Industrial Relations Commission of New South Wales CITATION: Saliba and Commissioner of Police [2006] NSWIRComm 200 APPLICANT PARTIES: Fouad (Fred) Saliba RESPONDENT Commissioner of Police FILE NUMBER(S): 3812 of 2005 CORAM: Sams DP Review of disciplinary action against police officer - transfer constitutes reviewable action - s173 order under the Police Act 1990 - whether order harsh, unreasonable or unjust - allegations of releasing confidential information to another police officer - potential to compromise sensitive investigation - allegations of misconduct - basis upon which s173 order made - whether misconduct was proven to requisite standard - whether other actions against applicant sufficient penalty - stress and humiliation -17 years record of service - command of other top level investigations - praise from superior officers - interests of the applicant - public interest - whether these interests are competing - relevant principles and authorities. CATCHWORDS: Held, identity of persons suppressed - concessions of witnesses - applicant did not disclose confidential information - investigation completed - investigation not compromised - further lines of inquiry unrelated to substantive investigation - misconduct not proven to requisite standard - penalty disproportionate to misconduct and therefore harsh - past service and character references taken into account - no impracticality to returning applicant to former command - interests of applicant balanced with public interest - order revoked. LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Commissioner of Police v Evans [2006] NSWIRComm 170 CASES CITED: Laird v Commissioner of Police [2001] NSWIRComm 253 Mahoney v Commissioner of Police [2003] NSWIRComm 67 Van Huisstede v Commissioner of Police (2000) 98 IR 57 HEARING DATES: 26/04/06, 27/04/06, 28/04/06 DATE OF JUDGMENT: 06/23/2006 APPLICANT Mr L Nicholls of counsel SOLICITORS Oates and Smith LEGAL REPRESENTATIVES: RESPONDENT Mr P Skinner of counsel SOLICITORS Crown Solicitor's Office JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS DP 23 June 2006 Matter No IRC 3812 of 2005 Fred Saliba and Commissioner of Police Application under section 173 of the Police Act 1990 for review of an order of the Commissioner of Police DECISION [2006 NSWIRComm 200 1 This matter concerns an application by Detective Sergeant Fouad ('Fred') Saliba ('the applicant') for the rescission and/or variation of an order pursuant to s173(6) of the Police Act 1990 ('the Act') made by then Chief Superintendent L P Baker (now retired), on 18 July 2005. 2 After the applicant had been served a notice under s173(5) of the Act on 11 April 2005 and upon considering the applicant's response of 21 June 2005, Superintendent Baker, as the delegated authority, was satisfied that the applicant had misconducted himself and that he should be transferred from the Investigations Unit, Professional Standards Command to Flemington Local Area Command (LAC). The details of the alleged misconduct are identified in the order and are set out below: I, Chief Superintendent L.P. Baker, Director Operations, Professional Standards Command, pursuant to delegation of authority in this connection, having duly considered your conduct, have determined that a reviewable order under section 173(2)(d) Police Act 1990 , should be made arising from and in respect of your misconduct. I refer to having served on you a Notice under section 173(5) Police Act 1990 on 11 April 2005. In reaching this decision I have carefully considered the contents of this C@tsi P0402767, the notice served upon you pursuant to section 173(5) and your written response to the notice dated 21 June 2005. In particular, I have given due consideration to the answers provided by you during the subject investigations. Your previous conduct and performance has also been taken into account. Having carefully considered the matter I am satisfied that you have misconducted yourself as follows: Sometime between Thursday 3 June 2004 and Saturday 5 June 2004 whilst you were a participant in an UC course you had a conversation with Detective Sergeant Wyver about source 5505. Source 5505 had previously provided information to an internal police complainant in relation to an investigation known as Operation Norwich. This investigation related to an investigation into allegations of a police officer supplying drugs. This investigation was undertaken by Shoalhaven Local Area Command but was later taken over by Professional Standards Command and renamed Operation Nothern. The main target of this investigation worked at Warilla Police Station. At the time of your conversation with Detective Sergeant Wyver in June 2004 you were the case officer for Operation Nothern. You asked Detective Sergeant Wyver if he had any knowledge about source 5505 and indicated that you wish to speak further to him about source 5505. At this stage you were aware that Detective Sergeant Wyver was stationed at Warilla Police Station and had acted as the support person for the main target of Operation Nothern during a departmental interview on 12 February in Nowra during Operation Norwich. In that conversation with Detective Sergeant Wyver you improperly released information to Detective Sergeant Wyver in relation to source 5505. You did not have the consent of any person to make the approach to Detective Sergeant Wyver nor did you seek the views of your team or team leader. An adverse finding was made that you interfered with an internal investigation, that being the release of confidential information to Detective Sergeant Wyver. I have formed the view that your conduct has been shown to be unsatisfactory and you should be subject to the following action. You be transferred from the Investigations Unit, Professional Standards Command to Flemington Local Area Command. You have the right to seek a review of this Order by the Industrial Relations Commission on the grounds that the order is beyond power, or is harsh, unreasonable or unjust. You have twenty-one (21) days to lodge your application for review from the date of service of this order. There is also provision for administrative review by the Supreme Court. You may seek independent legal advice in relation to your rights and obligations. This order takes effect twenty-one (21) days from the date of service upon you of this order or where an application for review is filed, when the application is finally determined. 3 In light of the sensitive and confidential nature of the matters raised in these proceedings, consent orders were made such as to ensure the identity of certain persons would not be made known. BACKGROUND 4 Since becoming a Police Officer in April 1989, the applicant had primarily worked as a detective; firstly at Cabramatta and then at Liverpool. In October 2002 the applicant attained the rank of Detective Sergeant within the Investigations Unit of the Professional Standards Command. 5 This position led to him being assigned as a case officer to "Operation Nothern" in 2003. This was a covert investigation into allegations made by a registered source 5505, hereinafter referred to as 'A', of corrupt conduct by a serving Police Officer, Senior Constable Fox; namely, he was dealing in prohibited drugs. The investigation between November 2003 and the end of March 2004 did not uncover any evidence to support the allegations. The applicant had conducted various interviews in early April 2004 and began drafting the Investigator's Final Report at this time. 6 The applicant interviewed 'A' on 21 April 2004. He reported to his supervisor, Inspector Paul Pisanos, that he had doubts about the information she was supplying to the police, including the naming of two other officers, one being Detective Sergeant Brian Wyver. 7 On 22 April and 27 May 2004 the applicant submitted two applications for extensions to complete the investigation with a view to finalising the matter and to consider whether charges should be laid against 'A' for making a false complaint. 