. The extent to which the Commissioner relied on the Magistrate's finding do not reveal any error that would justify a finding that Mr Hosemans' removal was harsh, unreasonable or unjust. Thirteenth alleged procedural deficiency - apprehension of bias exists on behalf of the Magistrate Fourteenth alleged procedural deficiency - actual or invincible bias exists on behalf of the Magistrate 185 The applicant contended there was an apprehension of, and actual, bias on the part of the Magistrate. This essentially arose from an interview by investigating police officers with the Magistrate some two months after the Deputy Chief Magistrate gave his reasons for decision. The interview stated: …it was his perception [the Magistrates] that the witnesses had been interfered with by Detective Sergeant HOSEMANS in that he perceived that because of the Sergeant's high profile witnesses would be somewhat apprehensive in giving evidence. The Magistrate admits he has no factual basis for this" The NSW Police record that the Magistrate "… believed that witnesses had been threatened by Hosemans although no factual proof". 186 Mr Docking submitted: In this matter that has already been decided by the Magistrate, it is sufficient that there is a possibility (real and not remote), not probability, that the Magistrate did not bring an impartial mind to the resolution of questions that were determined. The possibility of human frailty exists as demonstrated by the identification of what it is said led the Magistrate to decide the case other than on its legal and factual merits, namely, his perception that the witnesses had been interfered with by Mr Hosemans in that the Magistrate perceived because of the Sergeant's high profile witnesses would be somewhat apprehensive in giving evidence. The perception was held with no factual basis and no factual proof. The logical connection between this matter of perception and the feared deviation from the course taken by the Magistrate in deciding the case on its merits is that, despite no factual basis and no factual proof to support his perception and despite dismissing all charges, the Magistrate rejected objectively sound corroboration of Mr Hosemans and rebuttal evidence of Ms Parkes and Mr Johns; and instead made extreme and unwarranted comments about Mr Hosemans and other witnesses. … The Magistrate did not show the expected restraint in circumstances that it can safely be inferred that he knew parts of his published reasons were most likely to be published widely in the local media. As Superintendent Kuiters said, "The magistrate did acquit the Detective Sergeant of the charges but in his handing down of his decision, which was made public, he may as well have convicted him" 187 Mr Docking further submitted: This is a rare case in which actual bias was expressly voiced in the NSW Police interview. Actual bias is supported by inference from the actions of the Magistrate in making extreme comments about Mr Hosemans and other witnesses who corroborated him but rebutted Ms Parkes, as well as the Magistrate misdirecting himself in the ways set out above. 188 Counsel for the respondent submitted: (a) No application was ever made to the Magistrate that he should disqualify himself because of an apprehension of bias or because of actual bias because of the way in which he was conducting the trial. The applicant's submission wrongly confuses apprehension of bias based on the content of a decision or judgment and the conduct of the proceedings themselves. (b) The fact that, as a result of the hearing, the Magistrate formed views that went beyond those that were publicly expressed in his decision is not a basis at all for regarding the judgment as being affected by apprehended bias within the meaning of the relevant authorities. The fact that the Magistrate might have believed that there was witness tampering when he made no finding to that effect – a view he could only have formed from evidence in the trial in any event – does not translate into the judgment being affected (or infected) by principles relevant to apprehension of bias. Likewise the fact that Hosemans may have made comments that the Magistrate's decision was unjustified does not provide any basis for an apprehension of bias finding. (c) There is no basis for the serious assertion that part of the untruthfulness finding by the Magistrate stems back to the allegation that Hosemans interfered with witnesses. There is nothing in the decision or elsewhere in the evidence tendered before this Commission that could possibly support such a serious and mischievous allegation. Nothing is put in the submissions by Hosemans that the Magistrate commenced the trial with an infected mind – what Hosemans' submissions are really saying is that by the end of the trial the Magistrate had a view – that is completely unsurprising given that he had heard all of the evidence and submissions and was by reason of his office required to rule upon it. (d) There is no basis for the assertion in Hosemans' submissions that the Magistrate decided the matter other than on the evidence and submissions before him. The submission runs two concepts together in an illegitimate way. On the one hand, reference is made to the private belief held by the Magistrate as to witness tampering. On the other hand what the Magistrate said in his decision was that the profile of Hosemans could have affected the evidence given by certain parties. (e) Nowhere in Hosemans' submissions does he refer to anything that would support the view that the Local Court Magistrate prejudged the case against Hosemans or acted with such partisanship or hostility to show that he did not have an open mind. 189 However inappropriate it may have been for a judicial officer to subject himself to an interview regarding a criminal trial he conducted, especially when there was a possibility of further proceedings relating to matters covered in the trial, I do not consider, for the reasons submitted by the respondent, there was apprehended or actual bias on the part of the Deputy Chief Magistrate. Even if such bias existed, it has not infected the proceedings before this Commission, which has conducted this proceeding and made findings quite independent of those in the Local Court. 