Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201

Industrial Relations Commission of New South Wales

CITATION: Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201

APPLICANT Steven Probst PARTIES: RESPONDENT Commissioner of Police

FILE NUMBER(S): IRC 287 of 2009

CORAM: Sams DP

POLICE ACT - application for a review of an order of the Commissioner of Police - disciplinary transfer - findings of misconduct - allegations of domestic violence - 'word on word' case - initial investigation - non co-operation of complainant - findings of misconduct not sustained - further allegation of incident of domestic violence - attendance of police - police statements - Queensland Magistrates proceedings - application dismissed - incident of domestic violence found to have occurred - credibility of complainant - earlier allegations of domestic violence revealed - complainant unco-operative - postings on website - applicant denies all allegations - claim that complainant's medical condition renders her the aggressor and her evidence as unreliable - claims of corruption and bias - complainant gives interview to police - investigation re-opened - new Investigator appointed - claims of bias - Investigator finds allegations proven - complainant a person of credit - applicant's pressure on complainant - solicitor's letter seeking to question complainant's evidence - Victoria Police and NSW DPP decide allegation would not meet criminal standard of proof - Investigator recommends s 181D loss of confidence finding - Commissioner of Police decides against removal of officer - referral back for management action - s 173 review process initiated - claims of procedural unfairness - Investigator failed to interview relevant persons - no eyewitnesses to any incidents - profiles of domestic violence - decision maker failed to give consideration to relevant matters - use of template documents - decision maker misdirected himself or was misdirected by others - decision made by unknown persons- failure to follow mandatory procedures - decision maker finds allegations proven on balance of probabilities - whether order 'beyond power' - whether order 'harsh, unreasonable or unjust' - applicant seeks return to former position- compensation and costs sought - harshness of transfer - competing interests - public interest - applicant's interests - character references and good work record. CATCHWORDS: APPLICATION FOR A REVIEW OF AN ORDER OF THE COMMISSIONER OF POLICE - Held; complainant's evidence to be preferred over that of the applicant's evidence - complainant's consistent version of events told many times and under oath - medical condition a 'red herring' - no evidence of medical condition - complainant's lies understandable - pressure put on complainant to withdraw her allegations or question her reliability as a witness - emotional blackmail - complainant's version has 'ring of truth' - all allegations found to have been sustained - issues of procedural unfairness - principles considered - order not 'beyond power' - procedural irregularities not outweighed by seriousness of allegations - Victoria Police and NSW DPP letters not relevant - investigation thorough and exhaustive - decision maker gave proper consideration to all relevant matters - decision maker did not misdirect himself - applicant knew the nature of the allegations and was able to properly respond - applicant given every opportunity to defend himself against the allegations - Commissioner of Police did not condone behaviour - no issue of procedural unfairness sufficient to outweigh seriousness of the allegations - public interest outweighs applicant's interests - character references unhelpful - good record considered - order not 'harsh, unreasonable or unjust' - application dismissed.