8 Between 31 May and 11 June the applicant undertook an undercover course. Detective Sergeant Wyver was also a participant. During the course, around 2 June, the applicant had a conversation with Detective Sergeant Wyver. The applicant's version of what was said was included in a report he prepared at the direction of Mr Baker on 12 July 2004. It is recorded as follows: I said, "Do you know A?" He said, "yes, that's C's informant she did a job for me but was no good, why?" I said, "I can't talk about it right now but I need to speak to you about her when the course is finished." He said, "yeah no worries." I said, "I'm back at work on Tuesday the 15th of June I'll give you a call." He said, "yeah no worries, come and see me." I said, "I'll probably need you to come and see me." He said, "No worries Fred give me a call." 9 After returning from annual leave on 12 July 2004, the applicant said he informed Inspector Pisanos of the conversation and was told that Detective Sergeant Wyver had confronted another officer (hereinafter identified as 'C') and accused him of being a complainant in the original allegations. The following day, the applicant was placed on restricted duties which prevented him from his investigative role. 10 On 5 August 2004, the applicant participated in a recorded interview with Detective Inspectors Gary Merryweather and Robert Norval. The interview of over 350 questions extended over 77 pages of transcript and was tendered in evidence. 11 The applicant said that between August 2004 and February 2005 he was given little or no meaningful work and this had caused him anxiety and depression. 12 On 28 February 2005 the applicant was temporarily transferred to the Macquarie Fields Local Area Command and was assigned the Commander of Strike Force Loudon to investigate the Macquarie Fields riots of February 2005. This was a four month investigation involving 15 staff. Detective Chief Inspector Matthew Appleton of Macquarie Fields Police Station provided an affidavit in the proceedings which included the following extract: Strike Force Loudon, under the direction of Fred Saliba was extremely successful. Fred Saliba provided strong leadership and investigative proficiency in a difficult environment. He managed his staff well and was innovative in his approach to the investigation, in particular, in the fields of technology and a proposal for legislative change. Through my exposure to Fred Saliba I can say that I have found him to be a person who speaks his mind. He is a diligent investigator who always looks to the welfare of his staff and applies commonsense when assessing situations. 13 On 11 July 2005 the applicant was transferred to Flemington LAC and is currently performing criminal investigation duties at Auburn Police Station in which he supervises eight other investigators. 14 In another supporting affidavit, Chief Inspector Rebecca Franks of Flemington LAC described the applicant this way: Detective Sergeant Saliba is a highly dedicated, experienced and competent Police Officer. He possesses the skills of an experienced investigator, of which he has demonstrated on a number of occasions over the past five months. He possesses a high level of competence in the areas of performance management, criminal investigations and management of the Detective's office in general. Detective Sergeant Saliba is a committed, honest and forthright officer, of whom, I hold in the highest esteem. Detective Sergeant Saliba chooses to lead by example for his staff, and demonstrates the highest standards of integrity and honesty. I recommend Detective Sergeant Saliba, without reservation, as a committed and highly competent officer. 15 Neither Inspectors Appleton or Franks were required for cross examination. 16 The applicant deposed that throughout his career he had conducted all types of criminal investigations, including investigations of police corruption and he had led major complex investigations. He said he had never deliberately done anything to compromise any departmental or criminal investigation. 17 In a six page reply to the show cause notice, the applicant did not deny that his conduct during the undercover course was inappropriate, but described it, at most, as an error of judgement. The applicant said he had approached Sergeant Wyver for the following reasons: 1. The investigation into Officer B was complete and the first draft of the investigator's final report had been submitted to his team leader. 2. Professional Standards Command management was aware of his intentions to investigate source"A"with respect to an offence under section 176"A"of the Police Act as this was discussed during a number of operation meetings involving team leaders and the Commander of Professional Standards Command between 21 April 2004 and 31st of May 2004 as well as office meetings when other investigators were present, during the same period. 3. The identity and participation of all involved would inevitably be revealed during any prosecution of Source A. 4. Officer E was present during the alleged meeting between source A and Officer D and he was vital to our client's investigation into source A. 5. Officer D was an important witness, who was nominated in the ERISP by source A, to have been present at a particular meeting. 6. To confirm his knowledge of source A and his availability to supply a statement between the 15th and 18th of June, 2004. 7. To take advantage of an opportunity that had presented itself knowing that the investigation had already been subject to a number of applications for extensions. Furthermore, the fact that our client was involved in the course allowed him to raise the issue in a casual, unexpected fashion, more like the type of conversation or query which often takes place between police, rather than by a formal approach for information or interview. 8. Only Officer C was aware of an investigation being conducted by the Professional Standards Command into Officer B. Officer D should therefore have had no knowledge of the interest of Professional Standards Command and been unable to "connect the dots". 9. The focus of our client's conversation with Officer D was to confirm an alleged meeting and to identify Officer E. At no time did our client discuss Officer B. 18 The applicant said he accepted the gravity of the matter, but regarded the disciplinary transfer as overly harsh. He appreciated the error of his conduct and was determined not to err again. He proposed that if any further action was warranted, it be limited to transfer to Flemington LAC. 19 In further evidence in chief, the applicant drew a distinction between the conclusion of the investigation into the accused officer and the extensions of the investigations (22 April, 25 May, 15 June, 4 July) to determine whether charges could, or should be laid against 'A'. He contended that his investigation had been largely completed by April or May, three to four weeks before he attended the undercover course. 20 The applicant said that a week or two after he interviewed 'A', he was instructed to prepare a matrix of all his lines of inquiry. He presented this to Inspector Pisanos who expressed satisfaction with it. 21 The applicant detailed his many years of experience with undercover operations and informants. This commenced about two years after he joined the force in an operation into heroin dealers at Cabramatta. He acknowledged the importance of keeping sources' identities secret, protecting them and conducting risk assessments on them. His present role required him to assess informants' sources and assess operational plans and ensure confidentiality. 22 The applicant insisted that he did not release any confidential information to Sergeant Wyver at the undercover course or improperly release information concerning the person 'A'. 23 The applicant wished to return to his former command in the Professional Standards Command, a command he regarded as very important and one which could best utilise his skills and knowledge. He envisaged no difficulties in returning and working with Inspector Pisanos, particularly as Superintendent Baker had retired. He believed there had been some personal conflict between himself and Mr Baker. However, in cross examination, the applicant accepted that the investigation into this matter had included many more senior officers than Mr Baker and involved referral to the Complaints Management Team and to an Internal Review Panel. 