Industrial Relations Commission of New South Wales CITATION: Becke and Commissioner of Police (No 4) [2010] NSWIRComm 74 PARTIES: Samuel James Alan Becke (Applicant) Commissioner of Police (Respondent) FILE NUMBER(S): IRC 567 of 2009 CORAM: Staff J CATCHWORDS: Removal of police officer - review of order - whether removal harsh unreasonable or unjust - onus and standard of proof in review proceedings - allegation of misconduct and criminal offences - criminal charges withdrawn - Commissioner alleged applicant misconducted himself by engaging in inappropriate conduct of a sexual nature towards a female whilst on duty - misuse of official New South Wales resource by transporting a civilian in police vehicle - leaving Local Area Command without informing dispatcher - failing to record transporting a civilian on vehicle tasking sheet - inconsistencies in evidence of applicant - inconsistencies between evidence of applicant and complainant - evidence of contemporaneous complaint - credibility of applicant - evidence of complainant preferred - applicant guilty of misconduct - removal not harsh unreasonable or unjust - application dismissed - suppression order made re non-publication of name of complainant and her husband or any material capable of identifying them LEGISLATION CITED: Crimes Act 1900 Police Act 1990 Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 Commissioner of Police v Dobbie (2006) 157 IR 44 Commissioner of Police v Sewell (2008) 180 IR 91 Flanagan v Commissioner of Police (2008) 180 IR 85 CASES CITED: Hosemans v Commissioner of Police (2004) 138 IR 159 Miller v NSW Commissioner of Police [2002] NSWIRComm 296 R v H (1997) 92 ACrimR 168 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police (2009) 181 IR 420 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 HEARING DATES: 30 November 2009, 1 December 2009, 2 December 2009, 3 December 2009, 4 December 2009, 14 April 2010, 3 May 2010 DATE OF JUDGMENT: 10 June 2010 Mr D Nagle of counsel (Applicant) Walter Madden Jenkins solicitors LEGAL REPRESENTATIVES: Mr P Skinner of counsel (Respondent) Commissioner of Police JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: STAFF J Thursday 10 June 2010 Matter No IRC 567 of 2009 SAMUEL JAMES ALAN BECKE AND COMMISSIONER OF POLICE Application by Samuel James Alan Becke for review of an order under s 181E of the Police Act 1990 Suppression order made that there be no publication of the names of the complainant or her husband or any material capable of identifying them DECISION [2010] NSWIRComm 74 1 Mr Samuel James Alan Becke ("the applicant") served in the NSW Police Force from December 2003, until he was removed by order of the Commissioner of Police ("the respondent") on Thursday 9 April 2009. 2 Applying the provisions of s 181E of the Police Act 1990 ("the Police Act"), the applicant seeks an order reinstating him to the NSW Police Force and affording him wages lost over the period since his removal. 3 The applicant had reached the rank of Detective Constable. The respondent cited four reasons for the loss of confidence in the applicant, being that: (i) the applicant misconducted himself by engaging in inappropriate conduct of a sexual nature, whilst on duty, towards a female who has been referred to during the course of the proceedings and will be referred to in this decision as Ms H; (ii) the applicant misused official NSW Police Force resources by transporting a civilian in a police vehicle other than in the course of duty; (iii) the applicant left the Local Area Command without first informing the dispatcher at police radio VKG; (iv) the applicant failed to record that he transported a civilian on the vehicle tasking sheet. 4 In summary, the applicant denies that he assaulted Ms H and says that he was involved in a consensual practical joke which was being played on his co-officer that night, Constable Adam Currell. The applicant submits that the transporting of Ms H should not be regarded as misconduct. The applicant admits the third and fourth allegations. 5 The respondent is empowered by s 181D(1) of the Police Act to remove a police officer from the NSW Police Force. Section 181D(1) provides: The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. 6 The nature of the process and review provided by Div 1C of the Police Act of a decision of the Commissioner of Police by this Commission is now well settled: see Hosemans v Commissioner of Police (2004) 138 IR 159; Commissioner of Police v Dobbie (2006) 157 IR 44; Flanagan v Commissioner of Police (2008) 180 IR 85 at [21] - [22]; Commissioner of Police v Sewell (2008) 180 IR 91; Toshack v Commissioner of Police (2009) 181 IR 420; Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2. In the matter of Hosemans v Commissioner of Police (at [134]), the Full Bench stated that in undertaking a review the correct approach 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." 7 Section 181F(1) requires me to consider three matters. It provides: In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (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. 8 Section 181F(2) provides: The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 9 Section 181F(3) provides: Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 10 Mr D Nagle of counsel appeared for the applicant and Mr P Skinner of counsel appeared for the respondent in the review proceedings. Reasons for removal pursuant to s 181D(1) 11 The applicant's dismissal was initiated in accordance with the statutory scheme, by a Notice served on him by the respondent pursuant to s 181D(3)(a) of the Police Act ("the Notice"). Subsequently, on 9 April 2009, the respondent made an order under s 181D(1) of the Act. The reasons for this order were in the following terms: I am required to make a determination under section 181D(1) of the Police Act 1990, in respect of whether I have confidence in you as a member of the New South Wales Police Force. In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990, together with the evidence contained in the supporting documentation, which were served on you on 4 August 2008. The grounds set out in my Notice to you refer to your conduct. I have also taken into account your written submission in response to the grounds set out in my Notice which was provided to me by your legal representative. I have given careful consideration to all the material that has been presented to me in this matter, and I provide the following reasons for my determination: In the early hours of 1 January 2008, you were on duty and driving police vehicle QH15. You were accompanied by Constable Adam Currell. [Ms H] was at the Mean Fiddler Hotel in Rouse Hill. She says that she left the hotel to find a taxi. After waiting for some time, she says that she telephoned off-duty Constable Chris Smith. Constable Currell says that he knows [Ms H]. He says that he received a call from Constable Smith, and then telephoned [Ms H]. You and Constable Currell then drove to pick up [Ms H] at the Shell Service Station on Windsor Road, Rouse Hill in order to give her a lift in the police vehicle to a house in Woodcroft. Neither the service station nor Woodcroft are in the Quakers Hill LAC. Constable Currell says that neither you nor he notified the mobile supervisor or VKG that you were leaving the Quakers Hill LAC. [Ms H] says that, while at the service station, you got out of the vehicle and asked her, " how smashed are you? " She says that she replied, " I'm not ". She says she then got in the rear passenger seat of the vehicle. You then drove, with Constable Currell in the front passenger seat. [Ms H] says she gave you directions to her friends' residence in Woodcroft. She states that at one point in the journey she directed you to turn left at a roundabout. However, she says that you said words to the effect of " I know of a park or a dead end around here ." She says that you ignored her direction to turn left. [Ms H] says that you then drove to the end of Woodcroft Drive, which is surrounded by trees. She states that you pulled over, got out of the vehicle and opened her door. She states that she said words to the effect of " Are you serious, is he serious? " before saying directly to you, " You cannot be serious? " She states that you replied in words to the effect of " Yer, I am " before grabbing her by the right wrist and pulling her out of the car. [Ms H] says that you pulled her behind you and walked approximately 20-30 metres from the vehicle and into the bush. [Ms H] says she said words to the effect of " You don't understand, I am married, I am not one of those girls, I don't do this, it's not me.. . I'm not like this, I don't think you understand, I'm married ." She says that, once in the bushes, she saw a mattress on the ground. She says that she said words to the effect of " please don't tell me this was planned ", to which you laughed and said that the mattress was not yours. She says that you asked her to sit down, however she declined. [Ms H] states that you then put your hands on her shoulders and pulled down the straps of her dress and bra, exposing her breasts. She says that the dress was tight and it took some force. She says that you then tried to touch her breasts, and may have done so, as she fumbled to pull the straps back up. [Ms H] says that you rubbed her crotch through her dress, and asked if she was on the pill. She says that she replied " no" and pushed your hand away. [Ms H] says that you then pointed to your crotch and held your exposed penis through the open zipper of your trousers. She states that you said words to the effect of " would you suck? " or " do you suck? " [Ms H] says that she said " no ", before turning to walk back towards the vehicle. She says she then saw Constable Currell walking towards the bush. She states that you said, " Is that [Constable Currell]? ", to which she replied " Yes ". She says that you quickly did up your fly and said words to the effect of, " Don't say anything. Make out the joke is on [Constable Currell ]." Constable Currell says that, on the night in question you drove vehicle QH15 to a secluded part of Woodcroft Drive and stopped. He says that you got out off the vehicle and opened [Ms H]'s door. He says that [Ms H] got out and that you and she walked " off into the bush ." Constable Currell says he remained in the vehicle at first. He says he initially thought you and [Ms H] were playing a joke on him. However, he says he shortly began to think that it was getting " a bit long to be a joke ". He says that he thought that you and [Ms H]were about have some form of sexual encounter and that he knew that such conduct was wrong, given that you and he were on duty. Constable Currell says that he then got out of the vehicle and started walking towards the bush. He says that he then saw you and [Ms H], and that you all returned to the vehicle and drove in silence to the house of [Ms H]'s friend in Woodcroft. [Ms H] was staying with Melissa Williams and her husband, Dominic Shipley, on the night of 31 December 2007. They state that the following morning [Ms H] told them that she had been " pulled " out of a vehicle and " dragged " into the bush by a police officer named " Sam ". She told them that " Sam " forced down the top of her dress, exposed his penis and wanted her to give him a " blowjob ". A friend of [Ms H], Paulina Poniewierski, who was also staying at the same house, states that [Ms H] woke her when she ([Ms H]) got home and informed her of the alleged incident. She stated that [Ms H] appeared to be in shock. She says that [Ms H] told her that she was picked up from a service station and that " when we got to Woodcroft instead of turning into this street the driver took me [...] a dead end ". She says that [Ms H] told her that the driver " pulled[her] into the bushes and put the hard word on me ". She says that [Ms H] later told her, " when we were in the bushes he tried to take my dress off and he had his penis out .'' [Ms H]'s husband states that the next morning [Ms H] told him that she got a lift with Police officers and that " on the way... they turned around and drove up to a dead end ". He says that she told him that one officers " grabbed " her by the arm and led her " into the bushes " where he " tried to undress " her and " asked [her] to perform a sexual act on him ". Constable Smith states that [Ms H] told him that she gave the officers who gave her a lift " clear directions " to her friend's house, but that an officer named " Sam " took her to a park and tried to have sex with her. I note that a mattress was subsequently been found by investigating officers in the location described by [Ms H]. I note that Constable Currell has stated that no record was made to indicate that [Ms H] was conveyed in Police vehicle QH15 on 1 January 2008 in either the motor vehicle diary or on the Tasking Sheet. I also note that in your duty book DO67309 you have written and appear that have signed the following comment: "Duties commenced at QHPS performing General Duties with CST CURRELL on QH15. Duties conducted as per tasking sheet. FINISH: 0630 <signature>" However, the tasking sheet makes no mention of transporting [Ms H] on either 31 December 2007 or 1 January 2008. On 8 January 2008 you attended Castle Hill Police Station. You declined to be electronically interviewed. On 2 April 2008 you were charged with one count of detaining for advantage under subsection 86(1) of the Crimes Act 1990, two counts of indecent assault under subsection 86(1) of the Crimes Act 1990. one count of committing an act of indecency under subsection 61N(2) of the Crimes Act 1990. I note that you pleaded not guilty to those alleged offences and on the 13 February 2009 these charges were withdrawn by the DPP. Issue 1 Regardless of the outcome of the criminal proceedings, I have determined that you misconducted yourself by engaging in inappropriate conduct of a sexual nature towards [Ms H]. I note that in your response to my Notice you reject the account given by [Ms H] and state that you did not misconduct yourself. There appears to be no dispute that you took a young female to an isolated location in a police vehicle whilst on duty. You took this young female to a location where there was a mattress in the bush. These facts do not rely solely on the version provided by [Ms H]. You have not only misconducted yourself while performing your duties by agreeing to convey [Ms H] home, you have misconducted yourself by further deviating from your duties when, as you state, " decided at this point it would be funny to play a joke on Constable Currell ". In your response you provide a version of the conversation that you had with [Ms H] when she was in the police vehicle. I find your own version of this conversation sexually suggestive and highly inappropriate. In taking part in a conversation of this nature with a member of the public you did not display the highest professional standards I expect from an officer. The " joke " on Constable Currell, as you state in your response, is unethical and inappropriate conduct particularly with a person who you believed was under the influence of alcohol. Your actions would not promote public confidence in the NSW Police Force. At the very least, I consider that you misconducted yourself by engaging in conduct of a sexual nature with a civilian while on duty (regardless of [Ms H]'s state of mind in relation to that conduct). However, I am inclined to prefer [Ms H]'s version over your own and I therefore consider that you have breached the NSW Police Force Code of Conduct and Ethics, which relevantly states: 1. An employee of NSW Police must behave honestly and in a way that upholds the values and the good reputation of NSW Police whether on or off duty. Whether on or off duty your conduct will reflect on NSW Police. All employees must protect the reputation of NSW Police through appropriate behaviour. You must always act lawfully and never in a way that brings, or is likely to bring discredit to NSW Police. You must act honestly, truthfully and with integrity in all of your dealings with other employees and the public. 