Industrial Relations Commission of New South Wales CITATION: Robert Whyte and Commissioner of Police [2010] NSWIRComm 84 APPLICANT Robert Whyte PARTIES: RESPONDENT Commissioner of Police FILE NUMBER(S): IRC 191 and 1260 of 2009 CORAM: Sams DP POLICE ACT 1990 – application for a review of two orders of the Commissioner of Police made under s 173 of the Act – reduction in increment from Sergeant Level 7/8 to Senior Constable Level 6 – officer of 20 years standing – two orders identical – sixteen issues investigated – allegations of unauthorised COPS access for personal purposes – allegations of harassment of a member of the public – failure to declare conflict of interest – alleged untruthfulness in directed interviews – use of police resources for personal reasons without permission – wearing of police uniform to a Tribunal – incorrect or misleading entries in mandatory training records – falsification of firearms training scores – failure to enter custody records for four juvenile persons – failure to enter custody record for arrested person – alleged viewing of strip search – inconsistencies between applicant's interview and email – breakup in relationship between applicant and another officer – date which applicant knew of former partner's new relationship – applicant's explanations and reasons for conduct – whether explanations believable – Investigators appointed to investigate various issues – directed interviews with applicant – Investigators found all allegations proven on the balance of probabilities – whether Investigators fair, independent and unbiased – whether applicant denied access to relevant documents – applicant provide detailed responses to notices – allegations of procedural unfairness – whether decision maker failed to give consideration to relevant matters – whether decision maker failed to have proper regard for applicant's responses – whether decision maker misdirected himself or was misdirected by others – relevance of the use of the term 'integrity' in notices and orders – failure to follow mandatory procedures – failure to take account of Industrial Relations Commission decisions and precedents – subpoenaed documents – conflict in witness evidence – consideration of criminal investigation – decision maker concludes all allegations proven on balance of probabilities – applicant in breach of various Police Codes, Policies, Guidelines and relevant provisions of the Police Act and other Acts – criminal investigation of untruthfulness not pursued – orders made to reduce applicant's rank and increment – whether orders 'harsh, unreasonable or unjust' or 'beyond power' – principles of review proceedings considered – applicant seeks revocation of orders – competing interests of applicant and public interest – character references and long period of excellent service. CATCHWORDS: APPLICATION FOR REVIEW OF AN ORDER OF COMMISSIONER OF POLICE – applicant's explanations and excuses for conduct and behaviour highly unlikely, implausible and unbelievable – preference for respondent's witnesses' evidence – applicant knew of the new relationship prior to first COPS access – unauthorised COPS access for personal interests – applicant unable to differentiate between his personal interests and those of the Police Force – inappropriate visit to workplace – further incidents not coincidental – applicant may have been upset and distressed by his relationship breakup – applicant failed to report a conflict of interest – applicant's support witnesses unhelpful and evidence doubtful – findings result in further conclusion of untruthfulness – unauthorised use of police resources – explanations for training records inaccuracies not accepted – 'missing' firearms score book excuse not accepted – applicant should have ensured custody records were created for four young persons – applicant should have ensured custody record for Ms Scowen's arrest – applicant did not view strip search – allegation not sustained – other allegations of unsatisfactory performance sustained – failure to demonstrate good example – inconsistencies between interview and email established – all issues, save for one, found to be sustained on the balance of probabilities – no procedural unfairness issues of any significance – investigations fair, unbiased and exhaustive – decision maker acted fairly, reasonably and without bias – decision maker had considered all relevant matters – applicant given every opportunity to respond to allegations – no issues of procedural unfairness constituting an irretrievable prejudice or an irredeemable flaw in the process – consideration of applicant's personal and economic circumstances and period of service – public interest outweighs applicant's interests – orders not 'harsh, unreasonable or unjust' nor 'beyond power' – orders upheld – application for review dismissed. Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Industrial Relations Act 1996 LEGISLATION CITED: Law Enforcement (Powers and Responsibilities) Act 2002 Police Act 1990 Police Regulation 2008 Young Offenders Act 1997 Ainsworth v Ainsworth [2002] NSWCA 130 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Allchin v Commissioner of Police (No 2) (2007)168 IR 170 Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bankstown City Council v Paris (2000) 100 IR 363 Bigg v New South Wales Police Service (1998) 80 IR 434 Briginshaw v Briginshaw (1938) 60 CLR 336 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Commissioner of Police and Wayne Edward Collins (2008) 180 IR 191 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198 Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 Currie v Dempsey [1967] 2 NSWR 532 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Wd 462 DPP v Carr (2002) 127 A Crim R 151; NSWSC 194 DV v Community Services Commission [2002] NSWADT 246 Four Sons Pty Limited v Sakshai Limsiripothong (2000) 98 IR 1 Hessenberger v Commissioner of Police [2010] NSWIRComm 24 Hosemans v Commissioner of Police(No 2) (2004) 138 IR 159 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Limited (2003) 128 IR 37 Laird v Commissioner of Police [2001] NSWIRComm 253 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Mahoney v Commissioner of Police [2003] NSWIRComm 67 Mason v Electricity Commission of New South Wales t/as Pacific Power (1995) 62 IR 436 McCabe v NSW Police Service (unreported, Cahill J, Vice President, Hill J and Connor C, Matter No IRC3112 of 1994, 3 July 1996) CASES CITED: Miller v Commissioner of Police [2002] NSWIRComm 296 Minister for Immigration and Citizenship v Szizo (2009) 259 ALR 405 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 Morgan and Commissioner of Police [2009] NSWIRComm 184 Morgan and Commissioner of Police [2010] NSWIRComm 67 Muin v Refugee Review Tribunal (2002) 190 ALR 601 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 New South Wales Attorney-General's Department v Miller (2007) 160 IR 185 Newton v New South Wales Police Service (1999) 87 IR 66 Oswald v New South Wales Police Service (1999) 90 IR 42 Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Plaintiff S157/2002 v Commonwealth of Australia (2003) 221 CLR 476 Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51 Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Reid-Frost and Commissioner of Police [2009] NSWIRComm 43 SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police [2009] NSWIRComm 31 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Varmedja v Varmedja [2008] NSWCA 177 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Weal v Bathurst City Council (2000) 111 LGERA 181 Wells v Commissioner of Police (2000) 100 IR 106 Wheeler v Phillip Morris Ltd (1989) 32 IR 323 X v Commissioner, Community Services Commission [1999] NSWADT 26 X v Commissioner, Community Services Commission [2000] NSWADTAP 2 HEARING DATES: 9 November 2009; 10 November 2009; 11 November 2009; 12 November 2009 and 30 November 2009; Written Submissions on 9 December 2009 DATE OF JUDGMENT: 30 June 2010 APPLICANT Mr B Docking of Counsel Solicitor: Mr M Treharne Walter Madden Jenkins Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr A Searle of Counsel Solicitor: Ms J Thrum Deacons Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 30 June, 2010 Matter No IRC 191 of 2009 Robert Whyte and Commissioner of Police Application by Robert Whyte under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police Matter No IRC 1260 of 2009 Robert Whyte and Commissioner of Police Application by Robert Whyte under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police DECISION [2010] NSWIRComm 84 TABLE OF CONTENTS Paragraph BACKGROUND............................................................................................................1 NEW SOUTH WALES POLICE FORCE POLICIES AND PROCEDURES AND RELEVANT LEGISLATION............................................................................8 RELEVANT PROVISIONS OF THE POLICE ACT 1990......................................9 THE EVIDENCE........................................................................................................27 Personal and Police History...................................................................................30 Issue 1 – Inquiries in relation to Mr Daniel Williamson on 5 December 2006, including inappropriate COPS access................................34 Issue 2 – COPS access in relation to Mr Williamson on 6 December 2006........................................................................................................42 Issue 3 – Visit to Mr Williamson's workplace on 6 December 2006...............45 Issue 4 – Incident on 10 December 2006 at the Children's Triathlon...........51 Issue 5 – Incident on 11 December 2006 at Shades Cafe..................................55 Issue 6 – Alleged failure to declare his knowledge of a relationship between Constable Nerida Laurie and Mr Williamson....................................58 Issue 7 – Alleged untruthfulness during directed interviews on 28 February 2007 and 13 March 2007.........................................................................78 Issue 8 – Use of identifiable police envelopes in May 2007 for private purposes.......................................................................................................81 Issue 9 – Wearing of police uniform at the Consumer Trader and Tenancy Tribunal (CTTT) in May 2007.................................................................................83 Issue 10 – Wearing of police uniform at Heather Street on 20 May 2007.....85 Issue 11 – Incorrect or misleading entries in the Mandatory Training Records......................................................................................................88 Issue 12 – Falsification of firearms training scores..........................................92 Issue 13 – Failure to enter custody records for four young persons............99 Issue 14 – Failure to enter custody record for Ms Marnie Scowen.............104 Issue 15 – Alleged viewing of strip search........................................................109 Issue 16 – Inconsistencies between interview and email..............................112 Other evidence of the applicant..........................................................................114 Applicant's Criticism of the Investigations......................................................116 Force's Evidence.....................................................................................................120 Supt Fehon...............................................................................................................120 In reply......................................................................................................................149 Insp Williams............................................................................................................150 In reply......................................................................................................................171 Insp Heap..................................................................................................................178 In reply......................................................................................................................196 Const Laurie.............................................................................................................199 In reply......................................................................................................................209 Daniel Williamson...................................................................................................220 In reply......................................................................................................................234 Sgt Williams..............................................................................................................238 In reply......................................................................................................................247 Sgt Schultz................................................................................................................251 Sgt Neville.................................................................................................................252 In reply......................................................................................................................259 Acting Insp Fehon...................................................................................................264 SUBMISSIONS.........................................................................................................272 For the applicant....................................................................................................272 For the Force............................................................................................................301 In reply......................................................................................................................332 CONSIDERATION...................................................................................................333 Framework of decision..........................................................................................333 Issue 1 – Inquiries in relation to Mr Daniel Williamson on 5 December 2006, including inappropriate COPS access.....................................................335 Issues 1 and 2 – COPS access in relation to Mr Williamson on 6 December 2006......................................................................................................339 Issue 3 – Visit to Mr Williamson's workplace on 6 December 2006.............348 Issue 4 – Incident on 10 December 2006 at the Children's Triathlon.........351 Issue 5 – Incident on 11 December 2006 at Shades Cafe................................353 Issue 6 – Alleged failure to declare his knowledge of a relationship between Constable Nerida Laurie and Mr Williamson..................................356 Issue 7 – Alleged untruthfulness during directed interviews on 28 February 2007 and 13 March 2007.................................................................368 Issue 8 – Use of identifiable police envelopes in May 2007 for private purposes.....................................................................................................370 Issue 9 – Wearing of police uniform at the Consumer Trader and Tenancy Tribunal (CTTT) in May 2007...............................................................................372 Issue 10 – Wearing of police uniform at Heather Street on 20 May 2007...............................................................................................................373 Issue 11 – Incorrect or misleading entries in the Mandatory Training Records......................................................................................................................374 Issue 12 – Falsification of firearms training scores........................................375 Issue 13 – Failure to enter custody records for four young persons..........378 Issue 14 – Failure to enter custody record for Ms Marnie Scowen.............381 Issue 15 – Alleged viewing of strip search........................................................386 Issue 16 – Inconsistencies between interview and email..............................388 Allegations of Procedural Unfairness................................................................391 Other criticisms made by the applicant............................................................409 Applicant's criticism of the Evidence................................................................412 Balancing the applicant's interests against the public interest..................418 Conclusions and Findings.....................................................................................421 ORDERS....................................................................................................................422 BACKGROUND 1 Sergeant Robert Whyte ('the applicant') joined the New South Wales Police Force ('the Force') on 28 April 1989. He is currently stationed at Port Macquarie Police Station at the rank of Team Leader, Sergeant, Level 7/8. On 23 September 2008, the applicant was served with a notice of a proposed order under s 173(5) of the Police Act 1990 ('the Act') signed by Superintendent Paul Fehon ('Supt Fehon'), Mid North Coast Local Area Commander. The Notice was said to have been issued 'having regard to your conduct and integrity' in respect to 12 issues or allegations. These were: Issue 1: Inquiries in relation to Mr Daniel Williamson on 5 December 2006, including inappropriate COPS access Issue 2: COPS access in relation to Mr Williamson on 6 December 2006 Issue 3: Visit to Mr Williamson's workplace on 6 December 2006 Issue 4: Incident on 10 December 2006 at the Children's Triathlon Issue 5: Incident on 11 December 2006 at Shades Cafe Issue 6: Alleged failure to declare his knowledge of a relationship between Constable Nerida Laurie and Mr Williamson Issue 7: Alleged untruthfulness during directed interviews on 28 February 2007 and 13 March 2007 Issue 8: Use of identifiable police envelopes in May 2007 for private purposes Issue 9: Wearing of police uniform at the Consumer Trader and Tenancy Tribunal (CTTT) in May 2007 Issue 10: Wearing of police uniform at Heather Street on 20 May 2007 Issue 11: Incorrect or misleading entries in the Mandatory Training Records Issue 12: Falsification of firearms training scores 2 The Issues 1-7 were said to have arisen following the breakdown in a relationship between the applicant and Constable Nerida Laurie ('Const Laurie') and her commencement of a relationship with Mr Daniel Williamson. Each of these allegations was the subject of extensive examination during the course of the proceedings and I shall return to the details of the evidence shortly. 3 On 19 December 2008, the applicant forwarded a detailed 55 page response to the allegations. On 4 February 2009, the applicant was served with a reviewable order under s 173(2) of the Act, signed by Supt Fehon, on delegation from the Commissioner of Police. It is apparent that the Superintendent found all of the allegations against the applicant to be proven when he said at page 10: I have carefully taken into account all the material set out in your Response. In particular, I have had regard to your years of service with the NSW Police Force. I note that in your Response, you have asked to be provided with all source documents or materials in relation to this matter and all relevant CIS files or other Internal Affairs documents, prior to me considering your Response and making any order. You have claimed that failing to do so would deny you procedural fairness. I strenuously refute this claim. In the Notice I clearly explained that you had 21 days from the date of service of your notice of intention to respond to forward any written submission in response to me. You have provided your Response to me and I have taken it in to (sic) account in determining that a reviewable order under subsection 173(2) of the Police Act 1990, should now be made against you. I also note and strenuously refute the allegation in your Response that the investigation into your conduct and integrity was affected by bias or that "evidence has been omitted, invented, misinterpreted and manipulated to achieve the outcome desired" during the investigation. In all the circumstances, I am satisfied that the proposed order is in the best interests of the NSW Police Force, as well as being an appropriate response to your conduct and lack of integrity. Order In all the circumstances, I have formed the view that your conduct and integrity have been shown to be unsatisfactory and improper and that you should be subject to the action proposed in the Notice. I therefore order the following action: · That you be reduced in increment to Senior Constable Level 6. 4 On 18 February 2009, the applicant initiated proceedings in the Industrial Relations Commission, pursuant to s 174 of the Act, for a review of the Commissioner's order. The matter was listed for conciliation (pursuant to s 176) on 27 March 2009, and was not able to be resolved. Dates for hearing were set and directions were issued. 5 However, on 22 April 2009, the applicant was served with a second notice of a proposed order, under s 173(5) of the Act, signed by Supt Fehon; this time concerning four additional allegations in respect to two incidents. The first concerned the applicant's alleged failure to follow safe custody procedures and create custody records for four young persons on 19 August 2008. The second concerned the applicant's alleged failure to follow safe custody procedures or create a custody record for Ms Marnie Scowen on 21 August 2008, and further, that the applicant viewed the performance of a strip search of Ms Scowen in breach of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and various Police policies and procedures. The fourth allegation related to his alleged untruthfulness, or less than frankness, in his directed interviews about the matters. These four issues hereinafter will be referred to as Issues 13, 14, 15 and 16 as follows: Issue 13: Failure to enter custody records for four young persons Issue 14: Failure to enter custody record for Ms Marnie Scowen Issue 15: Alleged viewing of strip search Issue 16: Inconsistencies between interview and email 6 On 15 June 2009, the applicant forwarded a 29 page response to the second notice. On 13 August 2009, the applicant was served with a second reviewable order under s 173(2) of the Act, signed by Supt Fehon on delegation from the Commissioner of Police. The Superintendent found the four allegations proven and determined that the same order, as previously made by him on 4 February 2009, should be made. 7 On 28 August 2009, both matters were again listed for conciliation and joined on that date. No settlement could be reached and a new timetable and dates for hearing were scheduled for November 2009, in Port Macquarie. During the hearing, the Commission viewed a number of locations mentioned in the evidence, including outside the Police Station, Shades Café and Port Macquarie's Main Street. NEW SOUTH WALES POLICE FORCE POLICIES AND PROCEDURES AND RELEVANT LEGISLATION 8 In respect to the 16 Issues, it was said that the applicant was in breach of one or more of the Police Force's policies, codes and/or legislation in the following respects: (i) The New South Wales Police Force Code of Conduct and Ethics: 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. Compliance with the Oath of Office and Statement of Values helps ensure you achieve this. The Statement of Values describes the values that apply to all employees. These values provide guidance for any circumstance, regardless of specific policies that may also apply. The Oath of Office (clause 8 Police Regulation 2000) provides general guidance on appropriate conduct for all employees. For sworn employees it represents a promise to the community about how you will exercise police powers. 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 know and comply with all policies, procedures and guidelines that relate to their duties. … 4 An employee of NSW Police must treat everyone with respect, courtesy and fairness. 7 An employee of NSW Police must take reasonable steps to avoid conflicts of interest, report those that cannot be avoided and co-operate in their management. … You are responsible for identifying and avoiding conflicts of interest that relate to your employment with NSW Police. These conflicts may be actual, perceived or potential. You must report in writing any conflict of interest that cannot be avoided and co-operate in managing it appropriately. 8 An employee of NSW Police must only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police policy. … Employees must only access NSW Police information for purposes that are directly relevant to their duties. 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 and confidential information. 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 and information, for personal gain or the gain of any other person or organisation. (ii) The New South Wales Police Force Code of Best Practice for Information Management: 4.6 How should I collect information? … Accurately and completely You are to exercise care to ensure that all personal information which is collected (for whatever purpose) is relevant to the matter receiving official attention, is accurate in content, reflects the current situation and is complete… The operational effectiveness of the NSWP depends on information being recorded accurately and updated whenever possible to reflect existing circumstances. You should ensure that the integrity of information is not compromised by unauthorised additions, changes or deletions. If you are creating or adding information to documentary or computerised records, ensure that the information is accurate… 6.5 What can I access information for? For official police duties According to the Police Service Notice PSN 99/55, access to stored information is restricted to a "Need to Know" basis and officers and unsworn employees may only make an access for a purpose connected with their official duties. You are accountable for accesses made under your password and must prove that your access was lawful, or else you will face penalties… The practice of perusing information to gather intelligence and crime trends in connection with your duties is acceptable, however, 'drilling down' to obtain specific information should only be carried out for specific operational reasons, or on a 'Need to Know' basis. You may not drill down for general perusal or because of idle curiosity. You may not search and find information for personal reasons or to assist a colleague. 