24 In cross examination, it was put to the applicant that there were six identifiable versions of what he had said or not said to Sergeant Wyver at the undercover course. Firstly, what he told Inspector Pisanos when he returned to work on 12 July 2004. The second on the same day in his report to Superintendent Baker (earlier quoted). Thirdly, what he said in his record of interview on 5 August. Fourthly, what Sergeant Wyver said in his own interview of 18 August. Fifthly, the applicant's solicitor's letter of 21 June 2005. Sixthly, what he said in his affidavit for these proceedings. The applicant said the second, fifth and sixth versions were essentially the same. 25 The applicant questioned Inspector Pisanos' version of their conversation on 12 July 2004. He said it had been a very informal discussion between mates. He had told the Inspector that he had run into Sergeant Wyver at the course and he was intending to get a statement from him about the reliability of 'A'. The applicant had known Sergeant Wyver had been stationed at Warilla where the officer 'C' and S/C Fox were also stationed. He was also aware Sergeant Wyver had been S/C Fox's support person when he was interviewed by senior officers in respect to Operation Nothern. However, he said he had not seen an urgent need to declare his conversation with Sergeant Wyver, but did so as soon as he returned from annual leave. 26 The applicant conceded that while he had not inferred or suggested any link between source 'A' and 'C', Sergeant Wyver could have put "two and two together". In hindsight, he agreed he would have done things differently. 27 The applicant acknowledged that he had signed an investigator's agreement which referred to appropriate levels of confidentiality as does the statutory protection for informants under the Police Act, Regulations and the Police Code of Conduct. 28 In re-examination, the applicant said that during S/C Fox's interview there was no link established between 'A', 'C' and S/C Fox. He had not been interviewed as a result of anything 'A' or 'C' had said or done. 29 Detective Sergeant Brian Wyver has been a police officer for 26 years, primarily involved in criminal investigation. On the 18 August 2004, Sergeant Wyver participated in a recorded interview with Detective Inspectors Norval and Merryweather. The transcript of interview was tendered in evidence. It related to two matters - the alleged conversation Sergeant Wyver had with 'C' in the manager's office of the Warilla Police Station on 11 June 2004 and the conversation he had with the applicant on 2 June 2004 at the undercover course. He deposed that the answers he gave in the interview were true and correct to the best of his knowledge and belief. 30 During his career, Sergeant Wyver estimated he had conducted around 20 internal investigations. He is currently a team leader at the Lake Illawarra Local Area Command. 31 Sergeant Wyver confirmed he had been a support person for S/C Fox, who it was alleged had been engaged in inappropriate behaviour in relation to a drugs matter. He had known of no connection between S/C Fox and 'C's source, 'A'. Sergeant Wyver was shown the name of 'C's' sources and confirmed he knew 'A'. He had known of source 'A' through 'C', not as a result of the applicant's investigation, but because of another operation, Strike Force Brotherhood. 32 Sergeant Wyver referred to the conversation with the applicant on 2 June at the undercover course. He had said that 'C's source, who he mentioned by her first name had "dropped" his name during an investigation and had said she'd had bad dealings with him. The applicant had said that "we're doing some work down your way and I might need to speak to you at some stage about her" "and I think I just said 'oh fine, that's fine'". Sergeant Wyver said the conversation wasn't very long. He knew who the applicant had been referring to. Sergeant Wyver didn't think much of it and had never mentioned it to anyone. There had been no further contact with the applicant. 33 The first time he was asked to recall the conversation with the applicant on 2 June was on 18 August. He agreed that after the passage of time, his recollection may not have been entirely accurate. He had made no notes of the conversation and it was brief and general. 34 Sergeant Wyver said that the first time he was aware of the allegation that he confronted 'C' at Warilla Police Station on 11 June was when he was interviewed on 18 August. 35 In oral evidence, Sergeant Wyver denied he had any conversation with 'C' on 11 June arising from what the applicant had said to him on 2 June. He agreed, however that he may well have had a conversation with 'C' about the source, because the source had been used in a separate Strike Force, and he had spoken periodically to 'C' about her. 'C' was unhappy about the way his source had been treated in respect to a reward for information. 36 Sergeant Wyver had spoken to 'A' when 'C' had been on holidays. She had known him and asked to speak to him about certain information. However, Sergeant Wyver said he had no other contact with her other than her being 'C's source. When the applicant mentioned her name, Sergeant Wyver obviously had known who she was. 37 Further, Sergeant Wyver denied he had attempted to intimidate 'C' on 11 June 2004. On the contrary, he had been very supportive of him and he was a difficult person to manage. 'C' had been under significant stress at the time. Sergeant Wyver denied saying anything about having a mate at Internal Affairs. In any event, he doesn't. 38 As an experienced officer, Sergeant Wyver was asked whether he would have had the conversation the applicant had had with him. He said he wouldn't have "but that doesn't mean it's not right". 39 In further oral evidence, Sergeant Wyver confirmed that until his own record of interview on 18 August 2004, he had no knowledge of any link or connection between S/C Fox and 'A' or 'C'. In particular, in his conversation with the applicant on 2 June, nothing was said which led him to believe that 'A' was involved in any way with the investigation of the Fox matter. 40 In a second record of interview on 26 August, Sergeant Wyver agreed he had said the applicant's approach had been unusual, but only after being pressed by the senior officers. The applicant had used 'A's first name, but didn't name her as a registered source. The applicant had said he needed to speak to him later as a witness. However, it was not uncommon for detectives to speak amongst themselves and seek statements later. Sergeant Wyver said that he had not thought it appropriate to have reported the conversation to senior officers. Sergeant Wyver said that the applicant had not disclosed any information about the investigation he was conducting or what they had been interviewed about and had not raised any link between 'A' and 'C'. 41 Sergeant Wyver was disciplined for his alleged conversation with 'C' on 11 June, even though he maintained it never happened. He said the action had been non-reviewable and he could not appeal it, even though the allegation was untrue. He denied that he had confronted 'C' and called him "the snitch of the dog who dobbed in Foxy". This allegation had never been put to him and he would never have said such a derogatory thing. Rather, he had always tried to help 'C' and assist him in every way, including visiting him at home and acting as his support person. 42 Mr Lawrence Baker retired from the Police Service on 31 January 2006 at the rank of Detective Chief Superintendent. As Mr Baker had held the position of Director of Operations he had delegation to make decisions pursuant to s173 of the Police Act. 43 Mr Baker deposed that after he had received the applicant's report of 12 July 2004 he referred the matter to the Complaints Management Team (CMT). An investigation was conducted by Detective Inspectors Norval and Merryweather. Their report was considered and accepted by the CMT, which had recommended the applicant be subject to disciplinary transfer. The matter was then referred to an Internal Review Panel (IRP) which confirmed the disciplinary transfer. An extensive folder of the material provided to the IRP was tendered in evidence. 