2. An employee of NSW Police must act with care and diligence when on duty. As an employee of NSW Police you must carry out your work professionally. This means paying all due care, attention and diligence to your duties, fulfilling them to the best of your ability and supporting other employees to do the same. ... 3. An employee of NSW Police must treat everyone with respect courtesy and fairness. I also consider that there are grounds on which it could be concluded that your conduct was contrary to the Gender Based and Sexual Harassment Policy which states: Someone sexually harasses another if: they make an unwelcome sexual advance or unwelcome sexual request for sexual favours, they engage in other unwelcome conduct of a sexual nature, when a reasonable person, having regard to all the circumstances, would have anticipated the person harassed would be offended, humiliated or intimidated. Conduct of a sexual nature includes making a statement (orally or in writing) of a sexual nature to someone or in their presence. Behaviour is unwelcome if the individual alleging sexual harassment perceives it to be. It is irrelevant that the behaviour does not offend others or has been an accepted feature of the work environment in the past. Issue 2 I have determined that you misused official NSW Police Force resources by transporting a civilian in a police vehicle other than in the course of your duties. I note in your response to my Notice that you deny that you misused an official NSW Police Force resource. You state you were concerned for [Ms H]'s welfare. If this were the case and you had legitimate reasons for conveying [Ms H] home, I believe you would have recorded your actions in the vehicle diary and your duty book. As a result, I consider that you breached the NSW Police Force Code of Conduct and Ethics, which relevantly states: 9. An employee of NSW Police must not make improper use of their position or NSW Police information or resources. Employees of NSW Police hold positions of authority and have access to a range of resources... Use of any of these must only be for lawful purposes and in the course of your duties. You must not improperly use your position, or access NSW Police resources or information, for personal gain or the gain or any other person... Sworn employees in particular are reminded of the image they portray when representing NSW Police. Issue 3 I have determined that you left the Quakers Hill LAC without informing VKG or your supervisor. I note that in your response to my Notice you agree with this issue. As a result, I consider that you have breached the NSW Police Force Handbook in relation to "Police Vehicles", which relevantly states: " Notify the radio operator when leaving your local area ." I also consider that you have breached the NSW Police Force Handbook in relation to "Communications", which relevantly states: Inform the VKG dispatcher when: Going off at your location and the reason why Calling back from your location ... Anything serious, unusual or newsworthy occurs I further consider that you have breached the NSW Police Force Code of Conduct and Ethics, which relevantly states: 3. An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties. Issue 4 I have determined that you failed to record conveying a civilian in a police vehicle in either the relevant motor vehicle diary or on the Tasking Sheet. I note that in your response to my Notice you agree with this issue. As a result, I consider that you breached the NSW Police Force Handbook in relation to "Police Vehicles -Vehicle Diaries", which relevantly states: Maintenance of diaries Officer in charge of vehicle Make all entries legibly in pen. Record the: ...driver and passengers I also consider that you breached the NSW Police Force Motor Vehicle Diary directions, which relevantly state: To be noted by all NSW Police Force personnel Recording of persons carried in Police vehicles The names of all persons, Police and Non-Police, carried in a Police Vehicle are to be recorded in the Motor Vehicle Diary. I further consider that you breached the NSW Police Force Code of Conduct and Ethics, which relevantly states: 1. An employee of NSW Police must act with care and diligence when on duty. As an employee of NSW Police you must carry out your work professionally. This means paying all due care, attention and diligence to your duties. ... 3. An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties. Consideration I am extremely concerned by your conduct in Issue 1. It is utterly unacceptable for an officer of the NSW Police Force to engage in conduct of a sexual nature while on duty, or to make sexual advances towards a member of the public. Such behaviour clearly brought significant disrepute to the NSW Police Force. You engaged in conduct that [Ms H] found unwelcome and this alone warrants your removal from the NSW Police Force. I do not accept your explanation that the incident was a practical joke played on Constable Currell and that [Ms H] was a willing participant in that joke. You were not dedicated to your duties on this evening and you were not acting with pride and admiration for the policing profession. Furthermore, I have accepted [Ms H]'s version, and it is clear that she was not consenting to your conduct, and found it unwelcome. I have also accepted that a reasonable person would have anticipated that [Ms H] would likely to be offended, humiliated or intimidated. In relation to Issues 2 to 4, I have also taken into consideration that, at the time of the misconduct, you were the senior officer present. I therefore consider that you were in a special position of authority and responsibility. As the senior officer present you are required to have an understanding of operational procedures and a capacity to maintain positive and professional relationships with the community. You have not performed your duties to the highest possible standard that meets the expectations of your position. While performing your duties you did not inform VKG of your whereabouts so failed to provide immediate response should it be required by other police or the community for an urgent crime. You have misused a police vehicle and failed to record your activities as required. In all the circumstances, I consider that your conduct has fallen well below the standards and expectations of both the community and the NSW Police Force. I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers will act: professionally at all times; with ethics and integrity; and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. 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 Force. I therefore remove you from your position as a police officer. Applicant's response to the Notice 12 As noted by the respondent, the applicant was charged with two counts of indecent assault and one count of committing an act of indecency under the Crimes Act 1900. The applicant pleaded not guilty to these charges. On 4 September 2008, the applicant forwarded a response to the Notice. In light of the criminal charges, the applicant observed that he was in a difficult position because if he set out in detail his version of events in relation to the matters the subject of the Notice and the criminal charges, he would be abrogating his right to silence. Acting on the advice of his lawyers, he declined to detail his version of events. 13 The response of 4 September 2008 detailed the applicant's life history before he joined the NSW Police Force, his history in the NSW Police Force, which was not put in issue in the proceedings, and his activities as a police officer, which resulted in approximately seven good work or complimentary reports regarding his work ethic and performance. The applicant attached 12 character references from senior officers with whom he had worked. Each attested to his character, his application to duty, and his career achievements. The referees found it difficult to accept the allegations made against him. 14 The applicant concluded his response by submitting that in the interests of fairness, the respondent should wait until he had given his evidence in Court and his criminal matters determined, before making a decision in respect of the Notice. Furthermore, the applicant asked that the respondent take into account that Ms H had by both statement and Electronically Recorded Interview of a Suspected Person ("ERISP"), withdrawn her complaint. 15 On 20 March 2009 the applicant provided a detailed response to the respondent denying he had behaved inappropriately towards Ms H. 16 The respondent proceeded to determine the matter and on 9 April 2009 made an order under s 181D(1) of the Police Act removing the applicant from the NSW Police Force. 17 The facts and circumstances eluded to above, require a detailed elaboration and a determination of the factual issues in dispute. The evidence 18 Apart from the applicant's evidence given before me, I have had the benefit of viewing a digital video recording ("the video") of the layout of the bush reserve where the applicant and Constable Currell took Ms H. This video was recorded by the investigating officers with the involvement of Ms H. As Ms H was not cross-examined in respect of the evidence contained in the video, I do not propose to take such evidence into account in terms of the truth of the statements made by Ms H during the re-enactment. The only weight that I accord to this video is its assistance in understanding the geography of the bush reserve and its layout. 19 I have also had the opportunity of reviewing the evidence of Constable Currell, who was rostered on duty with the applicant at the time of the incident. In addition, contained within the Commissioner's Confidence Submission before me were copies of the following: 1. Investigator's report. 2. Statement of Ms H dated 1 January 2008. 3. Statement of Constable Currell dated 5 January 2008 attaching transcript of interview with Constable Currell on 5 January 2008. 4. Transcript of directed interview with Constable Currell on 10 March 2008. 5. Police statement of Detective Senior Constable Kelly dated 14 January 2008. 6. Witness statement of Mr H dated 11 January 2008. 7. Witness statement of Ms Paulina Poniewierski dated 6 January 2008. 8. Witness statement of Mr Andrew Wallace dated 5 January 2008. 9. Witness statement of Mr Christopher Smith dated 5 January 2008. 10. Witness statement of Ms Melanie Williams dated 5 January 2008. 11. Witness statement of Mr Dominic Shipley dated 5 January 2008. 12. Police statement of Senior Constable Peter Nassar dated 2 January 2008. 13. Extract from motor vehicle diary, duty book and tasking sheets. 20 Each of the abovenamed witnesses gave evidence during the proceedings and were cross-examined, with the exception of Mr Wallace and Mr H, who were not required for cross-examination. 21 It is therefore necessary to make certain factual findings in order to properly undertake the review. The principle in respect of the requisite onus and standard of proof that should be applied in matters such as this is well established. In Starr v Commissioner of Police [2001] NSWIRComm 226, Walton J Vice-President at [158] referred to the following passage from the judgment of the Full Bench in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. Having regard to the above his Honour stated at [159] of Starr : Thus, the relevant standard to be satisfied in relation to allegations of misconduct against employees is on the balance of probabilities. However, that standard must be satisfied to a degree which is appropriate to the gravity of the facts to be proved. Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that a finding which may put a career in jeopardy must be made with regard to such considerations of the gravity of the facts in issue. The most often cited case for such a proposition is Briginshaw v Briginshaw , which was again confirmed recently by this Commission in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1. In that case, the Full Bench of the Commission noted that the principle in Briginshaw v Briginshaw is now embodied in s140 of the Evidence Act 1995, which provides: 140. Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 22 The relevant facts and circumstances giving rise to the Notice commence at about 4.50 am on 1 January 2008, when the applicant and his co-worker, Constable Currell, who were both rostered on a night shift, received a call from Constable Christopher Smith, who was off duty, requesting that they give Ms H a lift home because she could not obtain a taxi. The circumstances that led to Ms H being driven to deserted bushland became a critical factual issue in the hearing before me. I will return to this critical factual issue in further detail in due course. 23 The applicant's evidence was that at approximately 4.50 am on 1 January 2008, Constable Currell informed him that Ms H required a lift home from the Shell Service Station in Rouse Hill ("the Service Station"). Constable Currell said Ms H had been drinking at the Mean Fiddler Hotel and that she was intoxicated, lost, and had no means of getting home. Ms H's evidence was that she had seen Constable Smith at the Mean Fiddler Hotel during the night and he had told her to ring him if she needed a lift home. Ms H had called Constable Smith at approximately 4.50 am on 1 January 2008 to ask for a lift home, but he had already been at his house for some time. Constable Smith told her he would arrange for her to get a lift home with Constable Currell, whom he knew was on duty. 24 The applicant stated he knew of Ms H and he "had met her briefly through her employment at the Quakers Inn Hotel." He understood her to be a close friend of both Constable Currell and Constable Smith. Ms H's evidence was that she knew Constable Currell as being a police officer attached to Quakers Hill but did not know him well enough to have his mobile phone number. Mr Andrew Wallace had sent her Constable Currell's mobile phone number via SMS earlier in the evening of 31 December 2007. Ms H had not been formally introduced to the applicant prior to the morning of 1 January 2008. 25 As there had been no jobs broadcast over the police radio and as he and Constable Currell were in the vicinity of the Service Station, they decided to pick up Ms H to ensure she arrived home safely. The applicant said he was aware that the area in the vicinity of the Mean Fiddler Hotel was isolated, not well lit and he recognised how difficult it may have been to obtain transport, particularly in the early hours of New Years Day. 26 The applicant and Constable Currell collected Ms H from the Service Station at 5.00 am. Mr Skinner tendered the video and still photographs of the footage from the Service Station obtained by Detective Senior Constable Peter Nassar during his investigation. The footage and still photographs show the police vehicle arriving at the Service Station at 4.59 am. The last image of the vehicle at the Service Station is recorded at 5.01 am. When the applicant and Constable Currell first arrived at the Service Station they were unable to locate Ms H. The applicant's evidence was that Constable Currell rang Ms H on her mobile phone and she directed the applicant to drive to the car park beside the Service Station. Ms H then walked out from behind a real estate agency at the Rouse Hill shops. The applicant and Constable Currell exited the police vehicle and had a short conversation with Ms H about her night. The applicant could not recall exactly what was said. Constable Currell then cleared some equipment from the back seat of the police vehicle behind the driver's seat and Ms H entered the vehicle. The applicant stated that it seemed appropriate at the time to allow Ms H to sit in the backseat due to her apparent friendship with Constable Currell. 27 Ms H's evidence was that before she entered the police vehicle, the applicant asked her "how smashed are you?" She answered "No I'm not." The applicant denied asking her this question. They entered the vehicle and proceeded to drive along Windsor Road in a south-easterly direction. 28 During the journey the three of them talked. Constable Currell mentioned that he lived around the corner from where they had collected Ms H. He said that she could have stayed at his residence. Ms H said she knew a male friend who lived near where Constable Currell lived. 29 Constable Currell asked Ms H where her husband was that evening. Ms H said that her husband was in the Army and had been rostered to work both on Christmas Day and New Years Eve. Ms H's evidence was that the applicant then made a comment to her about liking men in uniform. She replied with the clichéd phrase "every woman likes a man in uniform", which she thought was appropriate as she was in the company of two police officers, one being someone she knew. As the conversation continued, Ms H's evidence was that the applicant said to her "is it a case of when the cat's away the mice will play?" Ms H said that she replied "Adam knows I'm not like that." In cross-examination, the applicant denied making this comment, saying that Constable Currell said those words. Constable Currell said that he could not remember any of the conversation that took place in the vehicle except that he said the phrase, "while the cat's away, the mice will play." Constable Currell said it was a phrase he often used. Ms H's evidence was that the phrase "while the cat's away the mice will play" was said by the applicant, not Constable Currell. She recalled saying "Adam [Currell] knows I'm not like that." 30 The applicant's evidence was that the conversation then turned to a male friend that she knew who lived near Constable Currell and that she had been with him when she left the Mean Fiddler Hotel. The applicant stated that Ms H said words to the effect, "All I can say is that a girl has her needs." The applicant said that they all laughed and that he took her comment to mean that Ms H had a personal relationship with the male without her husband's knowledge. The applicant said that either himself or Constable Currell asked Ms H if she had cheated on her husband with the male, to which Ms H replied "No". The applicant said that as she answered, he looked into the rear vision mirror and saw her gesture by putting her right index finger to her mouth. The applicant then said "What! Don't you want Adam to know that you cheated on your husband?" According to the applicant, Ms H laughed and said in a sarcastic tone "No, I'm not like that, am I Adam?" to which Constable Currell replied "No" in a sarcastic tone, according to the applicant. The applicant said "Oh I see, so if Adam knew you cheated on your husband, he might tell one of your friends and they might tell your husband." The applicant stated that at this point all three of them laughed. The applicant stated that the conversation continued with cheerful banter as they drove along Woodcroft Drive, Woodcroft. 31 Ms H's evidence was that there was never any conversation about cheating on her husband. Mr Skinner submitted that Ms H sounded incredulous during cross-examination when this conversation was put to her. 32 Ms H gave the applicant directions to where she was staying and said "Just take the next right and then left." The applicant's evidence was that he decided at that point that it would be funny to play a practical joke on Constable Currell. His evidence was that he said to Ms H "So with all your cheating have you ever done it with a man in uniform before?" The applicant stated that Ms H and Constable Currell both laughed and that Ms H said that she had not but she had fantasised about it. The applicant said he believed she was continuing the joke and so he said "So if I found an empty park or bushy area around here would you go through with that fantasy?" Ms H said "Are you serious?" The applicant replied "Yeah if you are." The applicant said that Ms H laughed and said "Okay, but do you know a spot where we could go?" and the applicant replied "Yeah I think so, so are you up for it?" Ms H said "Okay." Ms H's evidence was that the conversation did not take place. In cross-examination, Ms H said that she would never have agreed to anything like that. 33 Constable Currell recalled Ms H saying "Are you serious?" and he thought the applicant replied "Yes." Constable Currell could not remember the tone of voice or facial expressions of neither the applicant nor Ms H. By this time, the applicant had turned the vehicle right onto Bellminer Street. He reached the roundabout and went around it. He drove back along Bellminer Street and turned right onto Woodcroft Drive. The applicant stated that Ms H's demeanour did not change at any point. The applicant said that Ms H laughingly said "I don't usually do this type of stuff, Adam knows that," to which the applicant replied that he did not either. Ms H denies she said this. 34 The applicant drove into the cul-de-sac and stopped the vehicle. Both the applicant's evidence and Ms H's evidence differ significantly from this point. 35 In written statements provided to investigating police officers and during cross-examination, Ms H described her version of what occurred after she and the applicant exited the police vehicle. She said that when the vehicle approached the roundabout off Woodcroft Drive, she directed the applicant to turn left at the roundabout. Ms H took off her seat belt and leant across the front seat to point in the direction of the house of her friends, Melanie Williams and Dominic Shipley, where she was staying that night. Instead, the applicant continued to drive the vehicle around the roundabout back in the direction they had come from. At this point, Ms H said that she clarified her directions and the applicant replied "I know what you said" and said words to the effect "I know a park or dead end around here." The applicant continued back onto Bellminer Street in the direction from which they had come. Ms H's evidence was that Constable Currell remained silent. Ms H said that she asked Constable Currell what was going on and where they were going. Ms H's evidence was that the applicant then stopped the vehicle at the top of the cul-de-sac. She kept saying to Constable Currell "Adam what's going on?" She could not recall if he replied. 36 The applicant then exited the vehicle and opened her door. Ms H's evidence was that he took her by her right wrist and led her out of the vehicle. In her original statement to the police, Ms H said the applicant "dragged" her out of the vehicle. In cross-examination, Ms H clarified this and said the applicant did not use excessive force but he had hold of her wrist. She felt at the time that she was being taken against her will. In cross-examination, Mr Nagle confirmed with Ms H that there were no marks or redness found on her wrist when she reported the incident to the police. The applicant's evidence was that he did not touch Ms H and she exited the car herself. 37 Ms H's said there was bush to the left and at the side of where the police vehicle was parked by the applicant. Ms H's evidence was that the applicant led her behind the vehicle and towards the bushes. Her evidence was "I continued saying and kept saying, why are we here? I am married. I am not like this. Why are we here?" Constable Currell remained in the police vehicle. 38 According to Ms H, the applicant then led her 20 or 30 metres away from the vehicle into the bushes. Ms H saw a mattress to the left of where the applicant took her and said to the applicant "Oh my god, don't tell me this was planned?" to which the applicant replied "No, the mattress isn't mine." Counsel for the respondent tendered colour photographs of the bush area with the mattress. The applicant's evidence was that it was a coincidence that a mattress was in the area. 39 Ms H said that the applicant then put his hands on her shoulders and pulled the top of her dress and bra down, exposing her breasts. During her oral evidence, Ms H could not recall if the applicant said anything at this point, but she did remember that at one stage he asked if she was on a contraceptive pill to which she answered "No." Ms H could not recall whether he touched her breasts as she was too busy trying to pull her dress back up. Ms H's evidence was that the applicant then proceeded to touch her on the crotch, on the outside of her dress. She pushed his hand away and said "No." She said that he then sat down and when she looked at him, he had exposed himself to her, holding his penis and asked her, "would I suck." In cross-examination, Ms H could not recall how the applicant was sitting on the ground. She said "I was in a state of shock. I didn't care what position he was in on the ground. All I could see was what I could see." 40 The applicant's evidence was that it was physically impossible for him to have exposed himself as he was wearing his full appointment belt. Mr Nagle submitted that the applicant would have required two hands to undo his zipper and that Ms H would have noticed him using both hands. This was challenged by Mr Skinner, who suggested to the applicant in cross-examination that there was no physical impossibility and it was absurd to suggest otherwise. The applicant disagreed. 41 Ms H's evidence was that she did not see the applicant remove his penis through his pants. Ms H said the applicant then said to her words to the effect "Do you suck?" Ms H said "Look, I'm not like this" and then heard Constable Currell approach. The police vehicle was parked approximately 30 metres away from where the applicant and Ms H were standing. The applicant said that when he and Ms H were coming out of the bush, Constable Currell was approximately 5 to 10 metres from the police vehicle. Constable Currell asked what was going on. Ms H said the applicant told her to tell him it was just a joke and the joke was on him. Constable Currell expressed his relief and they proceeded back to the vehicle. 42 Ms H said that her belongings were in the police vehicle so she had to go back to the vehicle with the two police officers. The applicant then drove Ms H to her friends' house. As she left the vehicle the applicant says she said words to the effect "Thanks for the lift. See you later." Ms H said in her statement that nothing was said as she was driven from the bushland to her friends' house. In cross-examination, Ms H said that she was in a state of shock when she returned to the police vehicle which may have been why her demeanour appeared unchanged. 