6.6 How can I safeguard against inadvertent access? … As the onus is on you to prove that your access was lawful, you should always document your access to confidential fields and the reasons in your notebook or diary. Accesses to confidential fields are logged and subjected to audits. If you are audited, you must have a lawful reason for your access or you will face sanctions... (iii) The New South Wales Police Force Handbook: Notebooks "As a minimum, record the matters listed below, and where possible, have the affected person sign it… Record: ...Access to the Service's compute system (not able to be justified by other means)..." (iv) The New South Wales Police Force Computerised Operational Policing System: "Under no circumstances is the information provided by COPS to be used for a purpose other than official police business. In the interest of public privacy and better policing, observe the following guidelines: … Only access information in the normal course of your duty (do not access information for gratuitous or personal reasons)." (v) The New South Wales Police Force Conflict of Interest Policy and Guidelines: Conflicts of Interest A conflict of interest occurs when a NSW Police employee (sworn or unsworn) is in a position to be influenced, or appear to be influenced, by personal interests when doing their job. A conflict of interest can involve avoiding personal disadvantage as well as gaining a personal advantage. That is, a conflict of interest may allow you to avoid a loss, expense, or something else that has a negative impact on your personal of private interests. … Being seen to behave ethically Regardless of how you act, the perceptions of others impacts upon conflicts of interest. As such, how NSW Police and you manage conflicts of interest is vital. Well resolved conflicts of interests will protect your integrity being questioned. You must not only behave ethically but be seen to behave ethically. … Reporting conflicts of interest You must report conflicts of interest: · In writing · Promptly · In detail · To your Commander, manager or supervisor … Prompt Reporting You must always report conflicts of interest in writing as soon as practicable… (vi) Section 7 of the Police Act 1990: Each member of the NSW Police Force is to act in a manner which: … (c) preserves the rights and freedoms of individuals, (vii) Sections 33, 110 and 131 of the Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPRA'): s 33 (1) A police officer or other person who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following: … (b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched… s 110 … (2) A reference in this Part [9] to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if: (a) the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or (b) the police officer would arrest the person if the person attempted to leave, or (c) the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so… s 131 (1) The custody manager for a detained person must open a custody record in the form prescribed by the regulations for the person. … (4) The recording of any matters referred to in this section must be made contemporaneously with the matter recorded in so far as it is practicable to do so. (viii) The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence): All people brought into a police station in custody must be entered into the custody system on COPS. If the person is being detained under Part 9 of LEPRA, entries must be made by the custody manager. If the person is not being detained under Part 9 of LEPRA this may be done by the arresting/escorting police, custody assistant or custody manager… While parts of these guidelines address the requirements of Part 9 of LEPRA those requirements should also be applied, where practical, to anyone else being kept in police custody. For example, when a child is brought to a police station the child's parents, guardian or support person should be notified that the child is at the station and for what purpose. ACCOUNTABILITY … Custody manager You are accountable for ensuring the rights of people in custody are protected (particularly those detained under Part 9 of LEPRA), their health and safety is maintained and proper records are kept… USUAL PROCEDURE Custody manager Determine whether the person falls within Part 9 of LEPRA. If appropriate, hand those who do not fall within Part 9 over to the custody assistant to process and to start a custody record… For those who fall within Part 9 start a custody record and: · Read and hand to them the Caution and summary of Part 9 form and tell them their rights can be exercised at any time while in custody · Tell them, as soon as possible, why they have been detained (before any investigation takes place) · Find out if the person has been arrested, or released from custody, within the last 48 hours and determine whether the investigation period is affected · Determine if the person falls into the category of a vulnerable person and take appropriate action regarding their vulnerability · Determine if the person requires and interpreter and arrange one where necessary · Ask them if they want legal advice (at their own cost) before being questioned and attempt to obtain this if required · Conduct a thorough and professional check of the treatment they received by police before being placed into your custody, but do not ask questions about the offence · Assess the validity of the arrest … CUSTODY RECORDS Custody manager Start a separate custody record as soon as possible for each person who is under arrest at a police station… RESTRICTIONS ON CUSTODY MANAGER FUNCTIONS Where the person being detained falls within Part 9 of LEPRA the following provisions apply to custody manager functions. The functions of the custody manger are not to be performed by a police officer who at the time is involved in investigating the offence for which the person is in custody (except as a last resort). Where someone is taken to a designated police station… at which a custody manager is not readily available, the functions of a custody manager are to be performed by a sergeant or above or an officer for the time being in charge of the station. If the person is taken to a non-designated station a sergeant or above or the officer in charge will act as custody manager. If none of the above are available any other officer may act as custody manager. As a last resort the arresting or investigating officer may act as custody manager. When the arresting or investigating officer is to perform custody manager functions, the officer will, as soon as practical and before any interview, ask a duty officer at a designated police station for permission to do so. The request and reply will be confirmed in writing (by fax if required). … Annexure A – Rules for conducting Personal Searches In the case of a strip search, the custody manager will record the reasons and the result on the custody record. The CIN's Frequently Asked Questions document relevantly states: Question 6: If the offence requires further investigation what happens if you do take them back to a police station and then issue a CIN? Answer: A CIN should be issued at the scene as it is an on the spot fine, but if you can justify why you did not do that, then you are still complying with the guidelines. Remember that the suspect has to be taken before the custody manager if taken back to the station, to comply with LEPRA legislation. (ix) Statement of Values: "Excellence Having the highest professional standards and integrity … Accountability Acknowledging ownership and being answerable for your actions" RELEVANT PROVISIONS OF THE POLICE ACT 1990 9 These applications are brought, and will be determined by the Industrial Relations Commission of New South Wales, pursuant to Division 1A of Part 9 of the Police Act 1990. There is no issue as to the jurisdiction of the Commission to review the two orders made under s 173(2) of the Act by Supt Fehon on 4 February 2009 and 13 August 2009. Both orders identified the reviewable action as 'that you be reduced in increment to Senior Constable Level 6' (from Sergeant Level 7/8). As the orders of the reviewable action are identical, and will have identical effect on the applicant, there is no need to consider the effect of the orders separately. I note that the Force submitted that the making of the same order for a second time merely strengthened its argument that the original sanction against the applicant was more than fair and reasonable, given the findings of the Investigator and the deliberations and orders of Supt Fehon on four more issues of concern to the original 12 issues. 10 Section 174 of the Act deals with the review by the Commission and identifies the two tests the Commission may apply in the proceedings; namely, whether 'the order is beyond power or is harsh, unreasonable or unjust'. It was the applicant's case that both grounds would be established such as to justify a basis for the reviewable orders to be revoked by the Commission, under s 177 of the Act. 11 When conducting a review under s 174 of the Act, the Commission is to adopt the approach of undertaking a fresh and independent review of the Commissioner's decision, based on the material before the Commissioner and any new evidence admitted. So much so is obvious from the conclusions in Hosemans v Commmissioner of Police (No 2) (2004) 138 IR 159, and which has been applied in both s 174 review and s 181E review cases. 12 Section 175 of the Act deals with the conduct of the review proceedings and is expressed as follows: 175 Proceedings on a review (1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made. (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173). 13 Two important considerations arise under s 175; firstly, that the applicant bares the onus of establishing that the order was either 'beyond power' and/or is 'harsh, unreasonable or unjust', and secondly, in determining the application, the Commission has a mandatory obligation to have regard to the interests of the applicant and the public interest. 14 I do not consider that there can be any doubt that the onus of proof rests with the applicant in this case. Subsection (2) of s 175 could not be more explicit. While it might be said that the findings made by Supt Fehon on each of the 16 issues of concern constitute misconduct, when each issue is viewed in isolation, the findings on each issue could not realistically be said to be findings of gross or wilful misconduct of the kind I considered in Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 ('Probst'). Thus, I think the description of the order being an appropriate response 'to your conduct and integrity have been shown to be unsatisfactory and improper' is a particularly apt one, assuming, of course, I find on review, that the findings of the Investigators and Supt Fehon were open, on the balance of probabilities. I note that findings of gross or wilful misconduct would usually result in a Commissioner's loss of confidence removal order under s 181D of the Act. 15 As I just mentioned, the standard or proof in these proceedings is the civil standard on the balance of probabilities: See Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. This standard has express recognition in s 140 of the Evidence Act 1995, which states: 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. 16 I note also that s 178 deals with the rules of evidence in the following way: (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence, but may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 17 Returning to the second significant consideration under s 175(4) – the balancing of the applicant's interests with the public interest – I note that the expression is in like terms to s 181F(3) of the Act. That section was recently considered by the New South Wales Court of Appeal in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198. Spigelman CJ, with whom Macfarlan and Young JA agreed, said at paras [78] to [81]: 78 In any event, in each of the respects on which the applicant relies, it is, in my opinion, clear that both Haylen J and the Full Bench gave consideration to the matters which s 181F required the Commission to take into account. 79 It is sufficient to quote the following extracts from the judgment of Haylen J. With respect to the requirements of Div 1C his Honour said at [80]: "[T]here could be justification for the Commissioner losing confidence in an officer but such a penalty as removal may be, on proper assessment, harsh or unjust in the circumstances. This approach involves a balancing exercise, requiring consideration be given to the interests of the applicant and the public interest, including the integrity of the New South Wales Police and the fact that the Commissioner had made an order for removal." Under the subheading "The Commissioner's Reasons", his Honour made several references to the issue of integrity (for example, at [85] (a), (b) and (c)). Under the subheading "The Applicant's Case", his Honour made findings of fact that the respondent was "less than frank during the course of the investigation" and made reference to inconsistencies between answers given during the investigation and answers given in the Commission (at [87]). Under the subheading "Commissioner's Case in Answer", his Honour referred to submissions made on behalf of the applicant and concluded at [122]: "Mr Sewell's lack of candour is also an important element in assessing the seriousness of his conduct". His Honour then proceeded under a subheading entitled "Balancing the Considerations on Review" (at [124]-[132]). His Honour referred to many of the matters said by the applicant not to have been taken into account. For example, his Honour reiterated his finding that Mr Sewell "was less than frank in his responses" (at [127]). His Honour then made express reference to the elements of the statutory scheme when he said: "[128] … In this balancing exercise, the Police Act , by s 181F(3) requires the Commission to have regard to the interests of the applicant and also to have regard to the public interests, including the interests of maintaining the integrity of New South Wales Police and the fact that the Commissioner for Police had made an order under s 181D(1). [129] There can be no issue that it is in the public interest to maintain the integrity of the New South Wales Police Service. Actions taken by police officers on or off duty may be of such seriousness that it compromises the integrity of the Police Service and demands the highest penalty, dismissal. The Commissioner, having regard to the nature of the allegations and the breaches of police policy, determined that the penalty of dismissal was appropriate and that he could not condone Mr Sewell's actions. These are significant matters and weigh heavily with the Commission on review. The Commission on review is also to have regard to the interests of the applicant." His Honour went on to balance the conflicting considerations and came to the conclusion that the removal was "harsh and unfair" and the respondent "should be given a second chance" (at [131]). 80 I can see no relevant oversight in this analysis. The matters said not to have been given appropriate weight are all referred to. Indeed, as his Honour said at [129] as quoted, they "weigh heavily with the Commission on review". 81 The Full Bench also clearly referred to the issues now sought to be relied upon. Their Honours said at [14]: "A further matter which requires comment concerns the issue of integrity raised by the appellant during oral submissions in the context of whether Haylen J fell into error by not taking the issue into account (or sufficiently taking the issue into account) in the exercise of discretion when determining relief. We think it is important to emphasise the relevance of the public interest to this exercise of discretion. A necessary component of the public interest, in the present circumstances, was the respondent's integrity, which the appellant had linked to what has been described as the respondent's, 'lack of candour' and, his, 'less than frank' responses, when giving evidence." 18 The exercise of taking account of the applicant's interests and the public interest has been described as a balance of competing interests in which one factor should not be afforded greater weight than any other. In Commissioner of Police and Wayne Edward Collins (2008) 180 IR 191, the Full Bench said at paras [57] and [58]: 57 In contending that Kavanagh J gave inadequate consideration of the public interest the appellant relied on the following passage from the Full Bench decision in Commissioner of Police v Brennan [2008] NSWIRComm 52: [61] Punishment, being one of the purposes of sentencing, is not the objective in removing a police officer and it is not the Commission's task in assessing whether the removal was harsh, for instance, to assess whether or not removal was the appropriate punishment . What his Honour was required to do pursuant to s 181F(3) was to 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)). In other words, the Commission is required to weigh up the competing interests of both an applicant and the public interest, which includes maintaining the integrity of the Police Force. In doing so, the Commission is required to consider, amongst other things, whether the conduct of the police officer that led to his or her removal was such that it so undermined the Force's integrity as to outweigh the applicant's interests. An assessment of the level of culpability of the officer's conduct based on the sentence for a criminal conviction is not the correct focus of the inquiry under s 181F(3) and may lead the trial judge into error which, in our opinion, is what occurred here. 58 Whilst we agree generally with the opinion expressed by the Full Bench in the passage extracted above, we would wish to emphasise that the observations should be viewed in a proper context, as explained in Van Huisstede v Commissioner of Police (2000) 98 IR 57, where observations as to the content and purpose of s 181F(3) of the Act, with which we agree, were developed as follows ([216] to [220]): [216] The intent of the sub-section is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. [217] However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. [218] The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. [219] In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. [220] In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner). 19 The onus on the applicant to establish a case that the orders of Supt Fehon were 'beyond power' and/or were 'harsh, unreasonable or unjust' is a mixed question of fact and law: See Allchin v Commissioner of Police (No 2) (2007) 168 IR 170. It is now well accepted (see Newton v New South Wales Police Service (1999) 87 IR 66) that the words 'harsh, unreasonable or unjust' have the same meaning in s 175(2) as they have in s 181E review proceedings, which, in turn, have the same meaning as they have in s 84 of the Industrial Relations Act 1996. Moreover, each of these words have their own discrete meaning as was explained in Byrne v Australian Airlines Limited (1995) 185 CLR 410: Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. See also Laird v Commissioner of Police [2001] NSWIRComm 253 and Commissioner of Police and Wayne Edward Collins . 20 In addition, the Commission should ensure that each of the words are given express consideration in the Commission's findings in a particular case: See Bankstown City Council v Paris (1999) 93 IR 209. 21 These proceedings, like many others previously considered by the Commission under s 174 and s 181E of the Act, have been heavily influenced by claims of procedural unfairness, having regard for the mandatory steps the Commissioner of Police (or his/her delegate) is required to take before making an order of reviewable action. These steps are found at subclauses (5), (6) and (7) of s 173, and are as follows: (5) Before making an order for reviewable action, the Commissioner: (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c) must take into consideration any written submissions received from the police officer: (i) during the period of 7 days referred to in paragraph (b), or (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7) The written notice must contain the terms of the order and must indicate: (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and (c) the Commissioner's reasons for making the order. 22 It is now well accepted that the importance of the procedural steps under s 181D(3) and (4) of the Act have the same significance as the procedural steps required to be undertaken by the Commissioner under s 173(5), (6) and (7): See Little v Commissioner of Police (No 2) (2002) 112 IR 212 and Van Huisstede v Commissioner of Police (2000) 98 IR 57. Accordingly, it is relevant that the majority in a recent Full Bench decision in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 ('Reid-Frost'), said this at par [11]: 11 It needs to be steadily borne in mind, however, the particular statutory context in which such observations as to procedural matters have been made by the Commission in considering the application for review under s 181E. These are as follows: (a) The challenge to the removal of a police officer based upon procedural grounds will not be finally resolved by a preliminary adjudication based upon those factors. For example, the Commission is not entitled to hear and determine "to finality the challenge to the removal based only on the matters referred to in s 181F(1)(a)": Newton (No 2) at 75. Rather, the role of the Commission is to "conduct a review of the merits of the decision of the Commissioner, to consider the whole of the circumstances of the matter in the way determined by s 181F and apply the statutory criteria in that situation": Newton (No 2) at 79. We agree with the Full Bench in Hosemans (No 2) (at [134]) that the review of a decision to remove under s 181D is to be a "fresh and independent review"; (b) The determination of an application made under s 181E requires a finding as to whether the removal itself was harsh, unreasonable or unjust not whether a particular procedure may be described as such, even though the adoption of an unfair procedure, as we may have observed, significantly contributed to that ultimate determination (see, for example, Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ); (c) The provisions of Pt 6 of Ch 2 of the Industrial Relations Act (1996) ('IR Act') have application, albeit modified, to reviews under Pt 9 Div 1C of the Act: Hosemans (No 2) at [101]. As was described by the Full Bench in Little (No 2) at [65], s 181G has "the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Pt 6 of Ch 2 of the Industrial Relations Act in such a manner as to import the provisions of Pt 6 to the review proceedings..."; (d) The review proceeding will, thereby, be undertaken procedurally in a manner consistent with unfair dismissal proceedings ( Hosemans (No 2) at [104]) and adopt the jurisprudence of the Commission with respect to unfair dismissal proceedings ( Little (No 2) at [65]), except where the procedure and principles are expressly excluded by the Act; (e) These considerations need to be married with our earlier observation regarding the significance of procedural failures in review proceedings. First, the procedural issues will be one element of the resolution of the merits of the review, which may take on a greater or lesser significance depending upon the gravity of the failure and its affect on the opportunity for the police officer to receive a fair hearing. This is consistent with the approach in unfair dismissal matters. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 388 (' Antonakopoulos') , the Full Bench imported natural justice requirements (to the extent applicable) in to unfair dismissal matters; (f) In a little quoted passage from the decision of the Full Bench in Bigg (at [45]), it was made clear that questions of procedure including a consideration of the 'statutory mechanism' (then s 181B of the Police Service Act ) would be open for review (in proceedings brought under then s 246 of the Industrial Relations Act 1991) as an "exemplar of the industrial merit of the decision, as well as the general industrial merits of the decision" of the Commissioner. Similarly, as was stated in Starr v Commissioner of Police [2001] NSWIRComm 226 at 140 ('Starr') , "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case"; (g) There may be cases where the assessment of the merits of an application may result in a procedural failure, per se, rendering the removal harsh, unreasonable or unjust but, as we will later discuss, proceedings under Div 1C of Part 9 of the Act have, thus far, resulted in only limited examples of such matters, that is procedural factors alone resulting in a determination that the removal is harsh, unreasonable and unjust. Those cases have revealed very serious procedural failures (see our later discussion of Bigg and Van Huisstede following); (h) A similar position applies in unfair dismissal matters. In Antonakopoulos (at 388), the Full Bench accepted that a finding of unfairness may sometimes result from procedural failures alone, but those cases were of such character as to involve failures of some real gravity such as where the procedural unfairness caused a "substantial and irrevocable prejudice to the employee" or where a dismissal is based upon unfair procedures which have caused the employer to ignore or fail to receive an innocent explanation ( Antonakopoulos at 389); (i) Two previous cases have resolved (or potentially resolved) applications for review of the removal of a police officer on procedural grounds alone (we note that a similar approach was also taken with respect to an application brought by a probationary constable under s 84 of the IR Act: Owens v NSW Police Service (1998) 87 IR 1); (j) In Bigg, the Full Bench resolved the matter upon the basis of procedural defects of a very significant character: the Acting Commissioner of Police had failed to have regard to relevant material, namely, the evidence of the applicant before the Police Royal Commission. This was particularly significant given that the Commissioner was required, under the statutory regime applying at that time, to direct his attention to material before that Royal Commission, and, hence, the evidence omitted from consideration was critical to the applicant making out his case; (k) In Van Huisstede , the Commission found (at [234]) that there was "a sufficient basis to determine that the applicant's removal was harsh, unreasonable and unjust" based upon "procedural deficiencies" but that having regard to, inter alia , "the Full Bench decision in Newton (No 2) (at 79)", it was "appropriate to also consider the substance of the decision to remove the applicant". (The reference to Newton (No 2) in this context was a reference to that part of that Full Bench decision which stressed that s 181F(1) dedicated that the Commission was to conduct a merit review of a s 181E application and consider the whole of the circumstances of that matter.) Further, the Commission was concerned that the Commissioner had made "explicit findings as to the veracity of the allegations against the applicant without having before him details of the allegations made and without regard of other evidence which would have thrown light upon the nature of the allegations" (at [233]). The Commissioner reached his decision in circumstances where "the evidence before him would have caused considerable disquiet in the mind of a reasonable observer". It might also be noted that the Commissioner did not present a merit case, as such, in the proceedings; (l) It follows that procedural failures will not of themselves necessarily (or often) result in an affirmative finding for an applicant under s 181E of the application: Bigg at 460, Starr at 140 , even though procedural failures may attract significant attention in review proceedings (of the kind earlier described), particularly by reference to the decision in Little (No 2); (m) Our final observation, in this respect, is that the review process is not in the nature of an administrative law review. The significance of procedural failures is to be weighed as part of the overall assessment of the application brought under s 181E(1): Hosemans (No 2) at 107. Principles of administrative law may well inform, however, considerations as to whether the removal was harsh, unreasonable or unjust, as they direct attention to whether a step taken or omitted by the Commissioner has resulted in an unfairness which attracts one of those epithets. For example, the adoption of the principles from the judgment of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 in Bigg was for the purposes of guiding the resolution of the merit review including the procedural issues involved therein. 23 The majority went on to discuss three main areas of complaint as to procedural unfairness, which, I might add, are not dissimilar to the complaints made by the applicant in this case. These were: a) whether the information in the notice was sufficient for the applicant to provide a comprehensive response; b) whether the Commissioner of Police gave proper consideration to the applicant's submission defending his position; and c) whether the Commissioner of Police's reasons for the making of the orders were adequate. 24 I shall return later to the reasoning in Reid-Frost, in the particular context of my conclusions as to procedural issues in this case. However, at this juncture, I would reiterate what I said in Probst at par [20] as to the procedural requirements under s 173(5) of the Act: 20 It seems to me that the key to the Commission's consideration of whether procedural fairness has been denied to the applicant is found in the following principles distilled from the authorities: 1. The procedural requirements in s 173(5) require 'if not a strict compliance at least a careful and punctilious regard to correct procedure'. 2. The Commissioner of Police is not free to 'act ill advisedly or capriciously' in respect to giving the aggrieved officer proper and adequate reasons for his decision to make the order. 3. The discretion to make the order is intended to be exercised 'according to rules of reason and justice, not according to private opinion'. 4. There would need to be demonstrated that a failure to afford procedural fairness causes 'a substantial and irrevocable prejudice to the employee'. 25 After conducting a s 174 review, the Commission may do one of a number of things by virtue of the powers available to it under s 177(1) of the Act. These are: (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application. 26 Before leaving the authorities relevant to this matter, I consider a recent decision of Marks J in Morgan and Commissioner of Police [2009] NSWIRComm 184, to be particularly apposite. Leave to appeal by the police officer against Marks J's decision was subsequently refused by the Full Bench in Morgan and Commissioner of Police [2010] NSWIRComm 67. In his decision, Marks J dealt with the removal of a police officer under s 181D of the Act, in circumstances where the officer was the subject of substantiated allegations of unauthorised COPS accesses and subsequent untruthfulness. At paras [101] and [102] Marks J discussed the importance of COPS and the paramount duty of an officer not to access COPS for unauthorised purposes: 101 Before dealing with these grounds, it is necessary to make some brief reference to the COPS computerised database system operated by the New South Wales Police Service as disclosed in the evidence given in these proceedings. The database contains a great deal of personal, confidential and sensitive information about individuals and about incidents that relate to matters that are connected to the work of the police service. Access to the COPS system is restricted to police officers and others who have a lawful reason to do so. That, in general terms, confines access to matters involving investigations and enquiries being conducted by police officers for the purpose of their work. There was abundant evidence given in the proceedings to the effect that police officers are required to limit access to the COPS system to circumstances which are properly and appropriately related to work being undertaken by them. Indeed, this was acknowledged by the applicant. Furthermore, the police service monitors access to the system made by officers and conducts audits of that access. 102 When a police officer logs into the COPS database, he or she is informed in terms which are clear and unambiguous that not only is access restricted to lawful purposes connected to their work, but disclosure of any information gained by access to the system is limited to the purposes for which that information was obtained. There is a warning displayed on the screen to this effect. Not only is training about the use and misuse of the system given to persons who are attempting to qualify as police officers, but this training is also reinforced on a periodic basis to all police officers. Marks J later said at paras [201] to [212]: 201 The unauthorised access to COPS on these two occasions and the untruthfulness during the interviews with Inspector Nicholson call into question the integrity of the applicant. The question of integrity is specifically referred to in s 181F(3)(b) of the Act. This requires that in considering my decision in these proceedings I "must have regard to" the public interest which is taken to include "the interest of maintaining the integrity of the NSW Police Force …." Of course, I am also required to take into account the other matters referred to in s 181F(3) and to strike a balance by having regard, as required, to each of them. 202 The requirement to "have regard to" these matters was referred to by Spigelman CJ in the New South Wales Court of Appeal in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198. At [73], his Honour said: [73] A statutory requirement to "have regard to" a specific matter, requires the Court to give the matter weight as a fundamental element in the decision-making process. ( R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 337-338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision-making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73].) 203 In referring to the proper approach to the application of s 181F(3), Spigelman CJ said: [77] The matters referred to in s 181F, most relevantly s 181F(3)(b), are entitled to weight as a fundamental element in the decision-making process. Indeed, the section, in its overall context, is an indication that these considerations are entitled to substantial weight. However, that does not mean that a failure to give them substantial weight, even if established and found to constitute a jurisdictional error, will constitute a violation of the Hickman principle. 204 In considering matters going to integrity in the context of this legislation, Spigelman CJ observed: [69] The importance of integrity for members of the Police Force is well established in the authorities (see, for example, Police Service Board v Morris (1984-1985) 156 CLR 397 at [412]) and in the statutory regime. [70] Section 7(a) of the Police Act , as reflected in the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Statement of Values, states that each member of the Police Force is to act in a manner which "places integrity above all". [71] With respect to this matter it is pertinent to refer again to the Commission's obligation in s 181F(3)(b), which specifically states that the Commission "must have regard to the public interest", and that the public interest includes: "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)." [72] Although s 181F(3)(b) uses language of institutional integrity, rather than of personal integrity as identified in s 7(a) of the Police Act , in its particular context the reference to "integrity of the … Force" should be understood as encompassing any issues of integrity that arise with respect to the order for removal of the particular officer to which the review by the Commission relates. 205 Macfarlan and Young JJA agreed with his Honour's judgment. 206 In the course of submissions, the applicant urged that I should consider his application by reference to the totality of the circumstances applying to all of the grounds relied upon by the Commissioner. More specifically, it was submitted that the underlying investigative process undertaken by those officers responsible for gathering, collating and presenting material to the Commissioner for his consideration was so fundamentally flawed that the Commissioner's reasoning and grounds became, in the result, so tainted that they should not be allowed to stand or, alternatively, should be characterised as creating a removal which was harsh, unreasonable and unjust. Particular reliance was made, in the applicant's submissions, upon the flawed approach of Inspector Nicholson. I have already commented about the approach and attitude of Inspector Nicholson and about some of the value judgments which she professed to hold. I have also earlier commented on the fundamental importance to the processes to be undertaken by the Commissioner under s 181D of the Act that he be properly and appropriately informed of all material which is relevant to any decision that he is required to make. This in turn necessitates that those presenting it to him should have first undertaken some proper evaluative process to ensure that that which is provided has a sufficient factually accurate base and that there has not been an omission to provide information which is also relevant to the Commissioner's decision. The "results based" investigative technique employed by Inspector Nicholson is inconsistent with the proper and appropriate preparation and presentation of material to the Commissioner and the failure to properly inform the Commissioner concerning the nature and extent of the threat posed to the applicant by the particular police officer involved in the siege is a fundamental omission. 207 Nevertheless, I am entitled to approach the matter by way of a fresh and independent review of all of the evidence provided, of course, that I follow the processes mandated by s 181F(1) and have regard to the matters as mandated by s 181F(3). I note for completeness the burden of establishing entitlement to relief as set out in s 181F(2). The fundamental matter that needs to be considered to resolve these proceedings is that which concerns the unauthorised access to COPS on both occasions and the untruthfulness of the information about the access so gained given to Inspector Nicholson on the two occasions to which I have referred. I have already referred, in a general way, to the COPS system and the importance of confining access to it in circumstances that are authorised by reason of the processes and protocols that apply within the New South Wales police force. The information contained within the COPS system is obviously highly sensitive and access must be confined in the manner authorised by the Commissioner. 208 In essence, the applicant relies upon his concerns for his safety and security and that of his family posed by the threat that he feared from the conduct of the police officer ES. He asserts that he was not given sufficient support by fellow police officers and that some of them may have inappropriately downplayed that threat. These circumstances were said to have been exacerbated by the refusal to allow the applicant to transfer to another locality with his family. 209 Put shortly, the question for determination is whether or not the unauthorised access can be justified as a means utilised by the applicant to secure his protection and that of his family. If such justification could be accepted, it would also be necessary to justify, in the same way, the untruthfulness of the applicant in the information that he conveyed to Inspector Nicholson. 210 There are instances where police officers gain unauthorised access to COPS for matters of personal gain. These might include unauthorised access to check on a motor vehicle licence or other details concerning estranged partners or the new partners of an estranged spouse and the like. Such examples may include improper access to provide information about someone to a third party for monetary reward. There is no question of personal gain in the circumstances of these proceedings. There is no suggestion of any motivating factor for the unauthorised access to the COPS system gained by the applicant other than something done in the course of seeking to protect himself and his family from someone who the applicant assessed posed and continued to pose a significant threat. Such unauthorised access is, on the applicant's case, to be considered in the context of the applicant's perception of lack of adequate support from others within the New South Wales police force including the failure to transfer him to another locality. 211 I am required to take into account the applicant's interests. In the more usual proceedings brought under s 181E of the Act, the applicant's interest extends to matters such as his or her ability to remain a member of the New South Wales Police Service, his or her financial circumstances, loss of reputation and the like. All of these matters apply in the circumstances of these proceedings but there is the added element of the interests of the applicant represented by his concerns for his safety and that of his family. 212 On the other hand, the public interest in maintaining the integrity of the New South Wales police force dictates that police officers who deliberately and knowingly breach matters of fundamental importance, such as unauthorised access to COPS, and who are untruthful in the course of disclosing information to superior officers must run a grave risk that they will not discharge the burden of establishing that removal from the police force was harsh, unreasonable or unjust. Thus, it should not be lost sight of that the unauthorised access of COPS and an officer's untruthfulness may well be a sound basis for the Commissioner's loss of confidence in an officer and the officer's removal. Obviously, that was not the outcome in this case. THE EVIDENCE 27 The following persons provided statements/affidavits and oral evidence in the proceedings: Senior Constable Robert Whyte ('the applicant') Superintendent Paul Fehon ('Supt Fehon') Inspector Alan Paul Francis Williams ('Insp Williams') Inspector Michael Heap ('Insp Heap') Constable Nerida Laurie ('Const Laurie') Mr Daniel Williamson Mr Jade Zaicew Constable Brett Andrew Pacey ('Const Pacey') Sergeant David John Williams ('Sgt Williams') Sergeant Peter Neville (Sgt Neville') Detective Sergeant (Acting Inspector) Kim Fehon ('Acting Insp Fehon') 28 The following persons' statements were tendered, but they were not required for cross-examination: Sergeant Joanne Schultz ('Sgt Schultz') Senior Constable Jason Trotter ('SC Trotter') Senior Constable Bryn Davies ('SC Davies') 29 I intend to deal with the evidence concerning each of the allegations made against the applicant and found proven by Supt Fehon. The applicant's responses to the two notices under s 173(5) of the Act formed the basis of his written evidentiary case. Personal and Police History 30 The applicant is 40 years of age and has sole custody of his son from an earlier marriage. The applicant graduated from the Police Academy in the top 70% of his class in 1989 and was first stationed at Newtown. After completing a secondment with the Prison Vans Escort Unit, he was selected as a Patrol Training Officer (now known as Education Development Officer (EDO)). In 1995 he was transferred to Ballina for 12 months and then to Tweed Heads for seven years, where he performed predominantly general duties. He was also seconded to the Detectives and the Anti-theft squad. He successfully applied for an EDO position at Port Macquarie and was promoted to Sergeant in 2002. He performed EDO duties for five years and then volunteered to go back to general duties where he currently works as a Team Leader, Sergeant Level 7/8. 31 The applicant has received Region Commander's Commendations and the New South Wales Police Medal for 15 years of good conduct and diligent service. The applicant described his role in arresting and successfully convicting numerous offenders for a variety of offences and gave details of how he had been injured and threatened during a number of incidents. 32 In oral evidence, the applicant said that over the last two years he has effectively been the most senior officer rostered on at least one shift a week and sometimes two. Supt Fehon had been aware of this and on one recent occasion when Wauchope was flooded, Supt Fehon left him in charge of the impending evacuation. 33 The applicant said that he had also been involved in undertaking internal investigations of complaints against fellow officers, usually of a minor nature, although one involved the dismissal of an officer over integrity issues. The applicant said there is usually one EDO for every 80 officers; but in Port Macquarie it had been one for every 170 staff, for several years. He did not complain about relief and performed his duties without complaint. The applicant claimed to have a good sick leave record, and had worked long hours and extra unpaid hours. He described himself as punctual, relatively well groomed and a good example to his team members. He said he had no other complaint history. 34 Issue 1 – Inquiries in relation to Mr Daniel Williamson on 5 December 2006, including inappropriate COPS access Details: It appears that on 5 December 2006, you made an inappropriate COPS access in relation to Mr Williamson, who appears to have been Ms Laurie's boyfriend at the time. On 5 December 2006, while on duty (but apparently taking a meal break), you admit you drove to Ms Laurie's unit on Flynn Street which was over ten kilometres outside your patrol area on that shift. Whilst in Flynn Street, you made a radio request for a vehicle check on a blue Holden Rodeo utility registration number DW-0172 and were informed that the registered owner was Daniel Williamson. You then requested Mr Williamson's address. Later during your shift on 5 December 2006, you made COPS enquiries regarding Mr Williamson at 10:33pm, 10:34pm and 10:36pm. 35 The applicant did not deny making the COPS inquiries on 5 December 2006. However, he said he did not know Const Laurie was in a relationship with Mr Williamson at that time. He insisted that his relationship with Const Laurie ended in November 2006, although he conceded they had stopped living together in August 2006. Nevertheless, she had left many of her possessions with him and they continued an intimate relationship until 19 November 2006. 36 The applicant said it was not uncommon for outstation car crews to enter the main Port Macquarie sector. No crew has ever been directed not to do so and he had not left his Local Area Command (LAC) while on duty. The applicant said he was in the sector during his meal break to purchase dinner for his son and himself. He claimed that he was carrying out some proactive policing in an identified crime 'hotspot' in Port Macquarie (Flynns Beach) which explained his interest in the subject vehicle. He had asked for the address in order to try to establish why the vehicle was in a residential area at that time. It was one of 20 vehicles in the vicinity, but it stood out as being out of the ordinary at the time. He accepted, and had admitted, that the vehicle was in the street in which Const Laurie resided. He claimed he had not known it was Mr Williamson's vehicle until he checked and had not known he was seeing Const Laurie at the time. The vehicle had a company name and address painted on its back. 37 The applicant acknowledged he had not completed a notebook entry in respect to the COPS access, but he had registered a Reason For Access (RFA) on the computer system. He said that this replaced the requirement for a COPS entry. During the course of the COPS entry, he discovered that Mr Williamson had been reported for entering enclosed lands (trespassing) and Insp Williams (the Investigator) had failed to mention this in his report. 38 During the applicant's oral evidence, the Force's tasking and deployment records for November/December 2006 were tendered. These records colour coded various locations according to their known criminal activities. Flynns Beach was highlighted as a dark shade of yellow indicating it to be a high intensity crime area. Const Laurie resided in this area. 39 In cross-examination, the applicant explained that he was on duty on the night of 5 December 2006, working with Senior Constable Allan Rider ('SC Rider'). After dropping SC Rider off at his home, he went into the CBD of Port Macquarie to buy dinner for himself and his son and then went via Flynn Street to his residence. He had called into Const Laurie's home to see if she was okay. She was not home. He claimed to have done so several times since their relationship had ended. The applicant said he noticed a suspicious vehicle ten metres from Const Laurie's house. He identified the vehicle from a number of coloured photographs tendered in the proceedings. He said that the vehicle had been in a known crime 'hotspot'; it had stood out and he was suspicious. He had not seen the vehicle parked there before. He said that the unattended vehicle was parked at an angle, as if it had been parked in a hurry, and as it was a utility it was a good vehicle for use in break and enters. He agreed he did not always check every utility parked at an angle. He also acknowledged that parked cars were usually unattended. He just had a 'gut feeling' something was not right and it was out of the ordinary. 40 The applicant acknowledged that there was no operational reason for him being in Flynn Street. However, he was just carrying out some proactive policing because of recent robberies and home invasions in the area. He was asked why a COPS search disclosed only one break and enter at Flynns Beach between 1 November and 5 December 2006. When shown the colour coded crime activity exhibits, the applicant agreed that red was the highest intensity and that yellow was somewhere between low and high. The central CBD is traditionally the main 'hotspot'. In re-examination, the applicant said that Flynns Beach was highlighted a darker yellow which is the step below red. He said police officers were encouraged to travel through 'hotspots' in order to be seen or to catch offenders. 41 The applicant denied that he had no good or credible reason why he checked Mr Williamson's vehicle that night. He agreed he had been upset and disappointed by the end of his relationship with Const Laurie, but this was not the reason why he checked the vehicle that night. When he made a radio call check, he was provided with the name of the registered owner, the make, model and vehicle registration details. He could not remember if he had asked for the address of the owner. (The transcript of the call indicated that he did.) He said he then went home, had a meal with his son, picked up SC Rider and returned to patrol duties. The applicant accepted that there was no information gained from his inquiries that caused any real suspicion the vehicle had been used in criminal activity. In further cross-examination, the applicant was shown a map of Port Macquarie and asked to identify each point where he went on 5 December 2006. He indicated that Const Laurie's home was one street off the main road he took to his home. 42 Issue 2 – COPS access in relation to Mr Williamson on 6 December 2006 Details: It appears that you made a COPS access in relation to Mr Williamson on 6 December 2006 at 7:31pm and 7:32pm. The reason you gave for the COPS access was a "Firearms ENQ" . 