44 A formal notice was prepared and signed by Mr Baker on 11 April 2005. Submissions were received by the applicant's solicitor and considered by Mr Baker and informal discussions had been held with the applicant. However, Mr Baker said that the order was not changed after considering all the representations. The notice was issued accordingly. 45 In oral evidence, Mr Baker said that he had taken account of all the material in the folder earlier referred to and he denied that he had any personal animosity towards the applicant. 46 In cross examination, Mr Baker said that the confidential information released by the applicant to Sergeant Wyver was the name of source 5055 ('A'). He believed he disclosed her full name and that there was a very good chance Sergeant Wyver would have known her because Sergeant Wyver had been the support person for an officer who was the subject of allegations brought by her. 47 Mr Baker was referred to Inspector Stewart Rainie's view that Sergeant Wyver had no knowledge of any link between source 'A' and the Fox matter. He did not disagree with this view. Sergeant Wyver's knowledge of 'A' may have been through his work on Strike Force Brotherhood. 48 Mr Baker said the basis of his order was a report of the applicant of 12 July 2004 (see para 2). Mr Baker agreed that in this report 'A' is not disclosed as a source or complainant in any matter. Nor did it disclose 'A' as being connected in any way with the Fox matter. Further, Mr Baker agreed that the conversation did not disclose the nature of any investigation. Nor did the applicant raise the name of 'C' or that he was a police internal complainant or that 'C was involved in the Fox matter. The conversation merely records the applicant asking Sergeant Wyver if he knows 'A'. It does not record anything about what he knew. 49 Mr Baker agreed his order did not contain any reference to the applicant saying "I need to speak to you about it when the course is finished". Mr Baker didn't consider this part of the conversation relevant to the issue that the applicant had spoken to Sergeant Wyver about the source. Mr Baker agreed that in the applicant's 12 July report, he had stated that Operation Nothern had all but been completed (around 22 April) and what remains was whether 'A' could be prosecuted for making a false complaint. 50 Mr Baker was shown extension reports prepared (in April and May) by the applicant and agreed the applicant was being open with his team leader about wishing to speak to a number of police officers. Mr Baker accepted that as far as he knew, the applicant was never prevented from doing so. Mr Baker agreed that the allegation of interfering in an internal investigation was Operation Nothern, even though it was largely concluded by the time of the conversation with Sergeant Wyver. However, Mr Baker couldn't be sure if, at that time, the final report had been completed. 51 Inspector Paul Pisanos was the applicant's immediate supervisor and the Team Leader for Operation Nothern. He provided an affidavit and transcript of his interview with Detective Inspectors Merryweather and Norval on 3 August 2004. Also attached was an e-mail he sent to Superintendent Paul Fehon on the morning of 12 July 2004, immediately after his conversation with the applicant that day. The relevant extracts from that e-mail are as follows: As per our discussion, About 10.30am, I commenced briefing D/S Saliba after his lengthy absence from the IU. Specifically, my briefing with him flowed on from the outcomes of the meeting with Mr Carroll and Mr Collins on 28 June 2004 at the South region office regarding S/C Fox. Specifically, I asked D/S Saliba to contact A/Cmdr Loy at Shoalhaven LAC to work on strategies regarding resolving outstanding issues on the Norwich/Nothern files involving Fox. It was toward the end of the conversation that D/S Saliba and I discussed pursuing a possible prosecution involving the original Source named"A"for false/misleading information. Leading from this, D/S Saliba said words to the effect of "I have to speak to the Greek bloke down there (Lake Illawarra) about that matter". I said (IS) words to the effect of "Who, C?" Saliba said, "Yes, and the other guy down there who came up in the complaint information." IS "Who, Brian Wyver?" Saliba said, "Yes". IS words to the effect of, "Mate, don't do anything yet regarding those witnesses until we work out whether the Command intends to pursue a prosecution in the matter against A". Saliba said "OK". He then continued with words to the effect of "I was speaking to Brian Wyver at the UC course regarding Aand her reliability." IS words to the effect of, "You what... You spoke to him about A?" Saliba said "Yes, I have been on another course with Wyver in the past and I know him, and I was discussing A with him and C's assessment of her as a reliable 'gig', and Wyver didn't agree with C's assessment of her as reliable." IS words to the effect of, "Mate. I am going to stop you there. While you were on leave, an issue arose where questions were raised about a possible compromise of the Nothern job and improper approaches to C. You may be an involved officer Fred. I am going to seek some advice on the content of this conversation immediately. I don't want you to talk to anyone about this matter." Shortly before 11.00am, I briefed Detective A/Supt Fehon regarding the above the conversation. About 11.00am in my presence, Detective A/Supt Fehon again directs D/S Saliba not to discuss the above matter with anyone whatsoever, including those on his (my) team until further advised. Walking back to our section of the office, I could see that D/S Saliba appeared obviously concerned. I reinforced to D/S Saliba not to discuss the matter with anyone. I also said that I was available to assist in regarding any general concerns or welfare issues in the interim until the matter was resolved. I asked him not to feel isolated from the rest of the team as he was a very valuable part of the team and he had a lot of important work to do regarding Operation Nothern to take that matter to finalisation. 52 During his interview Inspector Pisanos said that the applicant would have known Sergeant Wyver was S/C Fox's support person. The Inspector did not believe the applicant's approach to Sergeant Wyver was appropriate and it gave him cause to question his confidence in him. Nevertheless, the Inspector said he regarded the applicant as an intelligent person with the level of competence and skill as an investigator. However, he had had cause to question the applicant's level of personal and professional maturity. For example, on occasions he had said things without giving them a great deal of thought. 53 Inspector Pisanos believed that there may have been a conflict of interest having Sergeant Wyver as an assessor on the undercover course, bearing in mind his association with S/C Fox. However, at the time, he had been unaware of who was attending the course. Inspector Pisanos said this whole matter was a very sensitive one and he would never have condoned the applicant raising the matter at such a forum. 54 In oral evidence, Inspector Pisanos described the process of setting up internal investigations. A standard investigator's agreement is prepared which identifies the officers to be involved in the investigation and sets out fundamental rules that should be considered before commencing an investigation, including ensuring appropriate levels of confidentiality. However, these conditions would not need to be spelt out in detail because officers would be expected to understand the sensitivity of ensuring strict confidentiality. 