43 Ms H gave evidence of what occurred after the applicant and Constable Currell dropped her off at Ms Williams' and Mr Shipley's house. Ms H said that she knocked on the front door but there was no answer. She then called Mr Shipley on his mobile phone and he answered the front door. In cross-examination, Mr Shipley said he knew he answered the call from Ms H at 5.28 am because it was recorded on his mobile phone. 44 Ms Paulina Poniewierski was called by the respondent to give evidence. She was staying with Ms Williams and Mr Shipley after the New Year's Eve celebrations. Ms Poniewierski's evidence was that Ms H woke her up while she was asleep on a futon in an upstairs bedroom. Ms H sat beside her on her knees. She was not crying but looked like she was in shock. Ms Poniewierski said she had not seen Ms H in that state before. She thinks she may have asked Ms H, "What's wrong?" In her statement to the police dated 6 January 2008, Ms Poniewierski said Ms H said words to the effect, "When I left the Fiddler the taxi line was huge. I couldn't get a taxi. Smithy gave me a number earlier to contact two police who would be on duty who I might be able to get a lift from. I couldn't get onto Adam so I called Smithy to see if he had another number to contact Adam. They picked me up from the Shell because I walked up there to get a drink. When we got to Woodcroft instead of turning into this street the driver took me to a dead end where there are bushes. I said to Adam what is he doing? But Adam ignored me. The driver got out and pulled me into the bushes and put the hard word on me. There was a mattress in the bush and it freaked me out because I thought it was planned. He said, 'Where [sic] here now we might as well do it.' I told him I wasn't like that then Adam started coming over and the driver said to me just pretend like it is a joke on him. I pretended it was a joke because I was scared I just wanted to get away from them." Ms Poniewierski then said "You should report it. Go have a sleep and we will talk about it later." Ms Poniewierski said Ms H looked tense and "she wasn't crying but she looked upset and worried about what had just happened to her." Ms Poniewierski admitted that she had been well affected by alcohol when she left the Mean Fiddler Hotel. 45 Ms Poniewierski later went downstairs to sleep on the opposite end of the lounge where Ms H was asleep. Ms H woke her up and said, "This is really bothering me." She said words to the effect, "I can't believe it has happened. I thought Adam was my friend." To which Ms Poniewierski replied, "He is not a friend if he let this happen." Ms Poniewierski said that Mr Shipley may have come down the stairs around that time and Ms Williams was close by. Ms Poniewierski told Ms H to tell Mr Shipley and Ms Williams what she had told her. Ms H repeated what had occurred. Ms Poniewierski said that someone, she couldn't remember who, asked if anything happened and Ms H said words to the effect, "When we were in the bushes he tried to take my dress off and he had his penis out." After leaving the house to get lunch, Ms Poniewierski said that when she and Mr Shipley returned, Mr H had arrived and Ms H was crying. She heard Mr H say to Ms H words to the effect, "[Ms H] you have to go and report it." Ms H replied, "Nothing will happen because they are police." She said that she did not see Ms H cry until she saw her husband that morning. 46 Ms Poniewierski said she had lunch on Thursday 3 January 2008 with Ms H, Ms Williams and Ms Lisa Williams, Ms Williams' sister, who had been at the Mean Fiddler Hotel with Ms H and the others. Ms H said to them, "I feel sick. I haven't eaten much since New Year's Day because I am so stressed out about what happened." She said words to the effect, "What was really weird was that we were talking normal. I was talking about my wedding. He was saying he is getting married in March then he drove into the dead end and took me into the bush and did this." 47 Mr Dominic Shipley made a statement at Blacktown Police Station on 5 January 2008 and was required for cross-examination. In his statement, Mr Shipley gave some detail of his movements on the night of 31 December 2007 and during the early hours of 1 January 2008. His evidence was that on 1 January 2008 at 5.28 am (this time was registered on his mobile phone), he received a call from Ms H. When he answered the call, Ms H said that she was at the front door. He let her in and went back to sleep. It had been previously arranged that Ms H would sleep at his house after the New Year's Eve celebrations. 48 Mr Shipley woke up between 8.30 am and 9.00 am and went downstairs. He said he saw Ms H and Ms Poniewierski asleep on the lounge. She woke up and Mr Shipley's evidence was that Ms H said to him, "I have to tell you something. I have already told Paulina." Ms H then said words to the effect, "After I left the Fiddler I couldn't get a cab. I ran into Smithy who I knew from the Quakers Inn who is a policeman. He said if I couldn't get a lift home to give my friend Adam a call to get a lift home because he was on duty. I tried to get Adam but I couldn't get through. I rang Smithy and he said Adam would call me back and pick me up. When Adam arrived he was with another policeman. He cleaned out the back seat and put the stuff in the paddy wagon and said get in the vehicle. I told them I didn't know the address but I knew how to get here so I would direct them. When we were coming down Woodcroft Drive I said go right and he said why not left, I like the sound of the bush better. When they got to the roundabout on Bellminer he turned around and headed back towards Woodcroft Drive and turned right onto Woodcroft toward the bush. When they got to the end of the street he stopped the car, got out, opened up the back door and pulled me out of the back. He dragged me into the bush. I saw a mattress on the ground and I said 'is this a set up? Are you joking?' He tried to rip my dress off and he pulled out his penis and about five minutes later my friend Adam came over and the other policeman said to tell him I'm joking then they dropped me off here." 49 Ms H then asked what she should do. Mr Shipley's evidence was that he, Ms Williams and Ms Poniewierski all said words to the effect, "You have to report it." He went out to get some food and as he was leaving Mr H arrived. In his statement and in cross-examination, Mr Shipley said that when Ms H had told them what had happened to her that morning she seemed to be in a state of shock. She wasn't crying or emotionally upset. His evidence was that Ms H "was a bit shaken and, yeah, surprised. Yeah, I assumed it was the shock of it all, the same with all of us." In cross-examination, Mr Shipley said that the only time he saw Ms H cry on the morning of 1 January 2008 was after her husband arrived at the house. 50 Ms H's evidence was that her husband arrived at Ms Williams' and Mr Shipley's house at approximately 11.00 am that morning. She told him what had occurred. Her husband told her she had to report the incident to the police. They both went to Mr H's parents' home and then attended Castle Hill Police Station with Mr H's mother. 51 Ms Melanie Williams made a statement at Castle Hill Police Station dated 5 January 2008. She was required for cross-examination. She said that at approximately 11.00 am on 1 January 2008, she went downstairs to the living room in her house and saw Ms Poniewierski and Mr Shipley with Ms H. Ms Williams' evidence was that Ms H said, "I have something to tell you guys. I called Chris who is a Policeman who told me I could get a lift [from] some police guys and I knew one of them named Adam. When I was directing them to your address I wanted them to turn left at the roundabout. But instead they went around the roundabout and took me up to the bush. I was thinking it was a joke and I was asking Adam is this a joke but I don't think he responded. This Sam guy got out of the car and took my arm and was very forceful in getting me out of the police car. He took me a little bit further into the bushes where he tried to take the top of my dress off. All the time this was happening I was looking him straight in the eye saying I don't want to do this, this isn't right. He then shows me his private. Adam then came out and asked what was going on and Sam told me to tell him that we [were] just pretending and it was a joke on him. We went back to the van and they took me back to your place." Ms Williams said that at the time Ms H was relaying the events, they were all shocked and told her she needed to report the incident. She believed that Ms H was in shock and did not grasp the seriousness of the matter. 52 Ms Williams' evidence was that an hour later she and Ms H, and possibly Ms Poniewierski, were seated at the dining table talking amongst themselves. At this time, Mr Shipley and Mr H were outside in the backyard. Ms Williams said, "What was your conversation in the car?" Ms H said, "We were talking about Sam who was getting married this year and about how I had just got married and talking about my husband." Ms Williams said, "So they basically took you around the roundabout and he forcefully got you out of the car." Ms H said, "Yeah he did take the top of my dress down." Ms Williams said, "Did [he] do anything else in between that time?" Ms H said, "He wanted me to give him a blowjob." Ms Williams' evidence was that after this she did not want to go into much more detail as she did not want to upset Ms H anymore as she was very emotional and Ms Williams thought it appeared what had happened was starting to hit her. Ms Williams said that she could see Ms H's eyes were welling up. She could see from the expression on her face that Ms H was getting quite upset. 53 In her statement, Ms Williams said that on 3 January 2008, she, Ms Lisa Williams, Ms Poniewierski and Ms H had lunch together. During lunch they discussed what had happened to Ms H. Ms H said, "The police checked the area where he had taken me and found the mattress that was there." Ms Williams said, "Oh there was a mattress there." Her evidence was that at the time she had not been aware that there was a mattress in the bush. After this they did not talk much more about the matter because they knew Ms H had been over the details a number of times. 54 The applicant's evidence of what occurred after he parked the police vehicle at the cul-de-sac is significantly different to that of Ms H. He said that after he parked the car, he said to Ms H, "Come on" and she laughed and said "Are you serious?" The applicant said "Yes." Both he and Ms H opened their doors and exited the vehicle. The applicant's evidence was that Ms H got out of the vehicle of her own free will. According to the applicant, they both walked around the back of the vehicle and towards a small section of shrubs approximately 20 to 30 metres from where the police vehicle was parked. The applicant noted that there was a mattress dumped on the ground and Ms H said words to the effect, "Did you know that was there?" to which he laughed and said "No I didn't." According to the applicant, Ms H also laughed. The applicant's evidence was that it was a coincidence that the mattress was at the spot. 55 They then both walked behind a small section of shrub about waist height and squatted down so that Constable Currell could not see them. Ms H's evidence was that she remained standing. The applicant stated that this was incorrect as if she had remained standing, she would have been visible to Constable Currell. In his statement, the applicant said that daylight had broken and Constable Currell would have had a clear view of the two of them. The lighting conditions at the time were quite good and the police vehicle was visible from a squatting position, according to the applicant's evidence. Ms H said that it was almost sunrise but the bushland was quite dark. Constable Currell's evidence was that the lighting conditions at the time was somewhere between darkness and full sunlight. 56 The applicant said that he and Ms H remained apart at all times and watched the direction of the police vehicle. He recalled saying, "Do you reckon he thinks we're actually doing something?" He said Ms H laughed and said "Probably" and they looked to see if there was any response from Constable Currell. The applicant's evidence was that they remained behind the bushes for a maximum of two minutes. Ms H's evidence was that they were behind the bushes for between five to eight minutes. Constable Currell's evidence was that they were behind the bushes for one minute. The applicant emphasised that he did not at any point suggest anything sexual to Ms H, nor did he touch her at any time. The applicant maintained that they were both squatting looking in the direction of the police vehicle at all times. 57 The applicant's evidence was that he and Ms H both stood up from their squatting position when they saw Constable Currell approach. During Constable Currell's evidence, he said that when he exited the vehicle to see where Ms H and the applicant were, he saw Ms H standing up. Mr Nagle took Constable Currell to his statement to the police of 5 January 2008 where he said "[Ms H] stood up and waved." During cross-examination, Constable Currell could not recall if that was the case, but said it would most likely be the most accurate description he could offer. 58 In the applicant's statement to the police dated 20 March 2008, he said the following: After approximately one minute, Constable Currell got out of the police vehicle and walked around to the back, looking in our direction. I suggested to Ms H we stand up and walk out because the joke had gone on long enough. Ms H and I then stood up, and came out from behind the shrubs. When Constable Currell saw us smiling and laughing, he laughed and said, "What did you two do?" Ms H said, "What do you think." Constable Currell said "Probably nothing." Ms H said "Nah only joking." I said, "Did we get you?" Constable Currell said, "Yeah you got me, I wasn't sure what was going on." 59 They got into the police vehicle and drove Ms H to Ms Williams' and Mr Shipley's house. Constable Currell could not recall any change in demeanour in either the applicant or Ms H. Constable Currell said that after they dropped off Ms H at the house he remembered asking what had happened and the applicant replied "It was just a joke," or "We were just joking". 