190 I find that to the extent there was procedural unfairness in the process leading to the removal of Mr Hosemans, that unfairness does not provide a basis upon which I am able to conclude that the removal was harsh, unreasonable or unjust. DELAY IN DECISION TO REMOVE APPLICANT 191 It was submitted by Mr Docking that the delay in the decision to remove Mr Hosemans was harsh, unjust and unreasonable where he continued to work as a police officer in a most commendable fashion and, in the meantime, he even won a promotion to a very senior position: Owens v New South Wales Police Service (1998) 87 IR 1 at 9 and 13; Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [146], [164]-[169], [224]. 192 It was further submitted after Mr Hosemans was charged he continued to perform criminal investigation duties at the Chifley Local Area Command working out of the Bathurst Police Station. Initially seconded to a task force investigating the disappearance and suspected murder of a local female. After some months on this task force returned to performing duties as the Investigations Manager being responsible for the direct supervision of two Detective Sergeants and ten Criminal Investigators of the various ranks of Constable. He had the responsibility as supervisor of the Informant Management Register. 193 Shortly before 19 December 2002, after previously submitting an application and undergoing an interview process, Mr Hosemans was nominated for promotion to the rank of Chief Inspector. He was listed on a schedule to be transferred to the Bankstown Local Area Command effective on 3 March, 2003 in the position of Duty Officer. 194 The charges against Mr Hosemans were laid in November 2001. The Local Court proceedings occurred in May and July 2002. Mr Hosemans was served with the s 181D Notice on 19 December 2002. On 26 March 2003 Mr Hosemans was served with the Commissioner's removal order. 195 For the Commissioner it was submitted that upon the Magistrate delivering his reasons for decision on 19 July 2002 there were a number of matters that were considered and were the subject of discussion in the months that followed – and in addition there was an investigation that resulted in Mr Hosemans being served with the Notice on 19 December 2002. Given the kinds of issues and the nature of the investigation that needed to be undertaken any question of delay, it was submitted, was hardly such as to warrant a finding that the removal was harsh, unjust or unreasonable. In addition, Mr Hosemans was not subject to any detriment by reason of being suspended either with or without pay during the period between July and December 2002 and nor has he pointed to any specific or particular prejudice that any such delay has caused him in any way. 196 It was submitted by counsel for the respondent that there was no delay such as to lead the Commission to conclude Mr Hosemans was dealt with harshly, unjustly or unreasonably. 197 I do not consider any of the attendant features relating to delay in Owens or Burrows and Giardini are present in this case. The Local Court proceedings concluded in July 2002. It must be expected that a proper investigation by police following those Court proceedings would take some time and in December 2002 Mr Hosemans was served with a Notice. He was removed four months later. Whilst I consider there was an element of delay, especially between December 2002 and March 2003, it was not such as to be inordinate and to lead to any injustice. WHETHER PENALTY OF REMOVAL TOO SEVERE 198 Mr Docking submitted whatever view is taken of the allegations, and given Mr Hosemans' professional service, reputation and character, removal was far too severe a penalty. Further, it was submitted Mr Hosemans' extremely strong personal and economic circumstances militate heavily in his favour. For example, his evidence was: …I have been trying to come to terms with the upheaval of the whole issue and looking towards the resolution of the matter with the hope of continuing my police career. I have since spent my annual and long service leave pay out on living expenses and I am currently receiving on average $400 per week before tax. I have been forced to sell my motor vehicle and am currently in debt for approximately $40,000.00. 199 It was submitted that the Commission must have regard to the interests of the applicant (s 181F(3)(a)). Reference was made to Van Huisstede (No 1) at [216]-[219]: 216 The intent of the sub-section is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217 However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. 218 The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. 219 In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. 200 The respondent submitted that Mr Hosemans was a person who had been found in the Local Court to have lied on his oath and who had lied on his oath in this proceeding so as to support a totally fabricated account of the matter in which he dealt with Ms Parkes on the evening of 20 October 2001. 