55 Inspector Pisanos said that initially it was believed S/C Fox may have been aware of the investigation and that the investigation may have been compromised from the outset. However, it was decided to use this to the investigator's advantage. He said it was very clear from the outset that no one was to talk about the investigation until it was decided to bring other players into it. After some months, the investigation came to be talked about more when other persons were brought in. 56 Inspector Pisanos deposed that as at 12 July 2004, Operation Nothern, as far as internal affairs was concerned, had been finalised. There was then consideration of action against source 'A' for making a false complaint. However, this action had to be approved by senior commanders. The applicant had declared the need to possibly speak to other people. However, there had been no discussion of timing or what should then happen. 57 In cross examination, Inspector Pisanos referred to a conversation he had with Acting Inspector Wayne Thorn on 21 June 2004 concerning the alleged confrontation between Sergeant Wyver and officer 'C' in the manager's office on 11 June 2004. It has been alleged that Sergeant Wyver had said to 'C' "you are the dog that put in Foxy's matter". Acting Inspector Thorn had learned of this incident from another officer. When Inspector Pisanos later discussed this with Superintendent Fehon, he was informed that it had already been reported through the Complaints Management Team process. This was why he had said to the applicant on 12 July that he may be an involved officer. He didn't believe this was a breach of confidentiality on his part. Inspector Pisanos deposed that he had not been debriefed about the alleged confrontation between Sergeant Wyver and 'C' and had not had access to all of the documents about the matter. 58 Inspector Pisanos acknowledged that source 'A' was formally debriefed on 21 April and that the request for an extension the next day mentioned that the applicant was in the process of completing the Investigator's Final Report. Inspector Pisanos agreed that Operation Nothern, as far as S/C Fox was concerned, had been finalised at this point. However, whether 'A' was to the prosecuted was but one of the matters still to be finalised. He agreed the applicant's only involvement, at this time, was whether 'A' should be prosecuted. 59 In the May request for a further extension the applicant had said "a number of police officers named by 'A' are yet to be spoken to to confirm the unreliability of this registered source (A)". Sergeant Wyver was one of these officers. 60 After listening to the interview with 'A' Inspector Pisanos had agreed that consideration should be given to prosecuting her. He asked the applicant to prepare a matrix identifying discrepancies in her interview. Inspector Pisanos and the applicant had discussed the follow-up process after the applicant had spoken to Inspector Bob Martin about the matter. Preliminary legal advice had also been sought. Inspector Pisanos believed that the applicant had known the follow-up investigation and speaking to other officers would not take place until the Command had endorsed that strategy. Inspector Pisanos had told him so in April, May and beyond. Inspector Pisanos was asked why then had he not said on 12 July "why did you speak to Wyver when I've told you not to speak to anyone?" He explained that was not the nature of the relationship they had between each other. 61 Inspector Pisanos gave further details of his conversation with the applicant on 12 July. He and the applicant had not been in contact for some five or six weeks. The applicant had brought a present for his daughter and he had told him that he had heard good reports about him from the undercover course. 62 Inspector Pisanos said he had no complaints about the thoroughness of the applicant's investigation or his capacity and he had been a valuable member of the team. He regarded the applicant as a very generous person and he had no issues with him whatsoever. SUBMISSIONS For the applicant 63 Mr Nicholls submitted that this case involved two arguments of substantive unfairness which result in the order of Superintendent Baker against the applicant as being harsh, unjust and unreasonable. Firstly, it was put that the applicant was not guilty of the misconduct alleged against him. In this regard, Mr Nicholls relied on the precise terms of the order itself. 64 Mr Nicholls submitted that it was not disputed that the applicant had a conversation with Sergeant Wyver during the undercover course concerning 'A'. This person had provided information for an internal police complaint in respect to an investigation relating to allegations that a police officer at Warilla Police Station had been supplying drugs. The investigation was known as Operation Norwich, and later Operation Nothern. Mr Nicholls said this was a partial summary which did not include the reasons for the applicant's approach and the subsequent conversation. Sergeant Wyver had been an important witness in relation to whether 'A' had made false allegations. 65 Mr Nicholls said it was clear that despite the various versions of this conversation, Superintendent Baker had relied on the applicant's version as detailed in his 12 July report. Other versions of the conversation are therefore, irrelevant. 66 The second paragraph of the order stated "You asked Detective Sergeant Wyver if he had any knowledge about source 5505 and indicated that you wished to speak further to him about source 5505". Mr Nicholls said this allegation acknowledged that the applicant did not reveal 'A', but merely asked Sergeant Wyver if he knew her. Superintendent Baker had accepted that this inquiry was not seeking any information about the source. What followed was that the applicant had said "I can't talk about it now". This exchange could not possibly constitute misconduct of the kind contemplated by the order. Indeed, both the applicant and Sergeant Wyver had described the conversation as just general talk. Sergeant Wyver didn't think anything of it and expected to be a witness later on. The discussion raised no concerns for him or the applicant. Later the applicant was completely open and forthcoming with Inspector Pisanos. 67 Mr Nicholls noted that it was the applicant's evidence that although Sergeant Wyver had been a support person for S/C Fox, this issue was not in the forefront of his mind. His focus had been on 'A's interview of 21 April and her alleged dishonesty. 68 The third particular of the alleged misconduct stated that "You improperly released information to Detective Sergeant Wyver in relation to source 5505". However, Mr Nicholls put that Mr Baker in his evidence, quite properly conceded, that the question "Do you know 'A'?" did not identify 'A' as being 'C's source and did not identify 'A' as being a source at all. Nor did it reveal her as having any involvement in the Fox matter and did not identify 'C' as an internal police complainant. Moreover, there had been nothing put by the applicant which would have enabled Sergeant Wyver to make any connection to 'A'. This had been corroborated by Sergeant Wyver when he deposed that he did not know of any link between 'A' and the Fox matter until he was interviewed some two months later. 69 Sergeant Wyver had denied (and still does) making any approach to 'C' following his conversation with the applicant. Any knowledge Sergeant Wyver had of 'A' was only what he knew through 'C'. Having taken Mr Baker through various versions of the conversations, Mr Nicholls noted that Mr Baker had conceded that the applicant had not disclosed any confidential information. 70 A further allegation was that the applicant had not sought the consent of his team leader to disclose the information. Mr Nicholls pointed out that the allegations made by 'A' had by that time been finalised and, in any event, the applicant, on his first day back at work after the undercover course, openly and freely told Inspector Pisanos of the conversation and the possible need to talk further with Sergeant Wyver. While Inspector Pisanos had claimed he had told the applicant on numerous occasions during April and May not to speak to anyone, his evidence should not be preferred. The applicant's version of what occurred is corroborated by his extension requests. Further, it was Mr Baker's evidence that he had not been aware the Inspector had told the applicant not to speak to anyone. 