60 In cross-examination, the applicant agreed with Mr Skinner that it was his case that he played a practical joke on Constable Currell, which involved a myth that he was going to have sex with Ms H in the bushes. 61 During cross-examination, Ms H denied she consented to what occurred at the bush reserve. Ms H gave the following evidence: Q: I put it to you that you went in there of your own free will? A: No, I did not. Q: Because you realised that a joke was being played on Adam Currell and you were happy to go along with it? A: No, I did not. As I already said, I wondered where Adam was and why he was not there when this happened to me. ... Q: I suggest to you that the entire time you were out of the police vehicle at the site where the bushes were, you were crouched down and that you were complicit in a joke on Constable Adam Currell? A: No. It wasn't a joke. Consideration 62 In order for the applicant to succeed in his application for review, he must firstly and logically explain how an agreement between he and Ms H, whom he had never met, came about and that resulted in them playing a practical joke on Constable Currell without Constable Currell being aware of it; secondly, explain why Ms H would participate in such a scenario and thirdly, his denial that he engaged in inappropriate conduct of a sexual nature whilst on duty, must be accepted over the evidence of Ms H and her friends. As I will demonstrate, an analysis of the evidence of the applicant falls well short of proving these elements. In particular, it is difficult to understand if what occurred between the applicant and Ms H was consensual, why within minutes of arriving at Ms Williams' and Mr Shipley's home at 5.28 am on 1 January 2008, Ms H complained about what had occurred. Such conduct is inconsistent with the practical joke scenario relied upon by the applicant. 63 In my view, having considered all of the evidence before me, I am comfortably satisfied that it is highly probable that the applicant did engage in inappropriate conduct of a sexual nature towards Ms H on 1 January 2008, whilst on duty. It is incredible that an experienced police officer would involve himself in a practical joke with a female stranger, the effect of which was to have Constable Currell believe he was going to accompany Ms H, in the early hours of 1 January 2008, into deserted bushland so as to give the impression that they were going to engage in conduct of a sexual nature. This is the picture that the applicant sought to convey in the answers to the questions asked of him during this review. 64 I am comfortably satisfied that the version of events given by the applicant was an invention by the applicant to answer the complaint by Ms H in respect of his misconduct towards her. In respect of what Ms H says occurred whilst she was in the bushes with the applicant, I prefer Ms H's version of events. Ms H had no reason to fabricate the events described by her. 65 I have endeavoured to make an independent assessment of both the sufficiency and the quality of evidence. In this regard, I had the advantage of both seeing and hearing the evidence given by, in particular, the applicant, Ms H, Constable Currell and Ms H's friends, Ms Poniewierski, Ms Williams and Mr Shipley, who each corroborated Ms H's evidence of complaint and gave evidence of her distress, as did Mr H and Mr Wallace in statements relied upon by the respondent. I formed the opinion that Ms Poniewierski, Ms Williams and Mr Shipley were witnesses of truth. In light of the gravity of the allegations made, I have carefully weighed the testimony of the applicant, Constable Currell and Ms H, together with that of the other witnesses who gave evidence. For reasons which I will outline, I have come to the conclusion that the evidence of the applicant and Constable Currell lacks credibility. This was not, as was submitted by Mr Nagle, a word against word case. This ignores the presence of Constable Currell and the important evidence of complaint made by Ms H contemporaneously to her friends (who were not at the bush reserve), during the morning of 1 January 2008, and on the same day to the police. 66 Mr Nagle's attempt to impugn Ms H's credibility by contending that where her evidence differed from that of the applicant which, he submitted, was corroborated by Constable Currell, and that therefore their evidence should be preferred, is rejected for the reasons that follow. 67 In response, Mr Skinner submitted that "no one who saw or heard her evidence in this Commission on Thursday 3 December 2009 - and tested it against all her prior statements outside the hearing room and against those of the other witnesses relevant to this matter and against all the other relevant evidence - could be left in any doubt that she was speaking the truth in her sworn evidence." 68 It was submitted that her evidence was compelling in its cogency, its detail, its accuracy, and its consistency as given under oath in this Commission and in various versions preceding the review. I have reached my own conclusion that Ms H was a witness of truth. I agree with the submission of Mr Skinner. 69 Mr Skinner presented the respondent's case as what he described as "a black and white case." Counsel submitted that on the respondent's case, the Commission would find the complaint by Ms H in respect of the applicant's conduct on 1 January 2008 made out. 70 In giving her evidence, Ms H was able to say when the conduct occurred; she recalled conversations whilst both in the police vehicle and in the bushland; Ms H was able to describe the bushland; she was able to give the sequence in which the events unfolded; she was able to say what she told her friends; she was able to relate her distress. On the other hand, I found the evidence of both the applicant, and particularly Constable Currell, in respect of critical issues, which I will discuss, vague, inconsistent and not credible. I relied upon, amongst other matters in forming this assessment, their demeanour generally, their answers in cross-examination and the inherent improbability of much of what they said. 71 By contrast, I found Ms H to be an impressive and credible witness who endeavoured to give her best recollection of the relevant events. She answered questions after careful consideration. She was prepared to concede answers that on occasions were not in her interests when that was her recollection. I prefer the evidence of Ms H over the accounts given by both the applicant and Constable Currell. The following analysis demonstrates the basis and reasons upon which I have arrived at this conclusion. The inevitable conclusion to which I was led was that the evidence of both the applicant and Constable Currell was unreliable and could not be accepted on any point where it conflicted with that of Ms H. 72 The applicant's evidence is, after the exchanges in the police vehicle between himself, Ms H and Constable Currell, he interpreted what Ms H said as an agreement to have sex with him. This, of course, ignores the evidence of Ms H who, during the conversation in the police vehicle had said "Are you serious" in a manner she says was intended to convey that she was not that type of woman. She had recently been married, and furthermore, she did not know the applicant. She said she would not engage in that sort of behaviour. Her evidence was "No I'm not like that". Unsurprisingly, she says that she continued to express her alarm and concern when she was escorted out of the vehicle by the applicant. It is the applicant's evidence that it was not his intention to engage in conduct of a sexual nature with Ms H and that he was only joking. In my view, the evidence of the applicant, when properly considered, is not credible. 73 There are a number of significant inconsistencies in the applicant's oral evidence. During cross-examination, the applicant said that he told Ms H when he got out of the police vehicle and walked behind it, out of the presence of Constable Currell, that he was only joking. This was the first occasion that the applicant gave such evidence. It was not contained in any of his statements, or in his response to the respondent. The applicant was unable to explain this omission. 74 Ms H's evidence was, as Constable Currell approached the bushes, the applicant told her to say that it was a joke on him (Constable Currell). She says that she was so embarrassed and confused that she said "It's a joke Adam". She could not understand why Constable Currell would have let the applicant take her to the bushes and "remain in the car for all that time." 75 The applicant's written statement does not contain any reference to telling Ms H that it was a joke when they got out of the police vehicle. His statement to the respondent read: Ms H and I both walked towards a small section of shrubs, about 20 - 30 metres from the police vehicle. As we neared the small shrub, we saw a mattress that had been dumped on the ground. Ms H said words to the effect of "did you know that was there." I laughed and said, "No I didn't." Ms H laughed as well. We then both walked behind a small section of the shrub that was about waist height. I squatted down and so did Ms H. We did that so Constable Currell could not see us. 76 In cross-examination his evidence was: Q. You say at that point she has formed some sort of agreement with you to conduct a practical joke on Constable Currell? A. Well, at that point when I said so, at the point when I said, "So with all your cheating have you ever done it with a man in uniform before?" H and both I and Constable Currell laughed. Q. Can you say H? A. Sorry, H laughed during that, H said, "No, I haven't, but I have fantasized about it. At that point I was of the belief that she was just feeling the conversation by making a pass, that she fantasized? Q. "I believe that she was continuing to joke." What joke was that, a joke by you on her that you are going to have sex on her or a mutual joke by you and her on Constable Currell? A. Sorry, I don't understand. Q. Well, there is a very big difference, I would suggest, your [sic] thinking it is going to be funny to play a joke on Constable Currell. You said that up above? A. Yes. Q. You are saying she has fantasized about cheating on her husband by doing it on [sic] a man in uniform? A. Yes. Q. And you say, these are your words, I suggest, written in the light of what you well knew to be the consequences if they were not accepted, to use your words, "I believe that she was continuing the joke." Who do you refer to, what is the joke? A The fact we were joking around, with what we were saying. She never became serious. Q. What is the joke, who is playing a joke on who? A. At that point, at that point it was the beginning of the joke. Q. Are you saying she is continuing the joke and you said, where you and she agreed to conduct a joke on Constable Currell? A. Yes, as I said, I believed at that time she is believing there was a joke happening, that is why she said she was fantasizing. 77 Mr Skinner submitted that he was then badly caught out during cross-examination in respect of this critical issue. The applicant's evidence was: Q. Is she seriously going to have sex with you or just going to pretend she is going to have sex with you? A. I don't know what she is thinking. Q. You wouldn't, because you hadn't discussed it with her? A. No. Q. You didn't know her? A. No. Q. The extent of the conversation you had with her at that point of time was just at a service station in a car over the few minutes, correct? A. Yes, over a period of 20 to 25 minutes, yes. Q. I would suggest there is no possibility that you could come to the conclusion that woman, who you had not met before, was going to go along with you to pretend that she was the sort of girl who would go to the bushes and have sex with a man she met 10 minutes ago? A. She, I said in this paragraph 3, page 8, so if I, so if I said on paragraph 3 in my response, this is what I said in the truck, if I found an empty park or bushy area, ground right here would you go through with that fantasy? H said, "Are you serious?" I said, "Yeah, if you are," and she laughed. Q. I suggest she may well have said, "Are you serious?" At that point of time but not in the tone? A. She laughed. Q. She? A. And then said, "okay". Q. She, I suggest to you, was shocked by your suggestion, "Are you serious?" And laughed nervously? A. After she laughed, "Okay, but do you know a spot where we can go?" Q. That is what you said? A. Yes. Q. At that point she has to all sense and purpose agreed to have sex with you? A. Yes. Q. You know nothing different? A. Well, I knew what she was agreeing to, but again it was not my intention to go and do that. Q. You hadn't told that to her? A. Not at that point. 78 The final answer completely contradicted the earlier evidence above and the applicant's prepared statements to that point. 