43 The applicant said that he considered, but then decided not to complete an intelligence report on the subject vehicle. He believed that if he had done so, it would have been regarded unfavourably by the Force. The applicant denied he had made this second access as a firearms inquiry and there was no document which supports that he did so. He agreed it did not make sense to look up the same details twice. The applicant acknowledged that if he had known of the relationship between Mr Williamson and Const Laurie it might be viewed (by the Force) with concern; but he had not known and so did not make these inquiries 'to satisfy a personal interest'. The applicant said since this time he had been subject to random COPS audits and no issue had ever been identified or raised with him in that regard. 44 The applicant said that on the evening of 6 December 2006, he had accessed the COPS at Wauchope Police Station. He conducted further checks on the vehicle, Mr Williamson and Mid Coast Garages (Mr Williamson's workplace). He agreed that ten separate inquiries were made, notwithstanding that nothing indicated a suspicion of the vehicle being involved in criminal activity. He accepted this was the case. 45 Issue 3 – Visit to Mr Williamson's workplace on 6 December 2006 Details: On 6 December 2006, while off duty, it appears you visited Mr Williamson at Mid Coast Garages, his place of work. It appears that you initially made some enquiries about obtaining a quote from him for a shed. Mr Williamson states that you asked him how long he had lived in Port Macquarie, whether he lived in Flynn Street, and whether he had any children. In interview on 28 February 2007, you stated that you visited Mr Williamson "for my own personal reasons". You also stated that you were making "covert inquiries" because of the way the vehicle had been parked. You then said that you had some concerns about why "this strange vehicle" was in the area, and claimed that you had some concerns for Ms Laurie's safety and that of her young family. You denied asking Mr Williamson if he had any children but admit that you asked if he had "any kids working for him" . You state that you were trying to identify if any local criminals may have had any reason to use the vehicle. Inspector Williams states that, during a NSW Police Force Christmas function on 10 December 2006, you told him that you had attended Ms Laurie's new boyfriend's workplace to "check him out" under the pretext of obtaining a quote for a shed. 46 The applicant admitted he visited the workplace of Mr Williamson while off duty. However, he did not know who he was or that he was in a relationship with Const Laurie. He said he had been polite, well-mannered and had asked for a quote for a shed. He had made no reference to his occupation as a police officer. The applicant said he was surprised this incident was described as 'harassment' given that while he was there, customers came and went and he had engaged in an amicable conversation. As to the conversation with Insp Williams at the Christmas Party, the applicant said he had been misquoted and taken out of context. He believed it was 'outrageous' and a conflict of interest to use a private conversation outside the workplace during an investigation conducted by the same person. This conversation had not been mentioned in the statement supplied to him. 47 The applicant noted that the formal complaint of Mr Williamson did not say he had felt harassed or intimidated and another customer, not mentioned in the notice, had said she had not felt harassed or intimidated and had not associated him with being a police officer. He said he was just another customer, and another employee, Ms Joan Barlow, said she did not hear him ask any personal questions of Mr Williamson. 48 In cross-examination, the applicant agreed that in his record of interview he had said he went to Mid Coast Garages 'for my own personal reasons'. He was also intending to make further inquiries as to why the vehicle was parked where it was the night before. He was just checking out an idea in his own mind - in his own time. He conceded he had not reported any suspicion he had to any other police officer. He had gone there to conduct 'a discrete covert inquiry on my own behalf'. 49 The applicant denied that he told Insp Williams at the Christmas Party on 10 December 2006, that he had gone to Mr Williamson's place of work to check up on him. He denied saying words to the effect of: "I broke up with my girlfriend, Nerida Laurie, recently. We went out together for about 4 years. She has formed a relationship with another man now. I went to her new boyfriend's work place the other day to check him out, but pretended that I was there getting a quote for a shed." 50 The applicant agreed that when he went to Mr Williamson's workplace he indicated to him that he was looking for a quote for a shed, for his mother's property. He was there for about 10 to 15 minutes. He had asked Mr Williamson if he lived in Flynn Street and he said he had seen his car there the night before. Mr Williamson had replied 'It pays to advertise'. The applicant denied intimidating Mr Williamson. He denied asking Mr Williamson if he had any kids. He indicated to Mr Williamson that he was in the process of getting approval for a shed, although it ended up being a smaller one in the backyard. He agreed he was also motivated by a concern for Const Laurie, although he had no objective concern that she was in danger – he just had a 'strange feeling'. The applicant agreed that he undertook a further COPS search on Mr Williamson that night, including looking up his firearms licence. He said he was just seeing if he had missed something. He denied he was suspicious that Const Laurie might be seeing someone else. He agreed he did not file an intelligence report on the vehicle as he had no legitimate basis to do so. The applicant denied he had made these private inquiries to satisfy his own interests. He maintained that he had acted discretely and had not been in uniform. 51 Issue 4 – Incident on 10 December 2006 at the Children's Triathlon Details: Mr Williamson states that on 10 December 2006, while he was working as volunteer at a children's triathlon, you stood directly behind him for about half an hour. Ms Laurie says that Mr Williamson told her about your behaviour, and as a result she states that she telephoned you herself. Ms Laurie states that during this telephone conversation you said, " Do you know how hard it was to see you standing there with that bloke ". In interview, you state that you did not know Mr Williamson was at the event. You admit that you did have a conversation with Ms Laurie and that you did see her with someone, however, you state that " I made no approach, I made no contact" . 52 The applicant said that when he arrived for work on 10 December 2006, he observed Const Laurie and a blond haired male on the footpath outside the front of the Police Station. He did not know if it was Mr Williamson. He did not approach them and went inside. About an hour later, he left the Station, crossed the road and spoke with Fire Brigade Officer, Mr Tony Lenthal. He did not see Const Laurie or the male person at this time. The applicant said Mr Lenthal could confirm that he had spoken to him and that he had not approached or harassed anyone. 53 The applicant said he sent Const Laurie an SMS that day stating that he had seen her kissing someone on the footpath outside the Police Station; he did not appreciate it and it was hard for him seeing her with the guy. When Const Laurie called back, she had not mentioned that Mr Williamson had felt harassed or had even noticed him. He also noted that Mr Williamson had said that he had not approached him, nor did he say he felt harassed. The applicant observed that Mr Williamson's complaint had been withdrawn and should not now have been relied upon by the Force. 54 In cross-examination, the applicant denied standing behind Mr Williamson or next to him while in uniform or following him when he moved around. The applicant denied even seeing Mr Williamson at the Triathlon and said he was merely talking to Mr Lenthal about 20 steps from the front door of the Police Station. He had then left the area. The applicant said he spoke to Mr Lenthal about fishing, the Triathlon and what the Fire Brigade was doing there. The applicant had unsuccessfully tried to get a statement from Mr Lenthal. He had been trying to track him down for months, although he had never met him before; they had just spoken over the phone. 55 Issue 5 – Incident on 11 December 2006 at Shades Cafe Details: Mr Williamson states that at about 8:45am on 11 December 2006, while he was having breakfast at Shades Café in Port Macquarie, you drove past the café a number of times in your personal vehicle. Mr Williamson states that his vehicle, a blue Holden Rodeo utility registration number DW-0172, was visible at the time because there were not many cars parked in the street. In interview, you deny seeing Mr Williamson or his vehicle on that day. 56 The applicant asserted that this issue was not sustained and it was inappropriate and unethical for the Force to now rely on it. The applicant had nominated witnesses to these events, but these persons had not been interviewed. The incident occurred in the main street while the applicant was driving his own vehicle and he had a legitimate reason for being there. He denied harassing or intimidating Mr Williamson then, or at any time. 57 In oral evidence, the applicant said that Shades Café (now called Bean Tree) is in Horton Street, the main street of Port Macquarie. He said he had never been to the café before and was in Horton Street collecting a parcel from a second hand goods store for his mother. The store was actually in a cross street (Hayden Street), and he had not been there before. He always wore dark tinted sunglasses during the day and it would have been impossible for someone to see his eyes when he was driving. In cross-examination, the applicant denied seeing Mr Williamson having breakfast at Shades Café and said it was a very unfortunate coincidence he was there when he was driving past. Even so, Port Macquarie is a small place. 58 Issue 6 – Alleged failure to declare his knowledge of a relationship between Constable Nerida Laurie and Mr Williamson Details: Even if your inquiries into Mr Williamson and his vehicle can be proved to be appropriate, it appears that you did not report your knowledge of the relationship between Mr Williamson and Ms Laurie. 59 The applicant admitted that he had failed to declare his knowledge of Const Laurie's and Mr Williamson's relationship, but said he had no obligation to do so (and had not breached the Force's Conflict of Interest Policy) given he only became aware of the relationship on 9 December 2006, after his inquiries into Mr Williamson had been completed. 60 The applicant said that he returned Const Laurie's belongings to her on 9 December 2006, not 25 November 2006. (The reference date being to his comment 'the following Saturday' as assumed by Insp Williams.) Const Laurie and Mr Williamson could confirm the correct date and so could Insp Williams because in their conversation on 10 December 2006, at the Christmas Party, he informed him that the morning before (when he returned her belongings) he had found out about Const Laurie and Mr Williamson seeing each other. 61 In cross-examination, the applicant insisted that he had ended the relationship with Const Laurie on the Sunday she returned from the Police Academy, around 19 November 2006. He denied Const Laurie's claim that they had separated in August 2006. He was questioned why he had said in his record of interview that he found out about the relationship between Const Laurie and Mr Williamson 'the following Saturday' (25 November 2006) and he then said it was Saturday, 9 December 2006 - three weeks later. He denied offering the second date of 9 December 2006, to avoid an obvious conflict of interest as to when he engaged in the COPS accesses and visited Mr Williamson's workplace. He insisted he only became aware of their relationship after the two COPS accesses and the visit. He conceded that looking back, it could look like a potential conflict of interest. 62 The applicant acknowledged that even when he said he did find out, he did not disclose (officially) to anybody that he had made the COPS accesses and had visited Mr Williamson's workplace. He now agreed that, in hindsight, he should have, although there was no legitimate basis to report it because his knowledge was after the inquiries and he therefore had no obligation to report it. 63 In further cross-examination, the applicant was asked about his attendance at an engagement party of his friend, Mr Jade Zaicew on 2 December 2006. The applicant had suggested that he and Const Laurie attend the party as a couple, but she had declined to do so. Both Const Laurie and Mr Williamson were there, but the applicant said he did not see Mr Williamson. She had left the party before him and had returned. The applicant denied he was told that night by his friend, Mr Zaicew, that Const Laurie was seeing someone else by the name of 'Dan'. The applicant maintained that, at that time, he had no idea she was seeing someone else. The applicant said he first knew about it on 9 December 2006, when he returned her belongings and saw Mr Williamson's car there again. He insisted he was truthful with the sequence of events and when he first learnt that Const Laurie was seeing someone else. The applicant agreed Const Laurie had moved out in August 2006. However, she still had his keys, visited him often and they were still intimate and actively socialising together up to November. The phone was in her name. 64 The applicant strongly denied following Const Laurie or turning up to places where he knew she would be. She had not asked him to leave her alone when he approached her as recently as Melbourne Cup Day 2009, at Finnian's Irish Tavern. The applicant said he had visited Const Laurie's grandmother on several occasions – once in December 2006 when he showed her a photo of an engagement ring. (He also showed the photo to Const Laurie.) He had believed that Const Laurie and her children had stayed there when she moved out, but they had not. The applicant denied following Const Laurie after she visited a friend's house, Senior Constable Michael Prott ('SC Prott'). The applicant agreed that on his own evidence, their relationship ended in 2006, yet he still showed the photo of the engagement ring after this time. He explained he was broken hearted. However, he had accepted the end of their relationship. 65 Despite Const Laurie's denials, the applicant insisted that: · Const Laurie turned up in tears when her relationship with Mr Williamson ended; · Const Laurie told him Mr Williamson was a regular ecstasy user; · They had continued a casual intimate relationship prior to her attending the Police Academy in Goulburn; and · Const Laurie was not working before going to Goulburn. 66 In re-examination, the applicant said he had been lied to and deceived by Const Laurie. The applicant said he was very surprised the Force did not make any inquiries of Mr Zaicew, even though he had supplied the Investigators with his name and address. Mr Zaicew was one of the mutual friends who told him about Const Laurie and Mr Williamson on 8 December 2006. The applicant said on 9 December 2006, he saw Mr Williamson's car in Const Laurie's driveway; the same car he had seen on 5 December 2006. 67 Const Pacey had worked with the applicant for five years. They had not socialised together, but he found him to always display a high level of professionalism and honesty. He was very approachable and helpful. Const Pacey said he had never seen the applicant disregard New South Wales Police Policies and Procedures and had not seen any inclination that he placed his personal interests ahead of his police duties. 68 Const Pacey was approached by the applicant in early 2009 about an incident in late 2006, following a farewell party for former Inspector Giles. Const Pacey had been on duty and had conveyed numerous police officers home after the party. He said that around 1:00am the applicant came into the Station and asked if he could convey him and his partner, Const Laurie to Flynns Beach. He agreed and a short time later, he and the applicant left the Station. He believed another officer was present. As they drove up Clarence Street, he sighted Const Laurie walking in an easterly direction. He pulled over and she got in the back next to the applicant. They had a conversation, but he could not recall the details. When they reached Flynn Street, the applicant asked him to stop outside a row of units. Both Const Laurie and the applicant exited the vehicle and walked towards the units. Const Pacey then drove off. 69 In oral evidence, Const Pacey said that on the morning after Inspector Giles' party, he had believed that the applicant and Const Laurie were together. In cross-examination, he agreed that the applicant had not used the word 'partner' (see above) and it was an assumption he had made. He agreed he could not say as a matter of fact, that they were still in a relationship at that time. 70 Mr Jade Zaicew is a friend of both the applicant and Const Laurie. He first met the applicant in 2003 and has had no cause to doubt his integrity. He said the applicant is well liked and respected by his friends and peers. Mr Zaicew said he did not know the basis of these proceedings. Nevertheless, he was friends with both of them and had no reason to support one in preference to the other. 71 Mr Zaicew knew that the applicant and Const Laurie had lived together; firstly, in the applicant's residence in Heather Street and then in a rented apartment in Brindabella Way. Mr Zaicew believed that Const Laurie moved out in August 2006, and while they were living apart, they were still together, despite conflicts between their children. Mr Zaicew said they had both socialised together in the next few months. Mr Zaicew said that in late November 2006, about a week before his own engagement party, the applicant told him that he had broken off his relationship with Const Laurie. He had appeared upset and saddened by the break-up. 72 Mr Zaicew's engagement party was held on 2 December 2006. The applicant and Const Laurie were both invited, although this caused a dilemma for Mr Zaicew. He did not want to get involved in their separation, but the applicant assured him it only related to issues with children. While they were both invited as a couple, they arrived separately. They appeared 'pretty friendly' together. They were talking and having a drink and had dinner together. 73 Mr Zaicew said Mr Williamson was also a guest at the party, but he believed the applicant did not know him at the time. Mr Zaicew said he had heard 'on the grapevine' that as soon as the relationship with the applicant had ended, Const Laurie had started dating Mr Williamson. Mr Zaicew did not say anything to the applicant at that stage, believing it was none of his business. 74 Mr Zaicew said Const Laurie left the party and the applicant did so a little while later. Const Laurie returned after someone had rung her and told her the applicant had left. Const Laurie and Mr Williamson were seen kissing each other in the kitchen. However, Mr Zaicew did not say anything to the applicant at that time, as he did not want to see him hurt. 75 Mr Zaicew said that at the end of the next week, Friday, 8 December 2006, he had a few drinks with the applicant. The applicant told him that he thought Const Laurie was seeing someone else and he mentioned the name 'Dan'. Mr Zaicew put 'two and two together' and told the applicant what he had heard. The applicant told him that he was returning all of Const Laurie's belongings the next day as she was now seeing someone else. Mr Zaicew told him not to do anything stupid which might compromise his career. Mr Zaicew said that Const Laurie and the applicant's friendly relationship ended a couple of months after that. However, he was not privy to the reasons why. 76 Mr Zaicew said that over the next six months when socialising with the applicant, they would occasionally run into Const Laurie at one of the few pubs in Port Macquarie. She and the applicant were always polite and friendly towards one another and she would come up and say hello and visa versa. Mr Zaicew knew that Const Laurie had invited the applicant to her birthday party at the Macquarie Hotel in March 2007. Const Laurie was Mr Zaicew's wife's bridesmaid at their wedding in May 2007, also attended by the applicant. They were both friendly with each other and even danced together. He believed they left together in a cab. 77 In re-examination, Mr Zaicew agreed that Const Laurie had never told him after August 2006 that she and the applicant were still together. He said that at his engagement party, he had heard other people talking about Const Laurie and Mr Williamson being together (romantically), but neither of them had told him directly. When the applicant told him on 8 December 2006, of his own suspicions, he did not say how he had found out. 78 Issue 7 – Alleged untruthfulness during directed interviews on 28 February 2007 and 13 March 2007 Details: It appears that you were less than fully frank in relation to your knowledge of Ms Laurie's relationship with Mr Williamson during the investigation. In directed interview on 28 February 2007, you stated that when you made the COPS enquiries into Mr Williamson on 5 and 6 December 2006 you did not know that Ms Laurie was in a relationship with Mr Williamson. You stated that you were going to create an intelligence report on Mr Williamson. In interview on 13 March 2007, you said that at the time you made enquiries into Mr Williamson and his vehicle you "had no reason to believe that Nerida was involved in any relationship" . However, later in the interview you state you broke up with Ms Laurie on 19 November 2006 and admit that you became aware of Ms Laurie's relationship with Mr Williamson on "the following Saturday" after you broke up. You state you became aware of Ms Laurie's relationship with Mr Williamson because when you returned Ms Laurie's property to her, Mr Williamson's vehicle, a blue Holden Rodeo utility registration number DW-0172, was parked out the front of her house and you put "two and two" together. You state that the date was 9 December 2006, however, it appears that the date of one week after 19 November 2006 is on or around 25 November 2006. This is around 10 days before you made the COPS enquiry in relation to Mr Williamson, and attended his workplace. 79 The applicant explained that his comment in the directed interview about the date being 'the following Saturday' was taken in isolation without regard to the entirety of the evidence. He noted that Insp Heap had accepted the contested date as 9 December 2006, and, in an earlier record of interview, it was said to be a 'couple of days later' than 5 December 2006. The applicant said there were four other witnesses who would support his version of events. 80 The applicant believed it was unfair that if this matter was so significant, why he was not informed of it for two years. He added that Const Laurie herself had said she commenced a relationship with Mr Williamson in the 'first week of December', yet this was ignored. Insp Williams omitted this evidence and it was not mentioned in the s 173 notice. The applicant denied he was untruthful in the interview with Insp Williams and, consequently, was not in breach of the Force's Code of Conduct. 81 Issue 8 – Use of identifiable police envelopes in May 2007 for private purposes Details: You are the owner of a unit at 3/7 Heather Street, Port Macquarie which you rent to Mr Colin Skinner. It appears that you and Mr Skinner were in dispute about some unpaid rent and the termination of the lease agreement. Mr Skinner says that, on two occasions in May 2007, you sent letters to him using envelopes bearing a police insignia. You admit that on two occasions in May 2007 you sent letters to Mr Skinner using envelopes bearing police insignia. You stated you did this because you did not have access to a blank envelope at the time. 82 The applicant said he regretted using the Force's envelopes. However, as the matter related to unsustained findings in respect to Ms Colin Skinner's complaint of harassment, it should not be relied upon in the s 173 notice. The applicant said that the claim that he 'did not seek the prior approval of Management' was inconsistent with him being in a Management position. In any event, it was, at its highest, a minor breach of the Policy. 83 Issue 9 – Wearing of police uniform at the Consumer Trader and Tenancy Tribunal (CTTT) in May 2007 Details: In May 2007, you attended a Residential Tenancy Tribunal (Tribunal) hearing against Mr Skinner. Mr Skinner states that at the hearing you were wearing full Police uniform. You admit that you were wearing your police cargo pants and boots as you attended the Tribunal immediately after your shift. You deny that there was any insignia or any other police markings on show. 84 The applicant admitted wearing his blue police cargo pants to the CTTT, but denied he improperly used his position or breached the Force's Code of Conduct. In any event, the issue again related to Mr Skinner's complaint, which was not sustained. The applicant said it was common practice for officers to wear parts of their uniform, with no identification markings, while off duty. He referred to a recent work 'get together' at a local pub where officers, including an Inspector, were present and six to eight of them were wearing their cargo pants and purchasing and consuming alcohol. 