71 The remaining particular in the order concerned an allegation of interference with an internal investigation; being the release of confidential information. Mr Nicholls submitted that there could be no basis for this allegation as the internal investigation was all but finalised by 21 April 2004. 72 Mr Nicholls added that 'C' had not been called to give evidence in the proceedings and there were some glaringly inconsistent versions of the complaint he had made against Sergeant Wyver. For these reasons, his record of interview should not be accepted. 73 Mr Nicholls submitted that the misconduct alleged against the applicant and, particularly as expressly stated in the order, had in no way been established to the requisite standard and on that basis alone the order should be revoked. 74 In the alternative, Mr Nicholls put that even if there was an element of misconduct, the action taken against the applicant in addition to the order itself, was too harsh. He had been immediately removed from investigative duties and given no meaningful work for some time. His reputation and standing with his colleagues had been affected. However, the quality of his character and his abilities were later shown to be exemplary when he was put in charge of the Macquarie Fields Riots Task Force and later transferred to Flemington where his work had been roundly praised. For an officer of 17 years' service whose health had been affected, this punishment far outweighed the gravity of the matter. Moreover, there was never any suggestion that the applicant had acted corruptly or maliciously. 75 Finally, Mr Nicholls referred to the mandatory requirements of the Act to consider the interests of the applicant and the public interest; see Van Huisstede v Commissioner of Police (2000) 98 IR 57. This decision was authority for the proposition that the public interest will not always operate against the interests of the applicant. Here the applicant's interests are his reputation in not having an adverse finding against him for conduct he did not commit and the public interest is served in the integrity of the Police Service not having an adverse finding against one of its officers where the misconduct cannot be established to the requisite standard. These are not competing interests. The order should therefore be revoked. For the Police Service 76 Mr Skinner firstly addressed the high public interest and sensitivity involved in the preservation of confidentiality in internal affairs investigations. In view of the seriousness of the matter, the action taken against the applicant was not as harsh as it might have been. Mr Skinner noted that section 173 of the Police Act applies whether or not a police officer has been prosecuted or convicted of an offence. There is a different standard of proof and a requirement for flexibility in the action taken under s173 of the Act. 77 Mr Skinner stressed that it was wrong to suggest that Superintendent Baker relied solely on the applicant's version of the conversation with Sergeant Wyver as recorded in his report on 12 July. There had been meetings of the Complaints Management Team, a complaint initiated by 'C' against Sergeant Wyver, a thorough investigation, including interviews with all the relevant persons and an Internal Review process. All of the senior officers reviewing the matter had come to the same view that there had been a gross error of judgement by the applicant. Thus, the entire investigative process had been fair and thorough and had even given some leeway to the applicant. There had been no attempt to set one officer against another. 78 Mr Skinner put that even on the most minimalist version of the incident, the applicant had spoken to another police officer and identified the full name of a person involved in a sensitive internal affairs investigation. This would be a sufficient basis to ground the sanction imposed on the applicant. Even if Sergeant Wyver had not made the connection between 'A' and 'C' it had at least the "huge" potential to seriously compromise the investigation involving S/C Fox. Moreover, the applicant had regretted what had occurred and agreed that it was possible Sergeant Wyver could have put "two and two together". 79 Mr Skinner put that it was not necessary and there were good forensic reasons for not calling 'C' to give evidence. Even so, there were various pieces of evidence which all corroborate 'C's claim of being confronted by Sergeant Wyver. Indeed, this confrontation would tend to confirm that Sergeant Wyver had "joined the dots". 80 As to Inspector Pisanos' evidence, Mr Skinner observed that it was not squarely put to him that he was untruthful. In any event, the Inspector's version of the conversation with the applicant was recorded within an hour of it occurring and recorded in his e-mail to Superintendent Fehon. It had been evident that Sergeant Wyver was more than just a support person for S/C Fox and this underlined the sensitivity of what had been disclosed. There had been no authorisation of the applicant to speak to anyone about the matter. Moreover, it was not just the applicant revealing a name, but 'A's reliability and 'C's assessment of her reliability were also discussed. Inspector Pisanos had acted completely appropriately by stopping the applicant from going any further. 81 As to whether Operation Nothern had concluded by early June 2004, Mr Skinner put that it was clear from Inspector Pisanos' evidence that approaching any further witnesses was an extremely sensitive matter which would require Command authorisation. The applicant should have, and would have known how sensitive the matter was. 82 Mr Skinner said that the breach of confidentiality was at a higher level than the applicant was prepared to admit. After a thorough, exhaustive and fair process, the applicant's career had not been destroyed; he was merely transferred and continues to perform valuable work. In reply 83 Mr Nicholls emphasised that the alleged misconduct by the applicant was clearly particularised in Mr Baker's order. Indeed, Mr Baker has made certain concessions favourable to the applicant. Any reference to matters outside of the conversation relied upon by Mr Baker cannot now be elevated and relied upon to justify the order. Mr Nicholls put that Inspector Pisanos' version of the conversation with the applicant was not the issue. It was the applicant's version of the conversation in his 12 July report which Mr Baker relied upon and which should be relied upon here. 84 Mr Nicholls again referred to Sergeant Wyver's record of interview in which he said he had not been provided with any confidential information by the applicant nor had the applicant disclosed any information about 'A' or 'C'. While it was accepted that Sergeant Wyver had described the conversation as "unusual" this was only after he had requested a second interview to clarify what he had meant. CONSIDERATION Relevant Provisions of the Police Act 1990 85 Section 173 of the Act identifies two forms of action the Commissioner of Police may take in respect to a police officer's misconduct - non-reviewable action and reviewable action. In this case there is no dispute that the applicant's transfer from Internal Affairs to Flemington LAC constituted a reviewable action for the purposes of s173 of the Act. 86 The applicant has invoked s174 of the Act by making an application "to the Industrial Relations Commission for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust". The applicant does not contend that the order was beyond power, but strongly maintains the order was harsh, unreasonable and unjust. 87 The Commission's powers to deal with the application are to be found at s175 of the Act as follows: Proceedings on a review (1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made. (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173). 