79 The cross-examination continued: Q. So when did you tell her that you were only joking? A. When we got out of truck, walked behind the back of the truck, Adam Currell was not in the presence of our conversation. Q. Why isn't that in your statement, indeed, any statement, this response to the Commissioner or anywhere? A. Not sure. Q. Page 9 of your response to the Commissioner as you are opening the driver's door, opening her door, first paragraph? A. Yes. Q. You got out, she got out and then you just go straight to H, "and I walked around the back of the police vehicle." Next paragraph, "H and I both walked to a small section of shrubs and so on. There is nowhere there. It is at that point I think you said, where you disillusion her, tell her you weren't going through with it, nowhere at any point in your statement is there? A. No, there is not. Q. And what is your explanation for that omission? A. I have no reason for it. I guess every little minute detail of that evening is not going to be. Q. I suggest to you that is the critical detail, that is the biggest detail. It is not in your statement here, is it? A. No, it is not. Q. It is not in any statement you file with this Commission? A. No, not that I am aware of, no. Q. It was not volunteered by you when you were given questions from your counsel? A. No, I was not given the opportunity, no. Q. And yet it is that very thing that you say to the EAP Constable Spocker you spoke to 5 January 2009, you have now heard that tape, seen that transcript. A. Yes. 80 On 5 January 2008, after being advised that he was required to attend Castle Hill Police Station on 8 January 2008 to be interviewed, the applicant was advised to call the Employment Assistance Program ("EAP") and speak to a counsellor. There was an authorised telephone interception on the applicant's mobile phone. His telephone call to EAP was intercepted. The audio recording of the telephone call was played during the proceedings and a transcript of the recording tendered. During the EAP conversation, the applicant said: Well she was very she was very happy to pay [sic] along with the joke on the night and she even, when we went back to the truck she even told the other bloke it was a joke and how we weren't serious and ... ... Then we stop the truck and then I got out and then I sort of said how when we get out of the truck and my partner was still on the front seat I said oh I'm only joking but like can we just play along while, so he thinks... 81 Having heard the conversation with the EAP counsellor played in the Commission, the applicant was compelled to adopt it as being correct. However, in my view, his evidence was unconvincing. 82 The first mention of a joke in the applicant's statement is when Constable Currell approached the bushes and the applicant said Ms H stated "Nah only joking." This is, of course, consistent with Ms H's evidence that she responded at this time, at the direction of the applicant, that it was a joke. On any version, Constable Currell was not aware that a joke was supposedly being played on him until he walked towards the bushes where the applicant had taken Ms H. 83 The applicant also agreed because of the way the conversation had occurred in the police vehicle, that he had conveyed the impression to Constable Currell that he was going to have sex with Ms H and that she had agreed. If this be correct, the applicant did not need to play any joke on Constable Currell. In order, of course, for the alternate version to be accepted, it meant Ms H formed an agreement with the applicant to conduct a practical joke on Constable Currell. There is, I must say, a complete air of unreality about such a situation unfolding. 84 This analysis demonstrates, in my view, that the applicant has failed to make out the first element that I set out in [62]. It follows that the reason he says he took Ms H into the bushes, that being, to play a practical joke on Constable Currell collapses. 85 A further significant inconsistency in the evidence of the applicant, Constable Currell and Ms H is in respect of the time the applicant and Ms H were behind the bushes. 86 The applicant's evidence was that between 4.50 am and 5.00 am on 1 January 2008, he and Constable Currell refuelled their police vehicle at the Mobile Service Station, Quakers Hill. Constable Currell says that he received a phone call from an off-duty officer, Constable Smith, at about 4.50 am in relation to Ms H needing a lift to her friends' home. Ms H's evidence was that she was collected from Rouse Hill by the officers at about 5.00 am on 1 January 2008. 87 Mr Nagle tendered a computer generated map from a satellite mapping website known as "Whereis.com", which sets out the route that the officers took from Rouse Hill to Woodcroft, the distance travelled being 15.8 klms, and a breakdown of the time taken in minutes and seconds to complete the journey. The total time taken to drive from Rouse Hill direct to Bellminer Street, Woodcroft according to "Whereis.com" was said to be 21 minutes. This time is calculated by using appropriate speed limits. A security DVD of the Service Station at Rouse Hill shows the police vehicle driving into the Service Station at exactly 4.59 am. The applicant's evidence given before the tender of the "Whereis.com" calculation was that it took "about 20 minutes" to drive to Woodcroft. The applicant amended this earlier evidence after the tender of the "Whereis.com" document to "probably 20 to 25 minutes" to drive from the Service Station to Woodcroft. 88 The evidence of Ms H was that once she was back inside the police vehicle, it took two minutes to drive to her friends' house. Mr Shipley answered a phone call from Ms H at 5.28 am. The time was recorded on his mobile phone. Ms H's evidence was that she was behind the bushes for maybe five to eight minutes. The applicant's evidence was that it was "probably a minute and a half to two minutes, absolute maximum, two minutes." Constable Currell's evidence was, "a minute or so maybe." The time estimates given by Ms H are consistent with there being an approximate period of five minutes available in terms of time when calculations are made, based on the evidence of the time taken to drive to Woodcroft, allowing for a period of time at the bushland, and then driving Ms H to her friends' home. 89 In total, there was a period of 27 - 28 minutes between leaving the Service Station and the call to Mr Shipley. The assessment of the driving time according to "Whereis.com" was 21 minutes. This of course was an average time and it may well have taken less than 21 minutes at the particular time that the trip was undertaken. It is difficult to envisage how it could have taken any longer at that time of the day. To drive 15.8 kms from Rouse Hill to Bellminer Street, Woodcroft in 21 minutes results in the vehicle travelling at an average speed of approximately 45 km per hour. It seems unlikely at that time of day the applicant would have averaged such a low speed even taking into account that on the applicant's evidence there were in excess of 20 sets of traffic lights and 8, if not more, were red along the way. Taking all these factors into account, there is at a maximum, an unexplained period of at least four to five minutes. Such a period of time is more consistent with the evidence of Ms H of the period she estimated she was behind the bushes than with the assessment given by the applicant or Constable Currell. 90 Mr Nagle submitted that Constable Currell was the only person present throughout the entire encounter between Ms H and the applicant and that his evidence was critical in corroborating that of the applicant. 91 Mr Skinner made it clear when calling Constable Currell that he was not called as a witness of truth in aid of the respondent's case. 92 To the extent that Mr Nagle submitted that the applicant's evidence should be preferred because it was corroborated by Constable Currell, an analysis does not bear that out. Generally, Constable Currell's evidence was inconclusive. To my mind, Constable Currell's evidence was an attempt by him to steer a middle course between agreeing with obvious inferences, arising from things he admitted he saw and heard at the relevant time but in respect of other critical issues of having no recollection whatsoever. Indeed, during the course of his oral evidence, he answered on no fewer than 59 occasions "I don't know," "not sure," or, "I don't remember." This was in respect of what must have been an unusual incident: the collecting of a civilian in a police vehicle who was taken to bushland in the early hours of New Year's day. 93 Although an inexperienced police officer, in my view, Constable Currell's training should have resulted in a much clearer recollection of the incident. I reached the conclusion that in giving his evidence, Constable Currell was conflicted through his loyalty to his colleague, friend and superior officer at the relevant time. This resulted in his evidence being unreliable. It would be unsafe, in my view, to place any reliance on Constable Currell's evidence. Despite being a junior and inexperienced officer, it was observed in the Investigators Report as follows: Investigators noted that Constable Currell was extremely nervous during the taking of induced statement from him. He indicated he had not been interviewed as a result of a complaint before. There were occasions during the interview where he appeared forgetful which could have been interpreted as evasive but it is the opinion of investigators that he was doing his best to answer questions asked of him for an officer of his limited experience. 94 Having observed Constable Currell give evidence on oath, I do not share the investigators' conclusion. A clear example of where I prefer Ms H's evidence over that of Constable Currell is in his assessment of the time that Ms H and the applicant were behind the bushes, details of which I have referred to earlier (at [86] - [89]). 95 A further example of where I prefer the evidence of Ms H is in respect of whether she was standing or crouching when behind the bushes. I reject the evidence of both the applicant and Constable Currell that at any time she was crouching. The evidence is that the bushes did not fully obscure Ms H when she was standing. It was, no doubt, for this reason that the applicant chose to sit on the ground during part of the time that he was behind the bushes, so that he could not be observed by Constable Currell. As I have already observed, on any view of the evidence, Constable Currell was not aware that a joke was being played on him until he approached the bushes. 96 The evidence of Constable Currell regarding whether Ms H was standing up behind the bushes, when given under oath, was telling in that Constable Currell did not adopt what he had said in his police interview on 5 January 2008. During cross-examination by Mr Nagle, Constable Currell gave this evidence: Q. I want to suggest to you that you didn't see Ms H just standing there the entire time and that when you say "stood up" that that means that she made herself apparent to you by coming out from behind the bushes, thereby showing you at least from her waist and above and that then you could see her? HIS HONOUR: Again, just in fairness, Mr Nagle, and to assist me later, there are two questions there. I don't know what the witness's answer is going to be but you have asked two questions. It would be preferable if the questions are broken up in my view. Otherwise the answer may not be of assistance. NAGLE Q. She wasn't just standing there the whole time, was she, because you would have seen her from the truck if she was? A. I don't know. Q. You don't know or you can't recall? A. I don't recall. I don't know. HIS HONOUR Q. I'm sorry, I just didn't hear the last answer? A. I don't know. I can't remember whether she was - yeah. Q. You don't really know? A. No. NAGLE Q. I suggest to you that you wouldn't have said on 5 January 2008 that she stood up and waved - sorry, that you said that she stood up and waved if she had just been standing there the whole time. Do you accept that? A. Yes, that makes sense. Q. And so when you say that she stood up and waved on 5 January you meant that she rose up and made herself visible to you? A. She somehow made her visible to me. I don't - I said that she stood up back then, which would be the most accurate that I can offer. I don't know. Q. When you say the most accurate that you can offer, you mean at the time using that word it was the most accurate that you could offer. Is that what you mean? A. No, that's - I don't know. That was my response then, it's going to be more accurate than now. Q. I am not sure you will be able to answer this but on 5 January you wouldn't have used the term "stood up" if she was at all times just standing there upright, would you? A. I don't know. I wouldn't think I would but I don't know. Q. But here today you just can't remember? A. I don't remember. 97 This evidence, to the extent it was relied upon by Mr Nagle to corroborate the applicant's evidence that Ms H was crouching for a period of time whilst behind the bushes, is most unhelpful and unsatisfactory. In my view, it is of no assistance to the applicant. Once again, I prefer the evidence of Ms H who said she never crouched. Her evidence is completely consistent with what, to my mind, any woman would have done in such circumstances. She was distressed, confused and in shock in finding herself in the bushes with an unknown police officer. A willing participant may have crouched or bent over. Ms H was not a willing participant. 98 I reject Constable Currell's evidence that Ms H stood up and waved and said "It's ok Adam, we're over here, we're coming back now." Neither the applicant, nor Ms H gave this account. Ms H's evidence is completely inconsistent with any bending over or crouching. She completely rejected the overtures of the applicant, saying she was not that type of person. Constable Currell's memory during cross-examination was very poor. He came across as a most unhelpful witness, deliberately evasive on occasions, and gave me the impression that he was attempting to protect the applicant. 99 Constable Currell's conduct on 1 January 2008 brings discredit upon him. Apart from being a serving police officer on duty on the night, he was also a friend of Ms H. It was Constable Currell's failure to provide any assistance to Ms H which caused her significant distress, both at the time of the incident and when she subsequently gave evidence, because she felt so let down by him. There was no explanation given by Constable Currell as to why he did not intervene when the applicant ignored Ms H's direction at the roundabout. 100 Constable Currell's evidence that Ms H did not question why the applicant had gone around the roundabout is inconsistent with that given by Ms H. Constable Currell confirmed that Ms H said "are you serious" although this evidence does not go so far as to deal with the tone of that question. His evidence that "he just thought it was a joke or something" and then they got out of the car strains credulity. 