85 Issue 10 – Wearing of police uniform at Heather Street on 20 May 2007 Details: Mr Skinner states that, on 30 May 2007, you attended the unit at 3/7 Heather Street in a police vehicle and wearing full police uniform. He says he was intimidated by you. It appears that the purpose of your visit was to discuss an agreement in relation to the tenancy dispute. You admit that, on one occasion, you attended the premises in a police vehicle in your uniform in your meal break, for a scheduled appointment with Mr Skinner. 86 The applicant said that this issue was not sustained and never mentioned in Insp Williams' report. The applicant admitted attending the subject premises to attend a meeting with a builder about emergency work on a brick wall. He did so during his meal break, while in uniform, and driving a police car. In any event, he believed it was a common entrenched practice for officers to use Departmental vehicles for minor personal matters. However, he had been singled out for criticism. He noted that there was no information supplied to him about any complaint over this issue. He was denied procedural fairness now as it was being relied upon. 87 In cross-examination, the applicant said that as a Sergeant, he could authorise himself to use police resources for minor personal use. He denied it was a conflict of interest and said it was common police practice (culture). He had done so for 20 years without anyone telling him not to. He said that even Supt Fehon had told Sergeants they were managers. 88 Issue 11 – Incorrect or misleading entries in the Mandatory Training Records Details: It appears that you provided incorrect or misleading information in relation to the exemption categories for Mandatory Training in the 2006/2007 training year. As the Education and Development Officer (EDO) for the Mid North Coast Local Area Command you were responsible for maintaining training records. In January 2008, a Northern Region audit was conducted for the 2006/2007 training year and an audit report was produced (Audit Report). The Audit Report found that 44 increments had been processed between July and December 2007 which contained errors, including "insufficient points accrued for mandatory lectures, incomplete [defensive tactics] modules and anomalies in the recording of live fire scores." A number of incorrect exemption categories had also been recorded. The report found that, of a total of 180 staff, there were 143 anomalies regarding exemption categories and training records. On 11 may 2008, you conceded in interview that some of the exemption categories were incorrectly recorded and provided explanation for some of the anomalies. 89 The applicant claimed that both this issue and Issue 12 were performance related matters, which did not go to his conduct or integrity. The applicant explained that he recorded the exemptions for a variety of reasons and there was no intent to deceive anyone. In any event, the individual reasons are documented in each officers' SAP records, and it was not necessary to record the individual exemptions again. Moreover, he had received no training on how to complete this system correctly. The applicant said that Insp Williams only spoke to him about 44 anomalies, not 143. He was therefore denied procedural fairness. He complained that he had been expected to recall and answer individual questions from two year old computer data entries. If the problem was so bad, he would have been entering incorrect data over and over again. Yet, there had been no previously identified deficiencies and, obviously no remedial plan had been put in place. In any event, he said there was no motive for his conduct and no personal advantage to recording the exemptions in the manner which he had, except to save time. No one had ever raised any performance issue with his EDO role in five years. 90 In cross-examination, the applicant conceded that he had received some training in the role of an EDO and had attended conferences. However, he had not been trained in the SAP system, although this was usually learnt on the job. He agreed that a spread sheet prepared by Sgt Schultz about the matter was correct. 91 The applicant agreed that he had prepared a training needs analysis for the LAC from July 2007 to June 2008, which disclosed that he had verified that he had been fully trained and qualified for the EDO role. The applicant agreed that the investigation into this issue found that his mass data entry had saved him time. He agreed the audit identified 143 anomalies, although the exemption category counted for most of them. Nevertheless, he maintained that most of the anomalies were explainable. He noted that several of the named officers were not even in the Command at the time. 92 Issue 12 – Falsification of firearms training scores Details: It appears that you falsified official Police records in relation to the firearms training scores and Mandatory Training Lectures. The Audit Report indicates that you had recorded a score of 36/36 for each officer undergoing weapons training on 14 November 2006, 13 March 2007 and 12 June 2007. A score of 36/36 is a perfect score. However, it appears that the relevant training registers show that the relevant officers had not, in fact, scored perfect scores. 93 The applicant conceded that he entered incorrect scores for a number of officers (20), but he had not intended to be misleading or deceiving. Rather, he had acted out of necessity. He said that there was a second score book for recording live fire scores which had gone missing. He had checked his own records and established each officer had achieved the minimum requirement of 30/36. He explained that he had placed an interim score of 36/36 for each officer, recorded the action and reasons why and intended to amend the records once the score book had been located. He noted that no officer received a pass which they did not earn. He said he acted clearly, openly, consistently, concisely and transparently. This was the first time he had faced this problem and he inquired of other EDOs who had told him his interim solution was appropriate. (No evidence was brought from other EDOs to support this claim. However, in re-examination, the applicant said the EDOs were reluctant to get involved and he would have had to pay for their costs and time in attending the proceedings.) The applicant said he gained no personal benefit and had not done so to save time. He believed that if his actions were inappropriate, then remedial action should have been taken. It was not. He had received no training on this issue. A witness who supported his version of events, was ignored (SC Trotter). The applicant noted that the Force took managerial action against him (removing him from EDO duties) for Issues 11 and 12, months before he was given an opportunity to respond. He also denied failing to amend an out of date induction package and said he had never used the package. 94 In oral evidence, the applicant identified the source document being 06/07 Weapons Training Schedule (Exhibit 3). He said it explains that after 26 March 2007, there was no weapons training for the year and that the score book had gone missing. 95 In cross-examination, the applicant confirmed that he entered 36/36 for a number of officers because he could not find records for three occasions - 14 November 2006, 13 March 2007 and 12 June 2007. He had looked for the duplicate books in the armoury, but could not find them. It turned out there were a couple of books in existence. When he was shown the score sheets, he agreed the figures were legible. At the time, he had recorded 36/36 as an interim solution until the score sheets or the books turned up. He had not discussed the problem with his supervisors, nor checked with them as to whether they agreed with his solution. The applicant said that an officer can only pass or fail the firearm training and as no one had failed, it did not make any difference that he gave them 36/36. He agreed he did not tell anyone of his interim solution as the records actually turned up. 96 The applicant claimed he had received no assistance in his EDO role, despite having asked for it when the average is 80 officers for one EDO and he had 170 officers. He agreed he had not put in a formal request. However, he had worked many hours of unpaid overtime just to keep his head above water. Nevertheless, he accepted that any deficiencies in his performance were not because he did not have adequate resources. 97 In further cross-examination, the applicant denied he had taken a short cut to record perfect scores on the three days in question. He denied falsifying police records. He said that no one had received a pass which they did not earn. 98 SC Trotter was one of the eight firearm instructors in the 2007/8 year. He claimed that in May 2008, Insp Williams had asked him about a weapons training score book being misplaced or lost as he was about to speak to the applicant concerning a matter. SC Trotter said he had recently taken score books to Kew for training and left them secured at the training location. He believed he retrieved the live fire book the next time he was there for training (maybe two days later) and placed it back in the training cabinet at Port Macquarie. The cabinet is unlocked and is next to the armoury. He told Insp Williams he could not be sure about this because he had only just commenced as a weapons trainer and was unfamiliar with the local administrative practises of instructors using the facilities and score books. He was not asked about the matter again, but sent an email to the applicant about the matter, at his request, in January 2009. 99 Issue 13 – Failure to enter custody records for four young persons Details: In the circumstances, there appear to be reasonable grounds upon which it could be concluded, on the balance of probabilities, that Part 9 of LEPRA did apply to each of the young persons, as they attended the police station with a view to making admissions about the theft, thus bringing them with the scope of section 110(2) of LEPRA. If Part 9 of LEPRA did apply, it follows that safe custody procedures had to be followed and a custody record should have been created for each of the young persons. Nevertheless, I note that even if Part 9 did not apply, I consider that there would be reasonable grounds to conclude that the creation of a custody record for the four young persons was appropriate in the circumstances, as they had been detained for questioning in relation to the investigation of a criminal offence. In these circumstances, I consider that there are reasonable grounds upon which it could be concluded that you failed to follow safe custody procedures or create custody records for Mr R, Mr S, Mr St and Mr L on 19 August 2008, in breach of the Police Act 1990 (NSW), LEPRA and relevant NSW Police Force policies and procedures, as set out below. 100 The applicant maintained that he had acted in good faith and had attempted to apply LEPRA and the case law as he understood it. In any event, three of the four boys were not detained lawfully, or at all, and hence Pt 9 of LEPRA did not apply and so no custody record was required. 101 The applicant accepted that strictly applying the Code of Practice he should have completed a Custody Management Record for Mr R, but the other three boys were voluntary attendees at the Police Station and there was insufficient evidence at the time to form a belief that they had committed an offence which would bring them within s 110(2) of the LEPRA. After making inquiries about the principles in Pt 9 of LEPRA, the applicant was informed that it was confusing. He stated that he had received no training, education program, performance development plan or conduct management. He noted that he was reappointed a custody manager six weeks after Management became aware of this issue and he remains on that list. 102 The applicant said that it was conceded that no evidence was lost as a result of his actions, no convictions were compromised and no damage was done to the reputation of the Force. No complaint had been made by any of the boys or their parents. If a mistake was made in good faith, then he apologised. However, he said that this was an isolated incident in his 20 years of policing. In addition, the applicant believed he had been unfairly targeted and the reference to the Internal Review Panel (IRP) of this issue was an abuse of process. The applicant insisted that Mr R should not have been arrested in the first place. He was 11 years old, there was insufficient evidence and he should have been spoken to with his mother present. It was pointed out to the applicant that the COPS event disclosed that Mr R was spoken to on 19 August, in the presence of his mother, at home, and the stolen goods were found in his bedroom. He admitted to the offence, as did the three other boys. Mr R was placed under arrest and conveyed to Port Macquarie Police Station. The applicant said he had not attended the scene and he had relied on second and third hand information from the officers. Moreover, Mr R should not have been arrested, as identified under s 99(3) of the Young Offenders Act 1997. The arresting officer had acted wrongly. Nevertheless, the applicant accepted that when Mr R was brought to the Police Station, he should have been entered into the Custody system. The other three boys had attended the Police Station voluntarily and had made admissions. The applicant denied failing to enter the four boys into the system in order to save time and additional work. He noted that it would only take a minute or two to do so. 103 In re-examination, the applicant was shown the Code of Practice for Custody, Rights, Investigations, Management and Evidence (CRIME). He said that the Force's use a P377 Form (Person attending voluntarily), meant the other three young people would have only received a warning. He suggested that, at that stage, the goods had not been identified as stolen. 104 Issue 14 – Failure to enter custody record for Ms Marnie Scowen Details: In the circumstances, there appear to be reasonable grounds upon which it could be concluded, on the balance of probabilities, that Ms Scowen was arrested on 21 August 2008, and thus, was detained under Part 9 of LEPRA. I note your assertion that Ms Scowen was not detained under Part 9 of LEPRA, but under general stop and search provisions. I consider that, even if I were to accept your assertion, there appear to be reasonable grounds to conclude that Ms Scowen attended the police station in the company of a police officer for the purposes of an investigation, satisfying the provisions of section 110(2) of LEPRA and bringing Ms Scowen's detention within Part 9 of LEPRA. I also note your assertion that as the arresting officer, you were prohibited pursuant to clause 16(2) of the Law Enforcement (Powers and Responsibilities) Regulation 2005 to act as custody manager for Ms Scowen. I consider that, even if I were to accept this assertion, you would still be required to fulfil your obligations as the arresting officer in relation to following safe custody procedures and ensuring a custody record is created. In these circumstances, I consider that there appear to be reasonable grounds to conclude that you failed to follow safe custody procedures or create a custody record for Ms Scowen on 21 August 2008, in breach of the Police Act 1990 (NSW), LEPRA and relevant NSW Police Force policies and procedures, as set out below. 105 The applicant admitted that a formal custody record was not created for the arrest and detention of Ms Marnie Scowen. However, a COPS incident was created, but not referred to in the Investigator's Report and was therefore not taken into account. 106 The applicant said it is common practice not to complete custody records for offenders detained for offensive language and who are then given a Criminal Infringement Notice (CIN). He believed that other officers had not been investigated for this widespread non-compliance and he had been 'singled out and targeted'. In any event, he said that no evidence was lost, there was no damage to the reputation of the Force by his mistake and he had acted in good faith. Further, the issue was never the subject of a written complaint. 107 In cross-examination, the applicant agreed that Ms Scowen had been arrested for offensive language and was brought back to the Police Station to be searched for possession of drugs. He agreed a custody record should have been completed by the arresting officer, but he was not the arresting officer. Nevertheless, he agreed he was the most senior officer on duty. 108 The applicant had conducted a COPS search of persons in the Port Macquarie LAC who had been brought back to the Police Station and issued with a CIN for the offence of offensive language. This disclosed numerous occasions where a custody record had not been created. The applicant said this accessing of COPS was related to his ordinary duties – researching policing practices against how other officers applied the alleged practice. He denied this was using COPS for a personal matter. He said it was a police matter. He conceded he had done so to provide evidence in support of his case. By doing so, he had now identified other examples of misconduct, based on the Complaint Management Team (CMT) rationale. He had warned the other officers not to do this or they too may be subject to disciplinary action. He believed these inquiries were to prove that what he had done was a common practice. The applicant denied that he could not distinguish between personal and professional reasons for accessing COPS. 109 Issue 15 – Alleged viewing of strip search Details: In the circumstances, there appear to be reasonable grounds upon which it could be concluded, on the balance of probabilities, that you viewed the performance of a strip search on a member of the opposite sex, in breach of the Police Act 1990 (NSW), LEPRA and relevant NSW Police Force policies and procedures, as set out below. 110 The applicant categorically denied watching a strip search of Ms Scowen. He volunteered that he watched part of the normal search on the CCTV monitor, but only because of concern for the safety of Constable Kate Barnden ('Const Barnden'), an officer with three years service, who was searching an angry, volatile, aggressive, alcohol and drug affected person with a history of violence, who could have possessed weapons. He had only looked at the monitor when Ms Scowen was yelling and screaming. There was nothing to say he was not allowed to do so. After the initial search, the applicant instructed Const Barnden to conduct a more thorough search. He did not specifically instruct her to strip search Ms Scowen and he did not watch the search on the monitor. He was unaware Ms Scowen's pants were removed during the search, until it was mentioned in the s 173 notice. The applicant said that even if he had viewed part of the strip search, s 33 of LEPRA only stipulates that the requirements be followed where reasonably practicable in the circumstances. Given Ms Scowen's history and conduct, it would have been reasonable to do so to ensure the safety of Const Barnden. 111 In cross-examination, the applicant said he was not in the room when Ms Scowen was searched. Two separate searches were conducted. He had looked up to the CCTV for a couple of seconds in the first search, because he heard Ms Scowen screaming and he was concerned for Const Barnden's safety. Acting Insp Fehon had determined Ms Scowen had been strip searched, because her pants were lowered. However, this happened in the second search, which he had not seen. He had had his back to the door and could not view either of the two monitors in the charge room. 112 Issue 16 – Inconsistencies between interview and email Details: I have noted the inconsistencies in your assertions provided in your directed interview on 29 August 2008 and your subsequent email of 1 September 2008 to Detective Inspector Fehon. These inconsistencies are: · In your email, you stated that Mr R was picked up by police while walking along the street. The COPS entry for this event states that Mr R was arrested at his home and conveyed to the police station. · During your directed interview, you originally stated that Ms Scowen was arrested. You then stated that Ms Scowen was not in custody on a charge and was not detained under Part 9 of LEPRA, but was detained under stop and search procedures and conveyed to the police station to issue her with a CIN. In your email, you sought to rely on the fact that Ms Scowen was arrested, and that you were consequently prohibited by law from acting as custody manager. · During your directed interview and in your email, you stated you were the arresting officer for Ms Scowen. The COPS entry in relation to this event does not name you as the arresting officer. In the circumstances, there appear to be reasonable grounds upon which it could be concluded, on the balance of probabilities, that you were untruthful or at the very least less than fully frank to Detective Inspector Fehon, in breach of the Police Act 1990 (NSW) and relevant NSW Police Force polices and procedures, as set out below. 113 The applicant was deeply offended by the suggestion that he had been untruthful or less than fully frank with Acting Insp Fehon. The issue had not been investigated by her and he had been denied procedural fairness for not being able to respond. Had he been interviewed about the three alleged inconsistencies in his interview, he would have said: · The location of the arrest of Mr R was a mistake and, in any event, nothing turned on it. · He had, at all times, acted in strict compliance with LEPRA in respect to Ms Scowen, notwithstanding there may be confusion about its application. He said he may not have been entirely clear in explaining his version of events. · The applicant was not the arresting officer, and while he was involved in the arrest, he was not the author of the COPS event. Even so, his name is recorded at the end of the COPS report. Other evidence of the applicant 114 In the applicant's replies to the two s 173 notices, he said there were numerous reasons why the penalty was 'harsh, unreasonable and unjust' and an abuse of power. The following matters are extracted from his responses: § I am not guilty of most of the conduct relied upon in the Notice, and the conduct I have admitted is insufficiently serious to justify the proposed penalty. § The investigations undertaken were flawed. They did not conduct thorough, professional and unbiased investigations. Evidence was omitted, invented, misinterpreted and manipulated to achieve the outcomes he desired, and there is no real evidence to support the findings. In particular, the issue of untruthfulness was not investigated thoroughly or specifically. It is unfair that any form of managerial action can be taken against an employee if they are not given the opportunity to comment on the issues when being investigated. These issues have not been proved, even to the lower standard. § Even if one accepts the issues have all been sustained, the initial alleged complaint and conduct took place over a period of 3 days in a career spanning almost 20 years. Further, the complaint by Williamson was withdrawn by him. § I have an excellent service record. I have no criminal convictions and I am a person of good character, and one of high moral fibre. § I have worked at Port Macquarie Police Station for six (6) years, without any other similar incidents or complaints. § No attempt was made to have me participate in an awareness and education programme on the obligations and requirements of the policies I allegedly breached, whether before or after the complaints were brought to my attention. · The time it has taken to resolve the complaints have been unreasonable, and has caused me considerable stress and anxiety. Some 2 years have already passed since I became aware of them in January 2006, and the disciplinary process is just starting. Not only was I not kept informed of the progress and outcome of the complaints, but no explanation has been given to me about the delay. This is inconsistent with the general principles of an accused person having the right to have the matter dealt with as soon as possible, and the observance of natural justice. · If you implement the proposed reduction in rank, the financial loss I will suffer will be severe. The reduction in salary from Sergeant Level 7-8 ($89,600.00) to Senior Constable Level 6 ($77,517.00) is a reduction of $12,083.00 per annum, or $464.73 per pay period. This does not take into account any shift allowances and overtime, which are determined on an hourly rate. I am not a rich man and live a modest life. I have not had a holiday in over ten years. I do what I can to provide for my son. As a single parent with a dependent teenage son, the loss of $930 per month out of the house-hold budget could result in significant financial pressures, including the loss of the family home. My son, who is still a full time student, may need to reconsider his study options, and probably have to leave school to seek employment. § With the new promotion system, it is safe to say that I will never return to my current position, in both rank and increment. I have completed 20 years of service with the NSW Police. § That compounding effect of the proposed penalty, over the next ten years will mean an effective loss of in excess of $100,000.00. § In addition to that, my superannuation will be dramatically reduced, providing for another significant but undeterminable financial loss. § If I am reduced in rank to Senior Constable, I fear you will then inform me that there is no position for a Senior Constable at Port Macquarie, and that you will be relocating me to Kempsey Police Station. This will, in effect, increase the financial penalty imposed upon me by adding another $400.00 per month to my budget in car and travel expenses. · I have already been penalised as a result of these complaints. For the last two (2) years, I have been denied relieving opportunities at the rank of Inspector/Duty Officer, which has affected not only my chances for promotion, but my income as well. I have (effectively) been precluded from applying for promotions during this period, and this will continue until the disciplinary process has been finalised. I have been (indefinitely) removed from the EDO position, which I won on merit, and have had to suffer the ridicule, rumour and scuttlebutt around the station about the reasons behind this. I have been denied opportunities to attend Courses relevant to my position, even when I have been the most suitable candidate to attend them. · The issues identified by the complaints have nothing to do with my ability to perform my role as Team Leader, General Duties. I have been performing that role for almost 2 years since these issues were identified, and only now you are considering the reduction in rank that would preclude me from doing so. I have performed the roles to an acceptable level, with no similar issues identified. Many times I have been the most senior person on duty in the entire Local Area Command. I have handled those duties competently and lead by example to the junior staff. I have handled and managed very delicate, serious and high profile events without issues or complaint. It does not seem justifiable to reduce my rank to Senior Constable when there are no operational reasons to support the proposed penalty. Although my motivation for work has suffered, I have continued to work every day and attempt to do my best. It seems harsh that you propose to reduce me in rank given I have continued to perform the duties as expected. I have been on the rank of Sergeant rank for almost 7 years, so to take 7 years of increments off me appears to be extremely harsh and unjust. § I have been the subject of harassment and stalking by Williamson. He has continually driven past my house, slowing down and looking in my direction, into my house and garage from the street. This was witnessed by two independent police officers on separate dates in early 2007, being Constable Ben Williams and Senior Constable Paul Slater. These actions of Williamson were reported to Detective Inspector Heap, Inspector A Williams, and A/Inspector R Mudford. Williamson has also on occasions sat at the Café across the road from the Port Macquarie Police Station. On at least one occasion, while I was walking from the General Duties Office to the Detectives Office, Williamson was glaring at me, pointing his finger at me, and yelled out to me, all of which I chose to ignore. This action was reported to detective Sergeant Brett Myers and Detective Sergeant Tim Bayly, who in turn reported that action to Detective Inspector Heap. I am aware that Williamson is having Domestic violence issues with his ex wife and her new boyfriend, with Family Law Court proceedings for custody of their child under way. Williamson used to have to attend the Port Macquarie Police Station to facilitate a custody changeover for his child, with his ex wife. On each and every occasion he attended while I was on duty, he would glare and stare at me. At the Port Macquarie Ironman in April 2008, where I was on duty and in full uniform, Williamson approached me and stood directly in front of me for about 15 minutes. He saw I was there, and just glared and smirked at me. It is obvious that he was not intimidated by me. My partner on that day, Senior Constable Bryn Davies, and GAO Rodney Packer, witnessed this action. I reported this action to A/Duty Officer R Mudford. Williamson also regularly followed me while I was on my way to work in his vehicle. He would turn off at the top of Town Beach as I approached the CBD area. The harassment became so annoying that I had to move house. 