88 Pursuant to s176 of the Act, the Commission undertook conciliation of the applicant's claim, but this was unsuccessful. In arbitrating the claim under s177 of the Act, the Commission is to determine the application in the following ways: (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application. In addition, if the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order. 89 It is to be noted that the Commission's procedures in these proceedings are similar to those found in the Industrial Relations Act 1996. For example, s178 is relevantly identical to s163 of the Industrial Relations Act and provides as follows: Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence, but may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to and in respect of the Commission in Court Session. 90 As far as my inquiries reveal there has only been two arbitrated decisions of the Commission under s177 of the Act - Laird v Commissioner of Police [2001] NSWIRComm 253 and Mahoney and Commissioner of Police [2003] NSWIRComm 67. However, there have been a number of arbitrated applications under s181D of the Act dealing with the summary removal of police officers in whom the Commissioner does not have confidence. 91 As will be seen from a comparison of the two divisions there is a certain synergy between them which make decisions under s181D of assistance to the Commission in applying the appropriate principles to decisions in s177 cases. I note particularly s181F of the Act provides as follows: Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from 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. (2) The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of NSW Police, and the fact that the Commissioner made the order pursuant to section 181D (1)). 92 It is to be observed that in respect to the public interest, Grayson DP, in Laird, adopted the conclusions of Walton VP in Van Huisstede v Commissioner of Police (2000) 98 IR 57 and said: 50 As to the public interest, it seems to me that the observations of Walton J , Vice President when dealing with the relevantly similar provisions of s181F(3) of the Act - that is to say, relevantly similar to s175(4), are apposite here and I would respectfully adopt them. 51 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, his Honour said this: 216. "The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interest 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." 93 As to the weight to be accorded to the public interest vis a vis the applicant's interests, I refer to a recent judgment of Walton J, Acting President and Staff J (Schmidt J dissenting) in Commissioner of Police v Evans [2006] NSWIRComm 170. At paras 4-5 the Full Bench said: 4] The essence of the appellant's submissions - reflected in her Honour's judgment - is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. 5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159 . Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests. 94 I would respectfully adopt the conclusions of the majority and apply the same principles to the consideration of the public interest and the applicant's interests in s174 reviews under the Act. 95 In Mahoney, I considered the meaning of the expression harsh, unreasonable or unjust in s175 (2) of the Act. At paras 118 to123 I said: 118] Section 175(2) of the Act places the onus on the applicant to establish that the Commissioner's order was either 'beyond power or is harsh, unreasonable or unjust.' The expression 'harsh, unreasonable or unjust' is also to be found at s181E of the Act; that section dealing with the Commission's power to review an order of the Commissioner of Police for the removal (dismissal) of a police officer. In my opinion, the expression 'harsh, unreasonable or unjust' can be defined in the same way where it appears in both sections of the Act, even though one section deals with disciplinary action and the other deals with dismissal. 119] Obviously the effect of whether an order is 'harsh, unreasonable or unjust' will likely be very different in circumstances of dismissal as distinct from disciplinary action. That merely demonstrates the point that the application of the principles of whether an order is 'harsh unreasonable or unjust' will very much depend on the facts and circumstances of a particular case. 120] There can be little doubt that the principles which have been established in unfair dismissal cases under Pt 6 ch 2 of the Industrial Relations Act , lay at the foundation of the tests to be applied under s181E and F of the Police Act . Indeed, there is particular reference to the unfair dismissal provisions of the Industrial Relations Act in s181G of the Police Act. As the Full Bench said in Newton v New South Wales Police Service : The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s84 apply to s181F review proceedings, subject to the there specified modifications. 121] The expression 'harsh, unreasonable and unjust' has been considered on numerous occasions in decisions of the Commission under Pt 6 ch 2 of the Industrial Relations Act , (See discussion in Jankowski v Excellent Management 2003 NSWIRComm 32 and Heape v General George Carpet 2002NSWIRComm 146, where I refer to the definition of 'harsh, unreasonable and unjust' citing Byrne & Anor v Australian Airlines (1995) 61 IR 32, Outboard World v Muir (1993) 51 IR 167 and Bankstown City Council v Paris (1999) 93 IR 209). 122] These same considerations, including those pertinent to issues of procedural fairness, have been applied in recent decisions of the Commission under the review provisions for dismissal under the Police Act (See Wells v Commissioner of Police (2000) 100 IR 106, Van Huisstede v Commissioner of Police (2000) 98 IR 57, Starr v Commissioner of Police [2001] NSWIRComm 226 and Cassel v Commissioner of Police 2003 IRComm 73). I note that these matters were extensively canvassed at Full Bench level in Newton v NSW Police Service. 123] Grayson DP considered the definition of 'harsh, unreasonable or unjust' in Laird v Commissioner of Police . His Honour said at paras 46 and 47. Further yet, the sanction if imposed would be harsh in its consequences for the personal and economic situation of the applicant or because it is disproportionate to the gravity of the misconduct (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 which was applied by Peterson J in Wells v Commissioner of Police (2000) 100 IR 106. Conclusions 96 Counsel for the applicant invited the Commission to revoke Superintendent Baker's s173 order against the applicant on two alternative bases. A finding on either basis would ultimately result in the order being found to be harsh, unjust and unreasonable. Firstly, it was said that the applicant did not commit the misconduct which was alleged against him and, consequently no order grounded on unproven misconduct could be valid. Secondly, even if there had been an element of misconduct, the penalty of transfer from Internal Affairs and the effect of other actions by the Police Service against the applicant, was a grossly disproportionate response to what was no more than an error of judgement. 97 In my view, there are compelling reasons, arising from the evidence both before the original decision makers and during these proceedings, which support both these propositions. I shall deal firstly with whether the applicant was guilty of the misconduct alleged against him. In this regard, Mr Baker's frank evidence in this regard is most significant. He conceded that the only confidential information released by the applicant to Sergeant Wyver was the source 'A's name. This was undoubtedly correct as the applicant's and Sergeant Wyver's own versions of the conversation make clear. 