101 Mr Nagle also placed weight on the evidence of Constable Currell that Ms H's demeanour never changed and that he was not given any indication to think that Ms H had just been assaulted. Her evidence in cross-examination was: Q. I suggest to you that you were still of the same demeanour when you got back into the police vehicle as you had been when you were picked up in the police truck earlier that night - that is you were still happy and willing to have a laugh? A. I was in a state of shock. I was scared. Can I further say - I trusted Adam. Q. If you trusted Adam why didn't you tell him what happened immediately after? A. I trusted him when I got in the vehicle. That was the only reason I got in that vehicle apart from the fact that they were on duty police officers. I didn't tell Adam because he sat in the car the whole time until basically it was all over and then he came to me and not once did he try and stop Sam from taking me in there, not once. So by that stage I was doubting my trust of Adam. 102 Ms H's evidence was that she was in a state of shock when she got back into the vehicle. To the extent that her demeanour may not have changed, it is explicable on this basis alone. I have already concluded that Constable Currell's evidence was unreliable, such that no weight should be accorded to it in respect of resolving any conflict with the evidence given by Ms H. 103 Mr Nagle relied on Ms H's withdrawal of her complaint within 10 days of first having made it, as being a factor that insufficient weight was given by the respondent. 104 Ms H's evidence was that she was initially reluctant to report the incident to police because it involved police officers and that "they stick together." This was her initial reaction where, as the evidence discloses, she was upset and still in shock. However, within hours of the incident she attended Castle Hill Police Station to make a complaint. These are quite different proceedings to criminal proceedings and the weight that should be accorded to Ms H's sworn evidence, in my view, should not be diminished in any way because she did not proceed with her complaint that gave rise to the criminal charges. 105 Mr Nagle submitted that Ms H never gave any detail at the time of the incident or during the course of the proceedings. Counsel's complaint was that the allegations were general in their nature and did not descend to any level of specificity. The basis for this submission was that Ms H could not say how the applicant was sitting in the bushes and how he was holding his erect penis, nor which hand he used to touch her crotch, or whether he touched her breasts after pulling down her dress and bra straps. On a proper reading of Ms H's evidence, such criticisms are not made out. Ms H's evidence was she could not recall whether the applicant touched her breasts because she was too busy trying to pull her dress back up. It was while she was doing this that the applicant touched her on the crotch and she knocked his hand away. When Mr Nagle took Ms H through her evidence, he did not ask her what hand the applicant used to touch her crotch. Ms H's evidence was that after she knocked the applicant's hand away from her crotch, he sat down and the next moment that she looked at him, he had exposed his erect penis. Her evidence was that she did not see him either unzip his pants, nor did she hear the unzipping. Her evidence was this was the last thing she expected when she got into the vehicle earlier that evening. Her evidence was "I was in a state of shock. I was scared. Can I further say - I trusted Adam." Asked specifically about this detail, Ms H gave the following evidence: Q. What part was exposed? A He exposed his penis. Q. Was it erect? A. Yes it was. Q. Where did his penis come from? What was he wearing? A. He was wearing his uniform. He was in his uniform. Q. Did he display it to you in some way? A. I just remember he sat down on the ground and I looked to see and he was sitting on the ground. And he - I just looked down, and I saw it and he said. I can't remember whether he said, whether he said, do you suck? Or, would you suck? And I said, look I'm not like this, and at that point I heard Adam, heard foot steps behind me. I saw Adam, he was coming in and he was in line with the tree and I heard him saying, what's going on. Q. Then what happened? A. Sam said, is that Adam and he said yes, and he said, tell him it is just a joke, the joke is on him. 106 It is difficult to see what further detail Ms H could have given about what occurred. She was cross-examined by Mr Nagle about how the applicant was sitting and how he was holding his penis. Ms H could not recall any further detail other than that the applicant was sitting on the ground and holding his erect penis. I do not find it difficult to understand that Ms H did not take particular notice of how the applicant was holding his penis. Her evidence was that she was in shock and scared. As a matter of common sense, a woman finding herself in such a situation would be fearful and feeling completely vulnerable. To the extent that it was submitted by Mr Nagle that in view of the inexact nature of the allegations, Ms H's evidence should be rejected, I disagree. I also reject the submission that any finding against the applicant in these circumstances would be unsafe. It is without foundation when the evidence is analysed. 107 As part of the applicant's defence, Mr Nagle attempted to suggest that Ms H was a woman of loose morals. This suggestion caused Ms H considerable distress and her reaction to it can be gleaned from the following evidence: Q. I want to suggest to you that after the point of, "while the cat's away the mice will play", Samuel Becke said to you, "So, with all your cheating have you ever done it with a man in uniform before"? A. I have never cheated on my husband, and that was not a conversation that was had. Q. And after that was said both yourself and Constable Currell laughed? A. No, that was never said, so, no, I never laughed. Q. And that next you said that you had not done it with a man in uniform before but that you had fantasised about it? A. Do I even have to answer that? HIS HONOUR Q. What is being put to you, Ms H, is whether you responded by using words to that effect? A. No, I did not. HIS HONOUR: Would you like a short adjournment? WITNESS: No. Just keep going. Sorry. HIS HONOUR: We will pause for one moment. These are propositions that Mr Nagle, as counsel for Mr Becke, the applicant, is putting on instructions and, although there may be a degree of sensitivity about them, they are matters that he is entitled to put in terms of what has been alleged that you said. So, we will take it question by question and you deal with each matter on that basis, and if you need a break at any time, just let me know and we will have a short adjournment. WITNESS: Thank you. HIS HONOUR: Yes, Mr Nagle. Q. I suggest to you that after you had said that you had fantasised about a man in uniform, Samuel Becke then said to you, "So, if I found an empty park or bushy area around here you would go through with that fantasy"? A. No, that was never said to me, and I never would have agreed to anything like that. Q. And that you then said, "Are you serious?" To which the applicant, Samuel Becke, said, "Yeah, if you are". Sorry, I will break that up, you then said, "Are you serious"? A. No, I didn't say that. Q. And he replied, "Yeah, if you are"? A. No. Q. You then laughed and said, "Okay, but do you know a spot where we could go"? A. No, I would never have said that. Q. And Samuel Becke said, "Yeah, I think so. So, are you up for it"? A. No, that was never said. Q. And you said, "Okay"? A. No. Q. I suggest to you that, as the police truck was driving along to the cul-de-sac, after it had taken the right turn back on to Woodcroft Drive you said in a laughing tone, "I don't usually do this type of stuff, Adam knows that"? A. No, because I didn't even know what the intentions were at that stage. Q. And the applicant then - sorry, Samuel Becke then said that he ask not do those types of things either? A. What types of things? Because none of those conversations were even heard in the car. Q. I suggest to you that as the truck pulled up Samuel Becke said to you, "Come on"? A. No. Q. To which you replied in a laughing tone, "Are you serious"? A. I did say "are you serious" a number of times but not to "come on". Q. You also deny the laughing tone? A. Yes, I do, because by that stage I was confused as to why we had ended up where we were when I was almost in my friends' street. Q. After having said that I suggest to you that you then got out of the police vehicle of your own free will? A. No, I did not. Q. I suggest to you that after you got out of the police vehicle with Samuel Becke he told you he was only joking and that he wanted to fool his partner? A. No, that was said after the events in the bush had occurred. Q. I suggest to you that it happened almost immediately after you got out of the police vehicle? A. No. 108 There is no evidence that would enable any finding to be made that Ms H enjoyed anything other than a good reputation. It is inherently unlikely that a woman who was recently married and who was, in effect, a stranger to the applicant would involve herself in a practical joke, the effect of which was to have Constable Currell believe that she was going to accompany the applicant, in the early hours of 1 January 2008, into the bushland, to give the impression that they were going to engage in conduct of a sexual nature. 109 A further conflict in the evidence of the applicant and Ms H is whether Ms H was assisted from the vehicle by the applicant taking hold of her wrist. The applicant's evidence was that she exited the vehicle herself. Constable Currell said in his statement to the police that the applicant opened Ms H's door and Ms H "jumped out." Ms H's evidence was that the applicant steered her out of the vehicle by her wrist. I prefer the evidence of Ms H over that of the applicant and Constable Currell on this issue. When Constable Currell was asked by Mr Skinner if he observed how Ms H got out of the vehicle he answered "no, nothing out of the ordinary." Ms H's evidence was consistent about this issue. She told her friends the applicant took hold of her wrist. She also told the police. In addition, she was prepared to concede that the use of the term "dragged" was not correct. Her evidence during cross-examination was: Q. I suggest to you that a number of times when retelling your version of events on the morning of 1 January 2008 you told the persons present at xxxxxxxxx xxxxx that you were dragged from the truck? A. I later clarified that in a statement to police where I said I wasn't forcefully removed from the car. It felt to me at that time that I was taken against my will and, therefore, the term "dragged" was used, but I later clarified that with police and said he had me by the wrist basically. Q. You used the term that "he didn't use excessive force" in your later statements, don't you? A. Yes, that's correct. Q. Did the police tell you to use that term? A. No, I actually believe I was the one. They asked me how, did he pull me out and I said, no, he did not use - in all honesty he did not use excessive force on me. The fact of the matter was that he still had his hand on me and I was confused. Q. But up until then you had used the word "dragged" to a number of team [sic] people, didn't you? A. No, I don't believe I did. I know I said that in my statement because that's how it felt to me at the time. I don't recall the terminology that I used with other people. 110 Once again, it is highly improbable that a recently married woman would voluntarily alight from a police vehicle, with a stranger, at a bush reserve, in the early hours of the morning, and willingly go into the bushes with the him, all of this occurring in front of a person that she knew. I am comfortably satisfied that Ms H was led from the police vehicle by the applicant against her will. 111 In my view, the evidence of Ms H's shock at the applicant's behaviour, firstly during the drive to Woodcroft and secondly at the bush reserve, was completely believable. Her evidence of disbelief as to what was occurring is completely believable. Her evidence as to her continued protestations that she was "not like that" and questions as to whether the applicant "was serious" are completely believable. Her anger with herself for being so stupid as to get in such a situation is also completely believable. Her distress at Constable Currell, her friend, letting her down in not coming to her immediate aid is completely believable. Her not wishing to look too closely at the applicant when he was exposing his penis to her and requesting fellatio, is completely believable. Her second thoughts as to going through with a complaint leading to her giving evidence in a hard fought criminal trial which would have resulted in the applicant going to prison is completely believable. 112 Her distress and fear at the time was also completely believable. A young woman in an isolated and dark bush reserve who was being physically assaulted, by a fully-armed police officer who was a stranger, in the near presence of a police officer who she had hitherto trusted but who was doing nothing to stop it would cause any woman distress and fear. By contrast the applicant's evidence, as I have observed, was implausible. 113 Overall, the Commission was presented with sufficient evidence from and about Ms H to form the view that she was telling the truth. By contrast, the applicant's evidence, as I have observed, was implausible and strained credulity. On the requisite standard of proof, I am comfortably satisfied that Ms H would not have engaged in the practical joke scenario upon which the applicant's case is based. It follows that the second element of the applicant's case fails. 114 Furthermore, her evidence of complaint stands as corroboration. See R v H (1997) 92 ACrimR 168. The proposition that her complaints to her friends, her husband and then the police after the event are "scant in detail", as submitted by counsel for the applicant, is not made out on the evidence, and is rejected. Ms H was quite clear, detailed and consistent in telling her complaint to her friends and the police. To the extent that Mr Nagle pointed to some minor differences in what she told her friends, this, in my view, only enhances her evidence. Each of the topics of her complaint remained the same and her accounts consistent. Variations of the accounts given by Ms H were peripheral and inconsequential. 