115 SC Davies filed a statement in which he said he had recently been contacted by a female person calling on behalf of the Commissioner of Police and asking for his recollections of the Port Macquarie Half Ironman three years earlier (April 2008). SC Davies recalled being on duty and the applicant coming over to talk to him. He remembered the applicant pointing out a male person standing about five metres in front of them. SC Davies had not seen this person before and still does not know who he is. The applicant had told him to keep an eye on him as he had made complaints about him in the past - although SC Davies could not recall any of the details. The male had turned back and looked at them on more than one occasion, but did not move away and did not appear scared or intimidated. There was no contact with him. Applicant's Criticism of the Investigations 116 It was the applicant's opinion that Insp Williams had not conducted a proper and thorough investigation and was biased against him. The applicant compiled a list of what he claimed were unqualified opinions, incorrect and ill supported assumptions, misinterpretations and manipulations of the evidence. He claimed that Insp Williams was not an expert in EDO training or in weapons training. He noted that even though the auditor had discovered anomalies in the records, no action was recommended to correct them. The applicant said that he had no intention to deceive anyone and no one received a benefit for which they were otherwise not entitled. More importantly, he said that these issues were not conduct based, but performance based, and should never have formed part of the complaint process. 117 The applicant complained that Insp Williams did not warn him that he was intending to interview him in order for him to prepare, obtain advice and support. He believed that the records of interview were edited and may have been 'doctored'. Given the passage of time, he could not now say whether the records of interviews were accurate. The applicant also complained that Insp Heap did not sign the records of interview immediately after they had concluded. 118 The applicant complained about many aspects of Acting Insp Fehon's report; for example: a) the issue was not generated as a written complaint under s 8A of the Act; b) the four boys were not brought back to the Station – three of them had attended voluntarily (which Acting Insp Fehon corrected); c) there was no investigation of other officers, involved in unlawfully arresting Mr R; d) LEPRA does not make reference to ' with a view to making admissions '. In these circumstances, no custody record was required to be created; e) he was given no hint of the subject matters of the interview with Acting Insp Fehon, and about which he had little recall; f) the Acting Inspector had confused 'suspicion' with 'sufficient' evidence; and g) she had alleged he had not completed custody records to avoid work, yet he had entered another adult into custody at the same time. 119 As to Issue 15, the applicant said some parts of the report were irrelevant because a verbal complaint by Ms Scowen was not sustained. He said a number of relevant matters were not mentioned and that while he was formally interviewed, Constable Jonathan Richardson ('Const Richardson') was spoken to informally and Leading Senior Constable Richard Gentle ('LSC Gentle') was not spoken to at all. He said the s 173 notice had embellished the level of search conducted on Ms Scowen. The applicant stated that he had not breached any provision of Pt 9 of LEPRA. Accordingly, he denied the allegation and denied that he had breached the Code of Conduct. Force's Evidence 120 Supt Fehon was the Superintendent at Port Macquarie Police Station between January 2006 and August 2009. He provided two affidavits for the purposes of these proceedings. Attached to his first affidavit were the: · two s 173 Notices; · two s 173 Orders; · applicant's responses to both notices; and · extract from the Police Complaints Practice Note in respect to disclosure of identity. 121 Supt Fehon deposed that between December 2006 and August 2008, a number of complaints were made against the applicant from members of the public and other police officers, each of which required investigation. The applicant's performance was also being monitored by senior officers at Port Macquarie, Inspector Paul Loughland ('Insp Loughland'), Insp Williams, Acting Inspector Ronald Mudford ('Acting Insp Mudford'), Sgt Neville and Sgt Williams. Supt Fehon had sat on the Local Complaint Management Team (CMT) with Executive Officer, Ms Marilyn Fardell, the Local Area Manager, Ms Roslyn Lang and Duty Officer Professional Standards, Insp Williams. When the CMT received the complaints against the applicant, the CMT determined that each complaint should be investigated, particularly due to the fact that he had another complaint against him of a serious nature. For this purpose, a complaints file was established and a different investigator was nominated for each issue in order to ensure objectivity and transparency. 122 Supt Fehon explained that the issues in the second s 173 notice were investigated by his wife, Acting Insp Fehon, as she was the only senior officer left in Port Macquarie who had not conducted an investigation into one of the issues against the applicant. In addition, the complaint against the applicant had been directly received by Acting Insp Fehon and she had direct knowledge of it. Supt Fehon outlined the CMT process: once the investigation is complete a report is provided to the CMT which then reviews the investigation and determines whether the issue has been sustained. The CMT may ask for further investigations to be conducted. In this case, the applicant was served with two notices because further issues came to light which needed to be investigated. Once the applicant had responded, Supt Fehon said that he considered the responses did not change his findings and the s 173 orders were issued. 123 Supt Fehon provided a description of 'optimum pathing' (the reason the applicant said he was at Flynns Beach on 5 December 2006). 'Optimum pathing' is not something that an officer would carry out independently. Supt Fehon said that, at no stage, was the applicant directed to carry out 'optimum pathing' at Flynns Beach, especially since his patrol area on 5 December 2006, was the Wauchope / Laurieton areas. 124 Supt Fehon said that the applicant was audited nine times over nine months in respect to his COPS entries because of his unauthorised access in December 2006. This audit was consistent with the practice of the CMT monitoring an officer who is found to have unauthorised COPS access. 125 Attached to Supt Fehon's supplementary affidavit were the following documents: · A file note of a meeting between himself and Constable Laurie on 24 September 2007. The meeting was called following a confidential disclosure that the applicant was 'stalking' Const Laurie. He noted that Const Laurie was fearful of mentioning the matter as it might affect her and / or the applicant's police careers. Const Laurie referred to an incident when she noticed the applicant following her in a vehicle when she left a friend's house in Wauchope. Const Laurie said she held no fears of the applicant and, although she did talk to him as a friend, she had told him, in no uncertain terms, that their relationship was over and she wanted to move on. The Superintendent advised her of the steps taken to minimise her contact with the applicant and that she should report any breaches by him. Const Laurie said she had had other stresses in her life and she was offered counselling and other support; · A confidential running sheet ('the running sheet') created by him as a result of ongoing matters surrounding the breakdown of the relationship between the applicant and Const Laurie and ongoing concerns for his welfare. The running sheet contains entries from himself and other officers: a) The first entry is that of Insp Williams dated 10 December 2006, in which he described his conversation with the applicant at a Christmas Party. The applicant told him of the break-up, that Const Laurie had formed a new relationship and that he (the applicant) had attended the new boyfriend's workplace to 'check him out' under the pretext of obtaining a quote for a fence / shed. The applicant told Insp Williams he was depressed. b) The second entry concerns a complaint from Const Laurie's boyfriend (Mr Williamson) of intimidation and stalking by the applicant and of a phone call from an unknown person who he suspected was the applicant, accusing him of being a paedophile. c) The next notes concerned the removal of the applicant's firearm. d) Entry of 18 December 2006, by Insp Heap of when Const Laurie asked to see him in private after receiving multiple phone calls from the applicant and driving past her house. She told him that the applicant had attended the work premises of her new boyfriend 'Dan' and asked questions about his family. Insp Heap told the applicant to stop contacting Const Laurie. e) Entry of 28 December 2006, by Insp Heap, after a call from Sergeant John Lawrie ('Sgt Lawrie') (a friend of the applicant's) saying that the applicant seemed to have 'lost the plot'. He gave examples of the applicant 'following' Const Laurie and visiting her grandparents with a photo of a wedding ring. He was aware of the paedophile call because Sgt Lawrie's wife had received a call from Const Laurie, who was in tears, stating that someone had accused her and Dan of 'downloading' child pornography. f) Entries over Christmas / New Year 2006/07 in which the applicant is noted as having received counselling and noting his doctor said he was fit for normal duties. His firearm was returned on 17 January 2007. g) A number of other complaints were identified, such as not recording an assault (8 July 2008) a missing drug exhibit (10 June 2009) and a failure to provide customer service. h) Other notations refer to the investigation process and the applicant's request for information and further details. · Also annexed to Supt Fehon's affidavit were two Interim Management Plans (IMP) for the applicant dated 5 July 2007 and 25 March 2008. 126 In cross-examination, Supt Fehon was asked if the reason for his own transfer to Manning Great Lakes LAC in August 2009, was a result of criticism of the police over an armed robbery at Lake Cathie. Supt Fehon said his transfer had nothing to do with the incident, he had not been criticised and his transfer was usual police practice of rotating commanders to different LACs. 127 The Superintendent acknowledged that he was not the author of the two s 173 notices or the two s 173 orders. The documents were prepared by the New South Wales Police Legal Services Branch (through their retained lawyers) and sent to him to proof read and correct, if necessary, before signing off on them. Supt Fehon could not recall if he had told the applicant in his office that 'it (the order) has just come through'. Supt Fehon did not know the names of the persons who prepared the notices and could not recall if he had a face to face meeting with the Force's lawyers about the notices. He said that if he had made any changes to the documents, it would be recorded somewhere. Supt Fehon agreed that the applicant had issued a summons to produce any draft reasons for the making of the orders and nothing had been produced. 128 Supt Fehon was asked about the statutory criteria in s 173 of the Act for the making of the order. He agreed 'conduct' and 'integrity' are not in s 173 but are in s 181D of the Act. He was referred to the four criteria for s 181D orders – competency, integrity, performance and conduct. Supt Fehon agreed that in order to comply with the Force's requirement for him to know all policies, procedures and guidelines that relate to his duties, he should know the requirements of s 173 of the Act. Mr Docking further put that the order did not specify that the complaint had, or was being investigated under Div 5 of Pt 8A. Supt Fehon disagreed and said that the issues under a Pt 8A investigation were well known to him and the applicant. He agreed that these were mandatory requirements in s 173(b) but were not referred to in the orders. Supt Fehon denied his actions contravened the Police Code of Conduct. 129 Supt Fehon was asked about his understanding of the words 'must take into consideration' the applicant's written submission, pursuant to s 173(5)(c) of the Act. He could not identify any definition of what the statutory command of 'must take into consideration' meant. Nevertheless, he believed he was required to examine the applicant's response and see if anything in it justified reviewing the proposed order. He said he had also reviewed the complaint investigation files. Supt Fehon said he also spoke to the Investigators and asked them to look at the applicant's response and identify any matters which were of concern or which were inaccurate. The CMT would have also received and reviewed the applicant's response (although no CMT minutes recorded such a review). 130 Supt Fehon deposed that he had discussed the applicant's response with Insp Williams, but he could not recall if he had any notes of what had been said. In any event, nothing was put in feedback which had changed his mind. Supt Fehon added that he believed he sent each Investigator only that part of the response relevant to their investigation. However, he agreed no record of this breakdown was produced, nor was there any record of the feedback from the Investigators. He denied these omissions meant the process was not fair and transparent. Supt Fehon conceded that he could not provide any notes, highlightings or markings related to any of the conversations with the Investigators. Supt Fehon deposed that he had read the applicant's response when it first came in and sent it to the Investigators asking for feedback as to whether there was anything raised by the applicant which would warrant him reconsidering the show cause notice. Supt Fehon said he could not recall what Insp Williams' response was to the applicant's 10 page criticism of his investigation. 131 Supt Fehon said that since the issuance of the orders, he had asked Sgt Williams to prepare a detailed response to the applicant's criticisms which was attached to his affidavit. Supt Fehon had discussed the matter with Sgt Williams at the time. Supt Fehon agreed that there was no mention in his affidavit of him considering Annexure B to the applicant's show cause response. 132 Supt Fehon also agreed he had had no discussion with anyone from the Force's lawyers as to the contents of the show cause notices. He also did not know who exactly had prepared the orders nor did he know what material that person/s had before him/her in preparing the orders. 133 Supt Fehon agreed that in respect to the matters in the second order, the CMT, of which he was the most senior officer, had recommended a Commander's Warning Notice. The later IRP had recommended a reduction from Sergeant Level 7/8 to Senior Constable Level 6. He agreed that no records were produced of either of the IRP's deliberations. Supt Fehon had only noted the outcomes as he understood that a new Police instruction required no minutes to be taken of IRP meetings. However, he accepted that detailed minutes would have ensured the process was fair, open and transparent. Nevertheless, in this case, he believed the process was 'extremely fair'. Supt Fehon was then asked the duration of the IRP meeting, who attended and what was said. He said he could not recall. Supt Fehon noted that not everything is recorded by officers as to what happens on a daily operational basis. 134 Supt Fehon said the IRP and Professional Standards Committee (PSC) looks at 'benchmarking' the reviewable action to be taken to ensure consistency. However, he was not aware of any document which outlined that benchmarking was to be applied. Despite his own recommendation, the Superintendent was made aware of the applicant's ongoing escalation of deficiencies and this had resulted in the more severe sanction. The Superintendent did not know the reason why IRP minutes were no longer taken or why there is no record kept of any 'benchmarking'. Supt Fehon was shown documents which indicate that an Inspector cannot change the IRP's recommendation without putting a written submission to the Director, Employee Management. He did not believe this requirement put added pressure on him as the decision maker to change the decision. Supt Fehon said he did not know if the IRP considered other organisational standards and precedents, whether it had taken legal advice or had considered earlier decisions of the Industrial Relations Commission of New South Wales. Supt Fehon said that the IRP had actually considered a lot more matters than he had actually considered at the time, and it had changed his recommendation from a Commander's Warning Notice. 135 Supt Fehon had taken into account the applicant's own view of himself (excellent service record, a person of good character and high moral fibre), but did not avert to the Industrial Relations Commission's decisions which had considered the relevance of these matters. Supt Fehon accepted there was no reference in the orders to his consideration of the applicant's personal and economic circumstances. However, he deposed that he had taken those matters into account. 136 Supt Fehon agreed that there had been no criminal investigation of the applicant's alleged untruthfulness in his interviews. However, it had been considered. He had had discussions with a number of people at the time. The advice was not to proceed with a criminal investigation of untruthfulness. He accepted that the allegations of untruthfulness had not been put to the applicant in any directed interview. He said that it was not a denial of procedural fairness not to offer a directed interview relating to untruthfulness. Supt Fehon could not answer precisely what the nature of the alleged untruthfulness of the applicant was and said he would need to look further at the Investigator's reports. 137 Supt Fehon accepted that the order does not explain why he rejected the applicant's version of events in respect to the Scowen matter and the other allegations. Supt Fehon denied he had not conducted a proper intellectual process of why he rejected the applicant's explanations. He had considered all the material he had before him. 138 Supt Fehon could not say if he had seen from the Force's records whether the applicant had been given training of custody management. However, he had taken advice about the matter and also in respect to the decision in DPP v Carr (2002) 127 A Crim R 151; NSWSC 194. Supt Fehon said he did not know it was customary practice not to make a custody record in the circumstances involving the young persons. He had accepted the applicant's own admission that 'I should have done custody records'. Supt Fehon denied he had been intent on implementing the IRP's decision, regardless of the applicant's show cause submissions. He accepted that the applicant had identified other officers who had made the same mistake, but who had not been subject to any disciplinary action. 139 Supt Fehon agreed he had made no reference to viewing the CCTV footage of Ms Scowen. However, such footage would normally be viewed by the IRP; but he did not know if it had. The Superintendent understood that there had been two searches of Ms Scowen and he understood the applicant had conceded he had viewed part of it. He acknowledged that he had not mentioned in the order why he chose to reject the applicant's statement that he 'did not watch the strip search and there was no evidence to prove he did'. 140 Supt Fehon was asked about Mr Williamson's recent statement in which he said that the applicant had followed him at the Triathlon, when this had not been mentioned in his earlier statements. Supt Fehon said he had never met Mr Williamson and could not explain why this evidence was included in his most recent statement. He agreed there could be a number of explanations, including that it demonstrated inconsistencies in his evidence. Supt Fehon was also asked about other inconsistencies, such as where the applicant was standing (behind Mr Williamson or beside him). He said that this matter did not, and would not, have changed his opinion. 141 Supt Fehon said the primary purpose of the running sheet he had prepared was concern for the applicant's welfare and so all senior managers whenever they worked with the applicant, would have up to date information to deal with any issues which might arise. He was asked why Insp Williams' first note, dated 10 December 2006, was not made until after the running sheet had been created on 29 December 2006. He said that Insp Williams had made a file note on 10 December, on his own data base and transferred it to the running sheet later. Supt Fehon was asked if what it was alleged the applicant told Insp Williams was correct, it demonstrated misconduct which the Inspector had a duty to report. He agreed the conversation could be construed that way, but there may have been a valid reason why it was not. He agreed this note was not raised at the CMT meeting until July 2007. 142 Supt Fehon was asked when he believed the relationship between Const Laurie and Mr Williamson had commenced. He said he had had other material before him which confirmed it had commenced before the applicant's visit to Flynns Beach and Mr Williamson's workplace (5 and 6 December 2006). He had spoken to the other witnesses about the matter and had taken account of these discussions and the applicant's less than frank responses during his interview. 143 Supt Fehon said he had read the records of interview and the applicant's responses. However, he could not identify the precise question/s and answers upon which he had formed the view that the applicant had been untruthful. He conceded that the issue of the applicant's untruthfulness had never been put to him in his two directed interviews. Nevertheless, he did not consider this to be a breach of procedural fairness. Supt Fehon added that he had not been satisfied that the applicant was truthful when he had said he was at Flynns Beach on 5 December 2006, because it was a known 'hotspot'. Supt Fehon agreed he had not considered the LAC Tasking and Development Minutes of 13 November 2006, which had identified Flynns Beach as a 'hotspot'. 