98 Putting aside whether Sergeant Wyver may have "put two and two together" the applicant, in my opinion, took the matter no further than asking "Do you know 'A'?" and, having received an affirmative response, indicated he might need to speak further to Sergeant Wyver about the matter. In other words, as Mr Baker properly conceded and on a correct interpretation of the conversation, the applicant did not disclose whether 'A' was a source or was connected with the Fox matter. Nor did he disclose the nature of any investigation he (the applicant) was involved in or who was involved. It was of course Sergeant Wyver who volunteered the connection between 'A' and 'C' based on his own knowledge of their relationship. 99 I am mindful that it was Sergeant Wyver's evidence that until his own record of interview on 18 August 2004, he had no knowledge of any connection between the Fox matter and 'A' or 'C' and nothing had been said by the applicant which had led him to believe that 'A' had been involved in the investigation of the Fox matter. Inspector Rainie had seemingly accepted Sergeant Wyver's explanation on this point. I also accept this evidence. 100 Viewed from this perspective, I cannot be convinced that the applicant was guilty of releasing confidential information to Sergeant Wyver. Thus if the applicant was not guilty of the alleged misconduct, the s173 order based upon such a finding, cannot stand. 101 One further aspect of the allegations against the applicant needs exploration. Much was made of whether the Operation Nothern referred to in the order had been completed by the date of the conversation - around 2 June 2004. It would follow, of course, that if this was the case, the applicant could hardly be charged with compromising an investigation that had already been completed. Some emphasis was placed on four extension reports over a number of months (April to July) as indicative of the fact that the investigation was incomplete and ongoing. However, as these reports make abundantly clear and supported by the evidence in these proceedings (including that of Inspector Pisanos), Operation Nothern was all but concluded and the Investigator's Final Report was being prepared. Further, as the reports also make plain, the extensions were sought primarily to establish whether source 'A' could, or should be prosecuted for bringing false complaints and this would involve talking to other persons. While this line of inquiry arose directly from Operation Nothern, it was not the subject matter of the Operation, nor did it impact on the conclusions which had already been reached in respect to the allegations made against S/C Fox. 102 Seen in this light, I am strongly of view that at the time of the conversation with Sergeant Wyver, the applicant could not have compromised, or potentially compromised Operation Nothern and this allegation of misconduct must also fail. 103 It was put against the applicant that there were six versions of the conversation between him and Sergeant Wyver and this must raise doubts as to the applicant's report to Mr Baker of 12 July. I do not agree. A close examination of the differences between the applicant's, Sergeant Wyver's and Inspector Pisanos' versions of the incident do not demonstrate any material departure from the substance, form and intent of the conversation between Sergeant Wyver and the applicant. As mentioned earlier, these variations demonstrate that the only crucial question asked of Sergeant Wyver was "Do you know 'A'?". 104 I again have regard to the evidence of Sergeant Wyver, a police officer of 26 years' experience, primarily in criminal investigation. He deposed that while he was pressed to conclude the applicant's approach was "unusual", it was not uncommon for detectives to discuss such matters and for statements to be taken later. Seen in this way, Sergeant Wyver had concluded that there was no reason to report the conversation to senior officers. Moreover, there was no suggestion that the applicant himself was less than frank and open with Inspector Pisanos when he raised the matter on his first day back at work. I am able to comfortably conclude that there was no malice, malintent or concealment be either the applicant or Sergeant Wyver as they both genuinely believed there was nothing untoward about their conversation. 105 Before leaving the evidence of Sergeant Wyver, criticism of him was focused on an allegation that on 11 June 2004 he had confronted 'C' in the Warilla Police Station because of what the applicant had told him a week or so before. Despite the allegation being accepted by the Service and Sergeant Wyver being disciplined for it, Sergeant Wyver consistently denied the allegation. I would observe that no witness including, and most particularly 'C', was called to attest to this conversation. Sergeant Wyver is not an applicant in these proceedings and I do not find it necessary to make findings as to whether or not this conversation occurred. Obviously, the allegation against Sergeant Wyver has nothing to do with allegations made against the applicant. It is therefore irrelevant to any determination about the applicant's conduct. 106 It follows, from the foregoing, that I cannot be satisfied that the allegations of misconduct against the applicant, as expressly detailed in the order, have been made out to the requisite standard and the order should be revoked on the grounds that it is harsh, unreasonable and unjust. 107 In the event that I am wrong about this finding, I would have no hesitation, in the exercise of my discretion to revoke the s173 order as being disproportionate to the conduct of the applicant and therefore too harsh a penalty. In accordance with my statutory duty, I have balanced the competing interests of both the applicant and the Police Service. In this case these interests are not mutually exclusive. In accordance with the authority already cited, I give no primacy to one set of interests over the other. In my opinion, the public interest in this case does not operate against the interests of the applicant which might be broadly stated as: a) his concern that his reputation and standing with his colleagues and superiors is restored; b) a recognition of his 17 years of dedicated and exemplary service; c) ensuring this incident does not directly or indirectly affect his career opportunities or future promotion. 108 In my view, the public interest will be served by: a) the utilisation of the applicant's undoubted skills, experience and expertise within Internal Affairs; b) retaining a skilled and dedicated officer who, even since the 2004 incident, has been highly spoken of by his superiors. In this regard I was most impressed by the character references of Rebecca Franks, Crime Manager of Flemington LAC and Detective Chief Inspector Matthew Appleton from Macquarie Fields Police Station. 109 In balancing these considerations I have also had regard for the following matters: 1) Notwithstanding the considerable stress and pressure of what had occurred, the applicant was subsequently placed in charge of important investigations involving a number of officers under his command and for which he was highly praised; 2) Inspector Pisanos' evidence was that he had no complaints with the applicant's thoroughness or capacity as an investigator and he had been a valuable member of the team. 3) The applicant was initially taken off investigative duties and it was not contested that for some time he was given little or no meaningful work to do. This was, to my mind, punishment enough. 110 For all the aforementioned reasons, I am satisfied that the applicant has discharged the onus under s175(2) of the Act of proving the order was harsh, unreasonable and unjust and this is a case which warrants the intervention of the Commission. I propose the following determination: 1. Pursuant to s177(1)(a) of the Police Act 1990, the Industrial Relations Commission of New South Wales hereby revokes the s173 order of then Superintendent Baker issued to Detective Fred Saliba on 18 July 2004. 2. Detective Saliba shall be transferred to the Investigations Unit within the Professional Standards Command within 28 days of today or such other date as may be mutually agreed by the parties. 3. Matter IRC 3814 of 2005 is determined and concluded accordingly. Peter J Sams, AM Deputy President 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.