201 It is entirely beside the point, it was submitted, that Mr Hosemans gave self serving evidence in the proceedings that there was not lack of confidence within his Local Area Command as to his competence, integrity, performance or conduct as an officer – the matter of confidence is one for the Commissioner to retain and undoubtedly is informed by public interest considerations. 202 The respondent accepted that the Commission must have regard to the interest of the applicant. So to, it was submitted, must the Commission have regard to the public interest (s 181F(3)(b). Reference was made to Dangerfield v Commissioner of Police [2003] NSWIRComm 96 at [120] where Staunton J found in circumstances where she had made adverse credit findings about Mr Dangerfield he was unable to be returned to the Police Service and contribute to the maintenance of the integrity of the Service in a way that the public interest demands and expects. In those circumstances her Honour found that the public interest considerations far outweighed those of the individual. It was submitted the position was no less here and having regard to the motivating force behind the false story erected by Mr Hosemans those considerations are stronger in the present circumstance. 203 Counsel for the respondent submitted: The Commission's discretion to make order by way of remedy would in these proceedings only activated upon a finding that Hosemans removal was harsh, unjust or unreasonable. It would then be necessary for the Commission to have regard to the nature of any findings that it made in determining the appropriate remedy. If, for example, the Commission were for one reason or another contrary to these submissions to find that there were procedural matters that gave rise to any relevant harshness, unjustness or unreasonableness or that the delay gave rise to such a finding the Commission would be confronted with needing to determine as a matter of discretion what order should be made. This would be in circumstances where the substantive matters have been determined either fully or even partly in favour of the Commissioner. In short it cannot be said that a person who is a liar is a person who should either be rewarded by way of compensation or alternatively reinstated or reemployed within the Police Service. Similarly a person who showed no or little understanding of inappropriateness of manhandling female bar attendants in public places in the way that Hosemans did cannot be said to be an appropriate person to be returned to the New South Wales Police Service. In those circumstances there would be significant matters of discretion that would operate against any order that would result in Hosemans returning to the Service of the Commissioner. 204 I do not accept that removal was too harsh a penalty given the applicant's misconduct. CONCLUSION 205 I have come to the following conclusions: 1 As to ground 1 in the s 181D Notice, I find that Mr Hosemans did not assault Ms Parkes and he did not attempt to indecently assault Ms Parkes. Mr Hosemans did, however, attempt to grab at Ms Parkes' breasts. 2 As to ground 2 in the Notice, I find that Mr Hosemans exposed his penis in the bar area of the Bathurst Golf Club. 3 As to ground 3 in the Notice, I find that Mr Hosemans did not assault Ms Parkes but he did lift Ms Parkes by placing both his arms around the vicinity of her waist and buttocks and lifted her bodily off the ground. The contact between Mr Hosemans and Ms Parkes was non-consensual and Ms Parkes found it objectionable. 4 As to ground 4 in the Notice, I find Mr Hosemans was untruthful in giving evidence in the Bathurst Local Court in May 2002 during the hearing of charges against him in relation to: (i) His evidence in regard to exposing his penis. (ii) His evidence regarding himself and Ms Parkes in lifting her bodily off the ground. (iii) His evidence regarding his motives for leaving a message on Ms Parkes' mobile phone on 21 October 2001. 5 Any denial of procedural fairness was not so fundamental that it outweighed the seriousness of Mr Hosemans' conduct. Indeed, much of the complaint about procedural unfairness was at the periphery. 6 There was not such delay in the process culminating in Mr Hosemans removal as to amount to being harsh, unreasonable or unjust. 206 It will be apparent that the Commissioner has not made out all of his grounds upon which he relied for loss of confidence in Mr Hosemans. In my opinion, however, they have been sufficiently made out so as to preclude any intervention by this Commission in relation to the Commissioner's removal order. In particular, Mr Hosemans' untruthfulness in the witness box is inimical to his role as a police officer and in balancing the interests of Mr Hosemans and the public interest as I am required to do under the statute, the public interest prevails. 207 Accordingly, I find that the removal of Mr Hosemans was not harsh, unreasonable or unjust. I have come to that conclusion with considerable regret because in terms of Mr Hosemans' competence and performance as a member of NSW Police it was never put in question and, indeed, Mr Hosemans was a good officer. The irony, I think, is that if Mr Hosemans had not been untruthful in giving his version of the various incidents that occurred on 20 and 21 October 2001 it may have been that his misconduct would not have attracted the sanction of removal because as I have found, there was no assault or attempted indecent assault, although exposure of his penis and his manhandling of a female would have made a less severe penalty problematic. 208 The application by the applicant for relief is refused. _____________________________ 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.