144 Supt Fehon agreed he had not sought to corroborate the applicant's version of events at the Triathlon with Mr Lenthal. He also agreed that the CMT believed the incident at Shades' Café contained a strong inference of harassment, but that the evidence was inconclusive. He said he had taken account of all the advice he had received and the evidence of the other incidents at the Triathlon and Mr Williamson's workplace. Supt Fehon said that despite what Mr Skinner had said about the applicant having attended the CTTT in full police uniform, he had found that Mr Skinner had felt harassed by the applicant attending the CTTT in part uniform. 145 Supt Fehon acknowledged that he had attended a function at Finnian's Irish Tavern at which Insp Heap and other Sergeants had been wearing cargo pants and boots. He had subsequently counselled Insp Heap for not demonstrating an example, but he did not take any other action because no member of the public complained or felt harassed and he had not wanted to spoil a fair and proper social gathering of the officers. Supt Fehon agreed that it might be reasonable for the applicant to have attended the building site in his meal break, if he had told his supervisor what he was doing. The applicant had not done so. 146 Supt Fehon confirmed that the applicant was not sent to the Police Academy as an Assessor because of concerns that Const Laurie was there and it would have been a conflict of interest for him to assess a former partner. He also confirmed that the applicant had not been allowed to act up, as this interim action was part of the plan which had been put in place. Supt Fehon also confirmed that Const Laurie's statement, the running sheet, the CMT minutes and a number of other documents had not been provided to the applicant at the time he prepared his responses to the notices. 147 In re-examination, Supt Fehon explained that the running sheet was created from a blank format and he had invited other officers to add details, because of genuine concerns with the applicant's welfare. As different supervisors would be on at different times, a centralised document would assist in following the applicant's progress. He said he had asked for officers to add their contributions to the running sheet from around 29 December 2006. 148 Supt Fehon said that he had read all the notices and orders before he signed them and what they contained were his own views and conclusions. In reply 149 The applicant said that there was information he had provided that would change the Superintendent's findings in the s 173 notice and order. He further believed that he was denied procedural fairness by not being provided with the complainants' statements. He said that Supt Fehon had relied on documents about allegations and issues which had not been investigated, nor had he been spoken to about them. He was also denied access to the 2006/07 Weapons Training Standards. 150 Insp Williams joined the NSW Police Force in 1997 and progressed through the ranks to his current position in December 2006. As an Inspector, one of his roles is to oversee and investigate complaints made against other police officers. He also sits on the CMT. Insp Williams conducted the Investigation into the 12 issues identified in the applicant's first notice. Attached to his first affidavit was the originating complaint made by Mr Williamson on 17 December 2006, as prepared by Sergeant James Gilmour ('SC Gilmour'). The complaint was recorded as follows: About 3pm, 17.12.06, Daniel Williamson attended Port Macquarie Police Station requesting to speak to a senior officer in private. He stated he was being harassed by Sgt Robert Whyte, attached to Port Macquarie Police Station. Williamson has recently started a relationship with, Nerida Laurie, the ex-girlfriend of Sgt Whyte. He detailed the harassment as follows: Approx 2 weeks ago, Sgt Whyte attended Tri Steel, Port Macquarie, and Williamson's business. Sgt Whyte made enquiries about purchase of a steel shed with an employee. He requested to speak with the owner. Upon meeting Williamson, he started asking questions about Williamson's private life, about his marital status and his children. Williamson refused to speak about this subject and requested Whyte leave, which he did. Sgt Whyte was not in uniform at this time. On Sunday 10.12.06, Williamson was working as a volunteer for the children's triathlon in Port Macquarie. He was situated on the Town Green directly opposite the Police station. Sgt white walked up and stood behind Williamson at a distance of approx 1 metre or less for approx 30 mins. Nothing was said and Williamson avoided eye contact with Whyte. Sgt Whyte was dressed in police overalls at this time. About 8:45am, Monday, 11.12.06, Williamson was having breakfast at Shades café in Clarence St, Port Macquarie. He was seated at an outside table. Sgt Whyte drove his personal vehicle back and forth past the café numerous times looking directly at Williamson. Sgt Whyte was not in uniform at this time. About 12.30pm, 17.12.06, Williamson received a call from a private number on his mobile phone. The male called said, 'You're a fucking paedophile. I'm gonna take you to pieces bit by bit.' The call was then terminated. Williamson did not recognise the callers voice and stated he could not honestly say the called was Sgt Whyte, however, as he has never received calls like this in the past, he firmly believes the caller was Sgt Whyte. COMMENT: Williamson was adamant he wished only that Sgt Whyte cease this behaviour towards him. He does not wish to take the matter further. He was informed the matter would be referred to the CMT for adjudication. 151 Insp Williams spoke to Mr Williamson on 16 January 2007 (after two earlier failed attempts to do so). Mr Williamson confirmed the details of his complaints against the applicant, but said he did not want the complaint to go any further; rather, he just wanted the applicant to stop his behaviour towards him. Later that day, Mr Williamson signed a letter to the Police indicating that as there had been no contact with the applicant in the last few weeks, he was satisfied with the police action and he now wished to withdraw the complaint. He had said: On 17th December 2006 I attended the Port Macquarie Police Station and spoke with Sergeant Gilmour concerning issues I had with Sergeant Robert Whyte. I have recently formed a relationship with Sergeant Whyte's ex-girlfriend Nerida Laurie and for a short period of time there were issues involving Sergeant Whyte attending my business premises, making enquiries about purchasing a steel shed. Other issues involved Sgt Whyte standing behind me at Port Macquarie's Town Green during the children's triathlon. Nothing was said by Whyte, who was dressed in police overalls. Other incidents involved him driving past Shades café where Nerida and I were having breakfast and a call on my private phone where the male caller said, "You are a fucking paedophile. I'm gonna take you to pieces bit by bit". The call was then terminated. I was not able to recognise the caller's voice. At the time the report was made to Sergeant Gilmour, I only wanted this behaviour from Sergeant Whyte to cease and did not wish to take the matter further. Since that time, there has been no adverse interaction between Sergeant Whyte, myself or Nerida Laurie. As such I wish it known that I do not want any further action to be taken in relation to these matters and, further, I withdraw the complaint that was made originally. I am aware that if the behaviour continues or resumes, I will consider taking further action. 152 Insp Williams said he knew, at the time of the complaint, that Const Laurie and Mr Williamson were in a relationship. He had undertaken an inquiry into the anonymous phone call to Mr Williamson and identified the call location (a public phone) but could not identify the caller. Insp Williams had an informal chat with the applicant in early February 2007, because Mr Williamson had withdrawn his complaint. After he had put each of the allegations to the applicant, he had responded as follows: a) Mr Whyte attended Mr Williamson's workplace in December 2006 to make a personal enquiry about purchasing a shed. He spoke with a salesperson and was introduced to the owner, Mr Williamson, by the salesperson. Mr Whyte asked Mr Williamson general questions concerning how long Mr Williamson had been living in Port Macquarie, but denied asking specific questions relating to Mr Williamson's marital status or his children. b) On Sunday, 10 December 2006 Mr Whyte was standing on Town Green watching the children's Triathlon and recalls speaking with a member of the Fire Brigade about various matters including fishing. He was not aware that Mr Williamson was in the vicinity and therefore did not speak to him. Mr Whyte stated that he was only at the location for ten or fifteen minutes. c) Mr Whyte recalls that at sometime in early December he was driving along Horton Street and Hayward Street, Port Macquarie in the early morning while attempting to locate a specific shop which he had not seen before. He admits to driving up and down Horton Street a number of times in an effort to locate the premises but denies seeing Mr Williamson at Shades Café. He stated that at the time he did not know of the exact location of Shades Café, which is Horton Street and not Clarence Street as stated by Mr Williamson. 153 Insp Williams prepared a report of his enquiries and provided it to the Executive Officer of the CMT. The Executive Officer said she would obtain an audit report of the applicant's COPS access over the period 14 November to 20 December 2006. This report was annexed to the Inspector's affidavit and disclosed the access in relation to Mr Williamson's vehicle on 5 December 2006, in which was noted 'sus vehicle port' (suspicious vehicle in Port Macquarie) and three other accesses that day relating to Mr Williamson. Insp Williams said that in light of Mr Williamson's complaint 'our suspicions were raised about the legitimacy of Mr Whyte's COPS access and conduct towards Mr Williamson'. A full internal investigation was initiated. As part of his investigation, Insp Williams obtained the applicant's diary and rosters for 5 and 6 December 2006. He also spoke to Const Laurie who provided a statement on 28 February 2007, in which she said: … I know Robert Whyte and have known him for about five years. We had been in a relationship together for about four and a half years. We lived together for the last eighteen months of our relationship. That relationship ended towards the end of August 2006 but he kept saying "No, I'm still your boyfriend". That went on for a while but it really didn't worry me. … I didn't meet Daniel Williamson until the middle or the end of November, it was around the trials for the Ironman competition. It wasn't until the start of December until we started seeing each other. I went to Goulburn Police Academy for a residential week towards the end of November and the relationship with Daniel started after that. It was in the first week of December that I started my relationship with Daniel. There was a lot going on in my life at that time because of the Academy and because a friend of mine Danny Roods committed suicide and I had recently moved into the townhouse at Flynn's Beach. Rob Whyte new (sic) I had moved into the townhouse at Flynn's Beach and I gave him the opportunity to get back together before I moved in. That was Fathers day 2006. I rang him on the Friday and asked him if that's what he really wanted. He rang me on Fathers Day and we ended up at the top of Town Beach in a car and we ended up fighting so I just went home. He knew then that I would never live with him again. … Rob was handling our break up fine until he found out I was seeing someone else. I don't know how he found out or who told him or when he found out. After a while he started asking questions about Dan. I told him it was none of his business. I found out that he went round to Dan's work at Mid Coast Garages. I think Dan must have told me. Dan told me that Rob had spoken to the receptionist. At first, Dan didn't know who Rob was, but he worked out who he was. Dan was on the phone when Rob walked in but Dan stayed on the phone when he worked who it was because he didn't want to talk to him. The receptionist approached Dan and said words to the effect, "This guy really wants to talk to you". Rob apparently said something about the fact that he was looking at a block of land in Lake Cathie and he wanted to build a shed. Dan told Rob to take his business elsewhere. An incident took place during the junior triathlon, I can't recall the date. I was with Dan in the morning as he was directing the children during the bike leg of the triathlon. I left a short time later and I was later told by Dan that he had seen Rob Whyte at the Triathlon and that Rob Whyte stood beside Dan. As a result of that information I rang Rob and said, "What's happening, what was going on?" Rob said, "Do you know how hard it was to see you standing there with that bloke". I said words to the effect, "Yes it must be hard but you just have to accept it". 154 Insp Williams, together with Insp Heap, conducted a directed interview with the applicant on 28 February 2007. He denied all of the allegations. The record of interview was annexed to the Inspector's affidavit. Insp Williams and Insp Heap considered there were 'many inconsistencies' in the information provided by the applicant in the interview. Insp Williams reviewed the COPS audit and found an entry in respect to a Ms Karen Thrush and a dispute with Mr Williamson over the construction of an on site garage in 2002. Mr Williamson had been ordered from Ms Thrush's property when he was taking photographs and the dispute was referred to the Police. No action was taken and the incident was recorded as 'Remain on Enclosed Lands' (trespass). Insp Williams thought it was odd that the applicant was making a general search of Mr Williamson when the issue had nothing to do with a suspicious vehicle. 155 Insp Williams spoke to the receptionist at Mid Coast Garages, Ms Joan Barlow, on 6 March 2007. In her statement she recalled the visit by the applicant to the workshop (in early 2006) and said: The name 'Rob' seems to ring a bell. I spoke to Daniel, I said, "Daniel would you like to meet Rob?" They shook hands and said, "How are you?" The conversation was then all about sheds. As I was standing behind my desk I was totally listening to the conversation and I don't recall any questions being asked by Rob of a personal nature. The conversation was not out of the ordinary just like a normal customer. Rob was here for about ten to fifteen minutes and when he left Daniel come (sic) back into his office and I started to work on Rob's quote. About five minutes later Daniel said to me, "Don't worry about the quote." I said "Why?" He said "That was Nerida's ex". Daniel had not been going out with Nerida for very long at that time maybe a couple of weeks. I thought afterwards that Rob had turned up at work, not to check out the prices of sheds, but to check out Daniel who was going out with Rob's ex girlfriend Nerida I don't know her last name. 156 Insp Williams also took a statement from Mr Williamson. In it Mr Williamson said: … On 2nd December 2006 I attended an engagement party. I attended the party by myself. I know Nerida was going to be there. Nerida and I had been going out together for a couple of weeks before that. … About the 5th or 6th December 2006 I was at my business premises at 29 Uralla Road PMQ when I saw Rob Whyte enter my premises. He was spoken to by my receptionist Joan Barlow. When I saw him I instantly recognised him as Nerida's ex-boyfriend. I knew he was a police officer but he was in plain clothes and not in a police car. I heard part of the conversation between him and Joan. He was talking about buying a double garage. Joan came in to me and said, "There is a fellow out here who wants to meet you." This happens about one in ten customers, usually if it's something Joan can't answer. Joan introduced us and said, "Daniel this is Rob, Rob this is Daniel." We shook hands and I spoke about him wanting to buy a shed. Most of the details were already written down by Joan. He mentioned that a block of land in Lake Cathie or Laurieton, I'm not sure. I said, "I will get this quote out to you." His name and address were on Joan's papers. I made to turn away to come back into my office, as I did Rob Whyte said, "How long have you lived in Port for?" I said, "About 15 years". He said, "Do you live in Flynn's Street because I see your car parked there quite a bit." I said, "No, I don't live in Flynn's Street." I didn't tell him where I live. He then said, "Do you have any kids?" I said, "Yes, I have one daughter". He wasn't blunt, arrogant or rude. I said, "O.K. We have your details, we'll get your quote out to you." I walked back to my office and when I looked back, he was gone. I went back out to Joan and said, "Do you know who that was?" She said, "No." I said, "That was Nerida's ex." She said, "Oh I wondered why he asked those questions." I said, "Don't worry about sending the quote." The quote was never sent and I have not heard from him regarding the quote. The next time I saw him was on the 10th December 2006 at the triathlon in PMQ when he stood beside me but neither of us spoke or made eye contact. There were a number of fire brigade people nearby. The next day Mon 11th December 2006 I was having breakfast at Shades café, now known as "Sassy's". Is ay Rob drive past in a private car a number of times. I had parked my car in the centre parking bay and it was quite visible at that time because there were not many cars in the street. 157 Insp Williams reconsidered all the material he had gathered and determined that there were numerous inconsistencies in the applicant's response and 'a number of things just did not add up'. A second directed interview was held on 13 March 2007. 158 Insp Williams arranged to review the transcript of the police radio broadcast of December 2006. It appeared that the applicant's inquiries went further than the standard request when he had asked for the registered owner's specific address. Insp Williams also obtained photographs of Mr Williamson's vehicle. It was electric blue with the business contact details very clearly displayed on it. He found it difficult to see how the applicant had believed the vehicle was suspicious. 159 During May 2007, Insp Williams gathered all of the relevant documents for his Investigator's report. He completed three reports, because part way through preparing the first he had remembered a conversation with the applicant at a Christmas Party on 10 December 2006. The applicant had said words to the effect of 'I broke up with my girlfriend, Nerida Laurie, recently. We went out together for about 4 years. She has formed a relationship with another man now. I went to her new boyfriend's work place the other day to check him out, but pretended that I was there getting a quote for a shed'. 160 Insp Williams claimed that he made the following file note the next day when he returned to work: During the Port Macquarie Christmas function I was approached by Sgt Whyte and had a general conversation. This conversation quickly revolved around Rob Whyte telling me about his recent break-up with his girlfriend, Nerida. Their relationship had lasted for four years and had abruptly come to an end. Rob stated that Nerida had formed a relationship with another man and that Rob had attended the workplace of the new boyfriend to 'check him out' under the pretext of obtaining a quote for a fence or a shed/garage. He told me that he was 'depressed' but was not going to see a Doctor or take medication at that stage. He acknowledged that he should have raised this matter with the applicant during the investigation but said ' it completely slipped my mind '. Nevertheless, he believed it was important. Insp Williams said he raised the matter informally with the applicant after July 2007. All the applicant had said was that he should have raised the matter during the investigation. Insp Williams noted that the applicant did not deny or attempt to clarify the conversation at that time. Insp Williams could not recall saying that the applicant ' could confide in him' in the conversation of 10 December 2006. It would be strange for him to do so, given he did not know the applicant very well at the time. 161 Insp Williams was not involved in the subsequent issues which formed the basis of the second of the show cause notices. However, he had made a response to the applicant's criticism of his investigation. (In cross-examination, he agreed this was prepared after the orders had been issued and for the purposes of these proceedings.) 162 Insp Williams responded specifically to the applicant's claim that it was common practice for outstation crews to be in the Port Macquarie sector. He agreed there may be legitimate policing reasons why this occurs. However, it is not common policy, nor is it acceptable to go outside your immediate sector of work for personal reasons, such as obtaining a meal. If a family emergency arises requiring the officer to leave his/her area, the officer should inform their shift supervisor. 163 In respect to claims of Flynns Beach as a 'hotspot', Insp Williams conducted a COPS inquiry of break and enters, robberies and home invasions for the period of 1 November to 5 December 2006. There was one break and enter (out of 13 in the Command) and no robberies or home invasions. He said Flynns Beach was not a 'hotspot' for these crimes. 164 Insp Williams said it was not until his directed interview, that the applicant admitted he was 'in the street, a distance up the road from Nerida's house'. Insp Williams said that the COPS audit indicated the applicant had made two 'firearms enq' of Mr Williamson on 5 and 6 December 2006, despite the applicant's assertion that he had made only one inquiry - 'sus vehicle in port'. There was no reason for the firearm request, nor was the COPS access noted in the applicant's notebook. 165 Insp Williams denied the applicant's assertion that Issue 5 was not sustained. It was identified in the show cause notice and the order. He also denied that during the investigation, the applicant had nominated witnesses to support his version of events. Had he done so, they would have been interviewed. The applicant was simply wrong to say that Const Laurie and Mr Williamson were not interviewed. Insp Williams said he conducted his investigation in an independent and objective manner, based on the evidence. At no stage, had he told the applicant that he 'felt ill equipped to conduct the interviews'. 166 In a supplementary affidavit, Insp Williams referred to the running sheet created by Supt Fehon. He said the Superintendent had told senior management to record any details of their dealings with the applicant. His name appears against a number of entries on the running sheet. 167 In cross-examination, Insp Williams was shown the Mid North Coast LAC Tasking and Development Minutes. The minutes of the meeting of 13 November 2006, indicate the following: "Crime mapping over the past week shows the CBD as a hotspot, moving back from the West Port area where it was last week. Other areas include Flynns Beach and Muston Street area". Insp Williams said he had not looked at these minutes before preparing his affidavit. However, he still did not believe the yellow imaging identified a 'hotspot'. 168 Insp Williams agreed that he could not recall if Supt Fehon had asked him to comment on the applicant's response to the show cause notice. 169 Insp Williams said it was possible to check the Force's computers to establish when a particular document was created. He agreed the first time the Christmas Party conversation was mentioned was at the CMT meeting on 9 July 2007. Insp Williams could not recall the applicant saying that he had 'just found out the day before that his ex-girlfriend may have been seeing someone'. He may have said 'I thought we were working things out'. He denied the applicant said he did not know who Const Laurie was. The applicant had said he had 'checked him out'. He said that what he recorded in the file note was the truth. 170 Insp Williams said he had an informal conversation with the applicant because he was entitled to know a complaint (which had been withdrawn) had been made about him and to give him an opportunity to offer his version of events. Insp Williams said he did not see a shop identified by the applicant in the complaint about Shades Café, nor had he followed up with Mr Lenthal as to what he said occurred at the Triathlon. In reply 171 The applicant was concerned that as a result of Mr Williamson withdrawing his complaint, he had been told that the complaint had not been sustained. The applicant questioned why Insp Williams would wait two months to talk to him about his alleged adverse behaviour. Insp Williams had made reference to a phone call incident, which had also been found not to be sustained. 172 The applicant said he had never had any dealings with Ms Thrush who had been involved in a disagreement with Mr Williamson. Ms Thrush had only arisen when he made a COPS entry in respect to Mr Williamson. 