115 Mr Nagle submitted the lack of DNA evidence supported the applicant's version and negated Ms H's version of events. The DNA evidence was not conclusive. It is therefore of insufficient weight in all the circumstances to be able to be treated as corroboration of either case. 116 A further aspect of Ms H's evidence that was the subject of criticism by Mr Nagle was in respect of the period that Ms H was at the Mean Fiddler Hotel and prior to entering the police vehicle. The basis of the criticism went to possible inaccuracies as to timing. For example, the last time that she saw her friends at the Mean Fiddler Hotel on 1 January 2008; the time that she waited in the taxi line; the time that it may have taken for her to walk to the Service Station; how long it took her friends to obtain a taxi; and what she said to Constable Smith when she called him at 4.50 am. 117 In my view, little weight should be given to these matters. They are of little relevance to the critical issue of who is to be believed. It is also important to bear in mind that it was New Year's Eve. Ms H attended the Mean Fiddler Hotel which was crowded and then left to attempt to obtain a taxi to take her to her friends' home. There is no reason for her to have made specific note of any time in respect of the examples given above regarding time. In my view, such differences in times given between her and her friends adds to, rather than detracts from her credibility. Ms H was candid and direct when she gave her evidence. She did not seek to deny that she was intoxicated, rating her level at approximately 4 out of a scale of 10. She did not deny that she was "a very friendly person in nature and perhaps that could be seen as being flirtatious." The basis of this attack on Ms H's credibility was to found a motive that the applicant sought to raise that Ms H was having a romantic interlude with an unidentified man on 1 January 2008. 118 Mr Nagle contended that there was a missing hour between 3.47 am and 4.50 am when Ms H could not explain her movements. Contrary to Mr Nagle's submission, Ms H was able to explain her movements in that "missing hour". She had met a former high school friend earlier in the evening and he had helped her attempt to flag down a taxi on Commercial Road outside the Mean Fiddler Hotel. Ms H was unsure whether his name was "Ryan" or "Bryan." As no taxis were available, he walked with her to the Service Station to buy a bottle of water. Still footage of a CCTV camera at the Service Station shows the two of them purchasing a bottle of water at 3.53 am. They then walked in the direction of Ms H's parents-in-law's house, as far as The Hudson. Ms H says that they were talking along the way and stopped for a chat before he left her and went to his home. Ms H decided it was too dark to continue on her own to her parents-in-law's house so she decided to turn around and go back to the Service Station. She called Constable Smith at 4.50 am. Ms H was also able to explain the local geography which she knew well. 119 Furthermore, the applicant was given an opportunity in cross-examination to provide any evidence in respect of this contention. He was unable to provide such evidence. Although this was the subject of criticism by Mr Nagle, those investigating the complaint by Ms H did not obtain a statement from Ryan, or Bryan, presumably, having formed the view that he could not assist in respect of the complaint made by Ms H. In respect of this issue, Ms H's evidence was that, when asked by the applicant if she had ever cheated on her husband, she answered "no." 120 This criticism was not founded on any evidence at all and even if it were, it is not probative of the "practical joke" case that the applicant relies upon. It was also against a ruling I made as to relevance. 121 It is necessary to briefly deal with a further matter raised by the applicant as part of his defence and attack on Ms H's credit. The applicant contended that it was a physical impossibility for him to extract his erect penis through the fly of his trousers because he was wearing his appointments belt which holds his firearm, handcuffs and other equipment, referred to as "police appointments". This matter was only raised for the first time in a supplementary statement filed by the applicant shortly before the hearing. 122 The applicant was cross-examined about this and gave the following evidence: Q. And then finally she says broadly that you sat down exposed your erect penis to her and asked her to suck it. Is that what you say is a physical impossibilities [sic] by way of matters you referred to in your statement last Friday? A. What I say is a physical impossibility is that for me to have got my zipper down and got an erect penis out from my undies through the zipper while wearing my appointment belt and doing all the conduct she alleges, that would be impossible. Q. Are you serious? A. Yes. Q. I feel compelled to go there but you raised it. Are you saying that police officers walking around with cargo pants and appointments can't urinate? A. I said with an erect penis while doing the conduct she alleges. Q. Well, she's alleging you are completely on your own, she's not touching her, you are pulling it out and she's nearby so it's all you, right. I suggest to you if you can take your penis out to urinate you can take an erect penis out; there is no physical impossibility, it is absurd to suggest otherwise? A. I disagree, sorry. 123 In my view, it is a ludicrous and an absurd proposition to contend that it was a physical impossibility for the applicant to undo his zipper and remove his erect penis. 124 Criticism was also directed at Ms H's evidence in respect of this issue in that it lacked detail. This issue was dealt with by Ms H in her written statement of 1 January 2008 as follows: I got my dress back up and then Sam reach [sic] down and rubbed me on my crouch [sic] over my dress. Sam said, "Are you on the pill?" I said, "No." thinking it may be a deterrent for him. I pushed Sam's hand away and he sat down in front of me. Sam pointed to his crouch [sic] and I realised that somewhere along the line he has unzipped his pants and pulled his penis out. I don't know if he said "would you or do you suck." Sam was holding his erect penis through his open zipper. I said, "No." and looked away. 125 Taking all of these matters into account including the evidence of the contemporaneous complaint by Ms H to her husband and her friends, all of whom I regarded to be witnesses of truth, and to the police, I am comfortably satisfied that the applicant engaged in the conduct complained of by Ms H and relied upon by the respondent in removing him from the NSW Police Force. 126 Although Mr Nagle did not suggest that there was a deficiency in the statement of reasons by the respondent which was so great as to render the removal harsh on procedural grounds, Mr Nagle submitted that the respondent had failed to provide adequate reasons when removing the applicant and that failure should be taken into account by me as one of the reasons that the respondent's decision was erroneous. There is no substance in this contention. In my view, the respondent, after setting out a summary of the allegations made by Ms H and the responses from the applicant, together with that of Constable Currell and the statements of her friends, concluded that he did not accept the applicant's explanation. The respondent determined that the applicant had misconducted himself by engaging in conduct of a sexual nature with a civilian while on duty. The respondent concluded he was inclined to prefer Ms H's version over the applicant. 127 There was also a complaint made by Mr Nagle of the police investigation into the allegations. In my view, the investigating officers conducted a thorough investigation into the complaint made by Ms H and there was no basis established to warrant any criticism of the investigating police. 128 The task that I have undertaken in reviewing the order under s 181E of the Police Act has resulted in all persons who provided statements to the investigating officers being made available for cross-examination. I am unable to discern any procedural unfairness that would establish harshness, unjustness, or, unfairness in this matter. 129 In light of the conclusion that I have reached that the applicant engaged in misconduct, it is unnecessary for me to consider the character witnesses called on behalf of the applicant. Mr Skinner, however, pointed to what he described as some quite revealing evidence given by Sergeant James, one of the character witnesses, as providing an insight into the applicant's character. His evidence was: Q. Why you do say a good role model? A. Modern day police I find are reluctant to exercise the power they have and it takes, I would imagine, pulling a figure out of the head, five years to come to the degree of confidence that Sam possessed, not straight away but very early. As I say in that reference, he does work that others admire, and when he does work he does it precisely, accurately, and everything he provides is relevant. That is the reason I am here because in my view he is too valuable an asset to let go. I would be more than happy for him to come back, more than happy. 130 Mr Skinner submitted that this evidence which infers the applicant was prepared to exercise power may illuminate and partly explain why the applicant acted as he did on 1 January 2008. 131 Turning to grounds 2, 3 and 4, the latter two being admitted, Mr Skinner did not advance any submissions, being content to rely on the fact that the respondent had made out ground 1. In my view, these grounds, which include the transporting of Ms H in the police vehicle, the applicant and Constable Currell having left their local area command without neither informing their supervisor, nor recording the transportation of Ms H, when taken together, such conduct clearly involves improper use of police resources and an abuse of trust and confidence in the employment relationship. I regard such behaviour as misconduct sufficient to warrant a loss of confidence by the respondent in the applicant. 132 All of the material now having been reviewed, I cannot agree with the submission that the applicant has been denied procedural fairness in a way that significantly impacts upon the decision ultimately taken by the respondent and the reasons relied upon to remove the applicant from the NSW Police Force. It must be remembered that the applicant was removed from the NSW Police Force because the respondent had lost confidence in him as a result of his misconduct. 133 I have now had the opportunity to view all the material relied upon by the respondent, together with some additional material to that which was not examined by the respondent. A consideration of that material does not, it seems to me, alter the ultimate reason as to why the respondent came to lose confidence in the applicant. This matter was and always has been about the way in which the applicant misconducted himself with Ms H. 134 Mr Nagle referred to a number of documents contained in the sourced documents to which reference was not made by the respondent. Each of those documents are now in evidence in these proceedings, and in my view, do not constitute evidence the effect of which would cause a contrary conclusion on a vital point in issue, namely, the applicant's behaviour on 1 January 2008 in respect of Ms H. See Peterson J in Miller v NSW Commissioner of Police [2002] NSWIRComm 296 (at [113]). 135 As I have already concluded, I do not find any relevant procedural unfairness visited upon the applicant such that would have caused a different decision being made by the respondent in relation to the applicant's removal from the NSW Police Force. 136 I was not impressed by the tenor of the applicant's evidence before me, and my findings go directly to the question of his credibility and the difficulty of accepting the veracity of the applicant's account. The applicant raised the corroboration of his account by Constable Currell. Upon examination, Constable Currell's evidence failed to provide any corroborative support for the applicant's case. I have found his evidence to be unreliable. 137 In all the circumstances, I am of the view that the respondent's reasons for his decision to remove the applicant from the NSW Police Force were not harsh, unjust, or, unreasonable in all the circumstances. 138 In light of the seriousness of the conduct that I have found the applicant to have engaged, it can be deserving of only one consequence. So much was conceded by Mr Nagle if I reached this conclusion. It is, therefore, unnecessary to examine whether the penalty imposed upon the applicant was harsh. 139 As I have already indicated, I am of the view that the applicant's evidence before me was such as to go directly to his credibility as a witness. In my view, it also goes directly to those matters I must consider under s 181F(3) of the Police Act. In weighing up those matters, as identified in s 181F(3)(a) and (b), in my view and I find that in the circumstances and mindful of the findings that I have made, the applicant's interests are outweighed by public interest considerations. Given the view that I have reached about this matter generally and particularly those matters that go directly to the applicant's credibility, he should not return to the NSW Police Force. The public interest demands and expects that he does not return. 140 In all the circumstances, I consider the public interest in maintaining the integrity of the NSW Police Force must result in the conclusion that the removal of the applicant, taking into account all of the circumstances and evidence before me was not harsh, unreasonable, or, unjust. ORDER 1. I order that the application be dismissed. -------------------------------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.