173 The applicant contended that requesting a registered owner's address for a suspicious vehicle was normal practice. The applicant rejected Insp Williams' view, that the vehicle could not have appeared suspicious because of its colour and business details. He said that, from his experience, many commercial vehicles are used in criminal activity. The applicant questioned why the so called significance of the 10 December 2006 Christmas Party conversation was never mentioned during his two records of interview and the Inspector only remembered it seven months later. The applicant believed that the Inspector's entry on the running sheet was designed to 'patch up a huge hole' in his Investigation. He particularly noted that no other note or computer entry was recorded anywhere of any other conversations between them. The applicant maintained that he had been misquoted and taken out of context. Parts of the conversation were omitted such as that he found out his former girlfriend was seeing someone else. However, he said did not know who it was until days later. 174 The applicant complained that Insp Williams had not informed him of the outcome of the Investigation and, in fact, Supt Fehon had apologised to him for not being told. The applicant complained that Insp Williams had relied on a report from Sgt Gilmour who was not even a first hand witness to any of the issues raised. 175 The applicant said that the distance from the sector boundaries to his residence was 10km, not 20km (as said by the Inspector). He said he had never been told it was unacceptable to go outside operational boundaries to obtain a meal. It was a commonly accepted practice. 176 The applicant said that he did not record firearm enquiries on the COPS entry and that Insp Williams had failed to mention that Flynns Beach was an identified crime 'hotspot'. 177 The applicant queried why Const Laurie and Mr Williamson were not re-interviewed until almost three years after the incident. He disregarded Const Laurie's evidence as to the date they had broken up, and claimed Mr Williamson's recollections of dates was misleading and confusing. 178 Insp Heap joined the New South Wales Police Force in 1990. He has held his current rank since January 2004 and has known the applicant since 1995. Insp Heap is presently stationed at Richmond LAC. 179 Insp Heap said that on 18 December 2006, Const Laurie contacted him and asked him to meet her at her workplace, PRD Realty. During this meeting, Const Laurie complained that the applicant had made multiple phone calls to her and had driven past her house 'a lot'. She was concerned that as a trainee police officer, the applicant would attempt to influence her posting and duties. She explained that the applicant had not been rude to her, but just kept asking about getting back together. He had also recently visited her new boyfriend's work and asked questions about his family. Const Laurie indicated she did not want an Apprehended Violence Order (AVO) taken out against the applicant - just that he stop his conduct. Insp Heap undertook to speak to him. 180 Insp Heap spoke to the applicant the same day. The applicant confirmed their relationship was over; but denied doing what Const Laurie had claimed. He said it was she who was contacting him. Insp Heap reminded him to remain professional, and if he had been contacting her or driving past her house, he was to stop doing so. During this discussion, Const Laurie actually called the applicant and the following exchange was said to have taken place: Ms Laurie: "Please Rob, please stop calling me and driving past my house. I really have had enough. I just want to move on with my life. You also called Dan the other day – I can't believe you would do that. This has got to stop Rob, we both need to move on with our lives." Mr Whyte: "I haven't been driving past your house or calling you all the time – I just want a chance to discuss things with you properly. I promise you on my mothers dying oath I didn't make that call to your boyfriend." Ms Laurie: [Ms Laurie takes a deep breath] "Rob, I've seen you driving by my house – even the kids have seen you driving by. It's got to stop. You just need to move on with your life and let me get on with mine too". Mr Whyte: "Ok". 181 Insp Heap observed that this conversation confirmed what Const Laurie had told him earlier. He asked the applicant if he had visited Mr Williamson's workplace. He agreed he had but only to get a price on a shed and in his own time. Insp Heap said he did not believe the applicant and it was highly suspicious that the applicant just happened to attend Const Laurie's new boyfriend's workplace and start asking questions about his family. 182 Insp Heap said that on 27 December 2006, he was contacted by the applicant who seemed very low and depressed. He told him that he had heard Const Laurie was seeing a SC Prott and he had felt 'a bit flat' about this. Although he requested the rest of the week off, he turned up for work in any event. 183 Insp Heap said that on 28 December 2006, he received a call from a friend of the applicant, Sgt Lawrie. They had had the following conversation: Mr Lawrie: "Hi Mick, I'm calling because I am concerned about Rob Whyte. I think he has really lost the plot. He's a friend of mine and I just want to raise these concerns with you because I am worried about him". Me: "What's the problem?" Mr Lawrie: "It's his behaviour since he broke up with Nerida. Nerida has been speaking to my wife and has told her a few things: § Rob attended the workplace of Nerida's new boyfriend a couple of weeks or so ago and asked him a lot of questions regarding Nerida. § I know a week or so ago Nerida's boyfriend, Dan, received a call from someone alleging that he is a paedophile. § Someone has also made an allegation that Dan and Nerida were downloading child pornography from the internet and there's a strong inference that it was Rob who made the call to Dan and the allegation. § Rob visited Nerida's grandparents recently and showed them a pamphlet with a wedding ring and told them that he was going to ask Nerida to marry him. This is a bit off given that Rob doesn't know Nerida's grandparents very well and he never made any mention of marrying Nerida in the past. § I have also heard that Rob told Sergeant Gilmour earlier today that he had been doing surveillance on Senior Constable Mick Prott as a result of admissions by Mr Prott that he had been sleeping with Nerida. Rob then followed Mr Prott from his place to a restaurant where Mr Prott met a lady and Rob contemplated speaking with the lady to let her know about Mr Prott's promiscuous behaviour. I have also recently been involved in an incident with Rob where he came to the Wauchope races because (sic) when I was there with my wife and Nerida and he reckoned that I invited him. I never invited him. Nerida had to leave the races because she was concerned that Nerida (sic) was following her. (Mr Docking objected to this evidence as hearsay on hearsay.) 184 Insp Heap attended both of the applicant's directed interviews and asked most of the questions. He said, at one point during the second interview, he noticed the applicant looking down at some of his notes which contained answers already given by the applicant during the first interview. After doing so, the applicant added some additional information which had actually been written in the notes. The applicant denied looking at Insp Heap's notes during the interview and said he could not see them anyway. Insp Heap considered the applicant's responses to a number of questions as either, entirely untruthful, or at best, an embellishment of the truth. The applicant's looking at his notes confirmed his view. Insp Heap could not say if the notes he had made before the second interview had been destroyed. However, he could not produce them. 185 Insp Heap said that when Senior Constable Jacqueline Isbel ('SC Isbel') was relieving EDO for the applicant in 2007, she informed him of a number of deficiencies in the applicant's performance of the EDO role. This was confirmed when he made further inquiries and he found the applicant was not entirely truthful when he said everything was going well and on track. Insp Heap issued the applicant with a directive memorandum in May 2007. The applicant responded in June and a meeting was held with the applicant, Insp Loughland and himself on 28 June 2007. Insp Heap said he had 'a strong view that Mr Whyte was an untruthful man' and he had strong concerns with his honesty and integrity. Insp Heap said that during this meeting, he had clearly explained the applicant's deficiencies and what he was required to do to improve. 186 In cross-examination, Insp Heap agreed that the material in the phone call from Sgt Lawrie (see par 183) would be inadmissible evidence in a criminal matter. 187 Insp Heap was asked about an incident in the back of a police vehicle during a social occasion, in which he had punched another officer. He agreed he had done so, but it was in self-defence, and it was not the reason why he had been transferred. The matter had been investigated. He had been found to have been intoxicated and his conduct was a breach of the Code of Conduct. Insp Heap further denied that he was transferred because of allegations of poor performance. 188 Insp Heap believed he made a note in his diary of the conversations with Const Laurie and Sgt Lawrie in 2006. However, he could not find his 2006 diary and had relied on his recollection. 189 Insp Heap reiterated that he believed the applicant had been untruthful and that the issues should be thoroughly investigated, so as to ensure procedural fairness. Allegations should be put directly to the officer in a directed interview. Insp Heap said he had done so at Q116 and Q117 of the interview. Insp Heap confirmed that he could not produce the original unedited versions of the applicant's records of interview. 190 The applicant explained that he had not signed the record of interviews because copies had not been provided to him and he suspected they contained incorrect information. Insp Heap said it was a common practice not to provide a copy of interviews until after the investigation is completed. Nevertheless, Insp Heap had watched the applicant read the records of interviews and he had not identified anything which was incorrect; nor did he say he refused to sign them because they contained incorrect information. 191 The applicant complained that the interviews had been edited and appeared to be 'doctored' or 'incomplete'. Insp Heap had merely instructed Insp Williams to correct spelling and grammatical errors. Nothing of substance was changed, nothing was missing and they were exactly as they appeared. 192 The applicant further complained that Insp Heap did not sign the record of interviews immediately after they had concluded. Insp Heap said he had read and signed the first interview of 1 March 2007, later that day, as he had to leave the office earlier. The second interview was read and signed the same day. Nothing of substance had changed and he was confident each of them was 100% accurate. Moreover, the applicant had never suggested what parts of the interview he considered to be inaccurate or incorrect. 193 The applicant complained that he had not been asked to indicate if the record of interviews were a true and correct record. This was missing, as is the instruction to Insp Williams to format the record of interviews. Insp Heap agreed, but said that the records of interview were 100% accurate. 194 The applicant complained that he had commenced a parallel proactive investigation into inappropriate access of the COPS system. There was no evidence that he had done so inappropriately. Insp Heap noted that the notice and the order do not indicate that there was no evidence of inappropriate COPS use; indeed, quite the contrary. 195 Insp Heap noted that the applicant had agreed that he had not let him down as to his support during his EDO duties. Insp Heap said that the applicant had never raised any issues of Mr Williamson harassing and stalking him. Insp Heap said he had been asked by Supt Fehon to enter any details into the running sheet of interactions with the applicant and he had done so where his name appeared against a particular entry. In reply 196 The applicant complained that Insp Heap's statement had never been provided to him and did not form part of the evidence in the decision making process. 197 The applicant said he had never received a text message from Const Laurie stating 'Please stop calling me Rob'. The applicant said he had no idea Const Laurie would be attending the races at Wauchope and it was coincidental their paths had crossed. He denied undertaking surveillance on SC Prott or that he followed him home. He was in the CBD when he saw SC Prott, but had not approached him. 198 The applicant denied he was untruthful during his interview. The CMT had never detailed these allegations of untruthfulness, nor put them to him. He denied he was an untruthful man. 199 Const Laurie joined the New South Wales Police Force in 2006. Attached to her affidavit was the statement she provided to the Force dated 28 February 2007. 200 Const Laurie said that after she and the applicant broke up, at the end of August 2006, it appeared that he had difficulty coping with, and accepting, the break-up. She tried to remain friends with him. Const Laurie said towards the end of 2006, when she was working at PRD Realty, she and her colleagues had observed the applicant standing outside her workplace. On one occasion, when she left the office, the applicant had approached her and showed her a picture of an engagement ring on his mobile phone. He had said something like 'I bought this engagement ring for you, if you ever want it, just let me know'. She could not remember her reply. She had not wanted to make an enemy of the applicant - just for him to leave her alone. Const Laurie said that after the break-up, the applicant seemed to turn up just about everywhere she was, as if he knew where she was going to be. However, she would leave and avoid speaking to him. She also said her children told her they had seen him drive past their house, on more than one occasion. 201 Const Laurie corroborated what Insp Heap had described when he met her at her workplace on 18 December 2006. She had not been fearful of the applicant, but his frequent contact with her was 'very frustrating'. 202 Const Laurie referred to the occasion when Mr Williamson told her the applicant had visited his workplace and asked questions about his daughter. She had rang him and she was furious with him. She may have sworn at him. She described his explanation (of getting a price for a shed) as 'bullshit' and told the applicant to 'stay away from Dan'. She did not believe the applicant was genuinely interested in purchasing a shed. 203 Const Laurie said that in late 2006, her grandmother told her that the applicant had visited her home in Wauchope. He had arrived uninvited even though she had not known him very well. He had asked what he could do to get her back and showed her a picture of an engagement ring. Her grandmother told him to leave her alone and get on with his life. 204 Sometime in 2007, Const Laurie said she had visited SC Prott in Wauchope in her own car. When she left, she had observed the applicant driving behind her. She later phoned the applicant and asked him why he was following her. He said he had been visiting a girlfriend in Wauchope and had then said he was at the Hastings Hotel in Wauchope. She believed this was very odd behaviour. SC Prott had also told her the applicant had approached him and asked what he was doing with her and that their conversation was quite heated. 205 In cross-examination, Const Laurie could not remember the farewell party for Inspector Giles in October 2006 (see paras 67 -69). She agreed that Const Pacey may have dropped them both off, but she said the applicant had been harassing her and she had started to walk home when they picked her up at the top of Town Beach. They had an argument outside her home. He definitely did not stay the night. She also denied that the applicant stayed at her house and that they slept together on the night of her friend's birthday party on 30 or 31 October 2006. 206 Const Laurie did not deny that the applicant may have returned her property on 9 December 2006, and that Mr Williamson's car had been parked outside. However, she denied that she and the applicant maintained an intimate relationship until November 2006. She denied retaining keys to his residence and denied that she was free to come and go as she pleased. However, she did agree the home phone number had remained in her name. Const Laurie was asked about the encounter with the applicant on Melbourne Cup Day 2009, at Finnian's Tavern. She said he had approached her and began hassling her. 207 Const Laurie agreed she had visited the applicant after her break-up with Mr Williamson. However, she was not 'in tears'. She denied telling him the break-up was over her joining the Force and that Mr Williamson was a frequent ecstasy user. She denied saying to the applicant 'I know you wont want me back after everything I have done to you'. She denied telling the applicant she hated him for commencing a relationship with a Ms Therese Steele. She further denied commenting on the new relationship a few days later. Const Laurie said she could not recall turning up in tears at the applicant's doorstep after breaking up with another Sergeant in April 2008, and in fact they had not broken up at that time. 208 In re-examination, Const Laurie explained what occurred at Finnian's Tavern on Melbourne Cup Day 2009. She had been talking to another police officer at the bar when the applicant started hassling her. She had told him to leave her alone. Even the barman had asked her if she was 'okay'. The applicant left her when his girlfriend arrived. In reply 209 The applicant noted that both Const Laurie's and Mr Williamson's statements were taken almost three years after the original incident. 210 The applicant insisted his relationship with Const Laurie ended on 19 November 2006, when he visited Const Laurie and ended their relationship because it was not working for him. They had both cried. Although she had moved out in August over issues involving the children, they maintained an intimate relationship until after November 2006. She had his house keys and came and went as she pleased. He had given her money for various things, including car repayments and accommodation at the Police Academy. 211 The applicant said that he had never attended Const Laurie's workplace without ringing her first. He denied turning up everywhere she was, and, in any event, Port Macquarie is a small town with limited venues. He said that she had failed to mention that he was often at venues before she arrived. She had even invited him to the pub for drinks for her birthday in March 2007. 212 The applicant said that he and Const Laurie were in frequent phone contact after 19 November 2006. He agreed she had phoned him on 7 December 2007, and was angry. She had only asked what he was doing in her street that night. He said he just wanted to see her – 'what's the problem?' She had said 'nothing just the kids'. The applicant said he had also asked her if she had a new boyfriend yet. 213 The applicant said he only knew of Mr Williamson's involvement 'in my private life' on 9 December 2006, after Mr Zaicew told him the night before and he had visited her to organise a return of her property. When he did so, he saw Mr Williamson's vehicle in her driveway as it was the same vehicle he had seen parked in her street the week before. The applicant said that he had sought medical treatment for feeling sad and depressed, but no medications were prescribed. 214 He agreed he saw Const Laurie's grandmother, Jean, in her front yard while he was attending an unrelated police job. He had stopped to wish her a Happy Christmas and told her he was sad at their break-up. He agreed he had showed her a picture of an engagement ring. He had thanked her for letting Const Laurie and her kids stay after she had moved out, but then learnt that this was not the case. He believed this confirmed that Const Laurie had been lying to him again. 215 The applicant denied following Const Laurie in her vehicle at Wauchope. He had been visiting a girl there and Const Laurie had phoned him later and was very jealous. 216 The applicant believed that Const Laurie's relationship with Mr Williamson had ended because she had wanted to be a police officer and he was a regular ecstasy user. He claimed that they had resumed a casual intimate relationship before she went to the Academy in May 2007. She had said she was paranoid about anyone finding out and would take steps to ensure that no one would see her car at his place and she had insisted he tell no one they were socialising together. 217 The applicant said that Const Laurie was not working before going to the Academy and he had lent her $5,000. He stated that when she was at the Academy, they would ring each other, nearly every day, mainly discussing her work or finances. When she returned in September 2007, he said he regularly went to her house to assist her with her student assignments. The applicant said they remained friends for the next couple of months. During this time, she had told him of some scuttlebutt and rumours that she was having sexual relations with several male officers at the Kempsey Police Station. In October 2007, she asked him for $2,000, which he now strongly suspected had been used to fund her daughter's trip to Fiji, after completing Year 12. 218 The applicant said that in January 2008, he commenced a relationship with another officer, Ms Steele, who was stationed, coincidentally, at Kempsey Police Station. Const Laurie had told him she hated him going out with her and she was not coping with it. However, within a week, she had commenced a new relationship with a Sergeant at work and had moved in with him. A couple of months later, she had turned up at his doorstep, in tears, saying they had broken up. He had told her that she should not have come over, because he was in a relationship with Ms Steele. He said she had demanded to know if Ms Steele had moved in, because she had seen her car parked there. He thought this observation was odd as he lived in small laneway, and there was no reason for her to drive past. The applicant provided details of the various amounts of money he had either loaned or given to Const Laurie. He said she had stopped paying him back and had told him in a 'verbal tirade of abuse' to go and see a solicitor. 219 The applicant said that he now believed Const Laurie had lied and deceived him and that she is a very calculating and manipulative woman – not the sweet, innocent victim she portrays herself to be. She had been nice to him when he was helping her and giving her money, but had now ignored him. Moreover, he said that Const Laurie had never witnessed any of the alleged incidents and she only said what someone else had told her. 220 Mr Daniel Williamson said that he had complained to Sgt Gilmour on 17 December 2006, about the applicant's conduct towards him and Const Laurie. He specifically complained that: a) On 6 December 2006 he attended my place of work apparently seeking a quote for a shed, but also asked me personal questions about where I live and whether I have any children; b) On 10 December 2006 he stood closely behind me in uniform whilst I was assisting as a volunteer at a children's triathlon; c) On 11 December 2006 he drove past Shades café a number of times whilst I was having breakfast there with Nerida; d) On 17 December 2006 I received a telephone call from a male caller while I was at Ms Laurie's house who said to me, "You're a fucking paedophile. I'm going to take you to pieces bit by bit". I have never had such a call either before this time or since. 221 On 16 January 2007, Mr Williamson withdrew his complaint as there had been no further interaction with the applicant since his complaint of 17 December 2006. However, in early March 2007, Insp Williams had asked him to come down to the station and make a statement about the applicant attending his work premises (see earlier par 156). 222 Mr Williamson said that at Mr Zaciew's engagement party on 2 December 2006, he thought Const Laurie had pointed the applicant out to him, and so he knew what he looked like and he also knew that she had been in a long relationship with him. She had told him that she thought he was a bit jealous, but that he would get over it. 223 Mr Williamson deposed that he was a little shocked when the applicant arrived at his workplace. He had felt quite intimidated in that he knew he was Const Laurie's ex-boyfriend and a police officer and assumed he was not interested in purchasing a shed. Mr Williamson said that his suspicions were further raised when the applicant stood behind him at the Triathlon on 10 December 2006. He said that whenever he moved, the applicant moved and stood behind him. He was wearing police overalls. He found this behaviour awkward and intimidating. The next day, Mr Williamson said that he was almost certain the applicant was deliberately trying to intimidate him when he saw him drive past Shades Café four times at around 8:45am. 224 Mr Williamson said that on 17 December 2006, he was at Const Laurie's house when he received a call on his mobile. It was a male and from a private number. Although he could not be sure it was the applicant, he believed it was because: a) he had never received a call of that nature before; b) he was at Const Laurie's house and his car parked outside; and c) the call was around the time of the other incidents. Mr Williamson said that, by this time, he had had enough, and went to the Police Station. 225 Mr Williamson denied ever harassing or stalking the applicant. He said that in April 2008, during an Ironman Competition he did not even recall seeing the applicant, so could not have glared or smirked at him. 226 Mr Williamson also denied glaring at the applicant, pointing his finger or yelling at him while he was sitting in a café across from the Police Station. He had been going to the same cafe for over five years as it was his favourite. 227 Mr Williamson also denied having any domestic violence issues with his ex-wife. He said that in early 2008, arrangements had been made for a custody changeover of his daughter at the Police Station. He denied glaring or staring at the applicant when he was dropping off his daughter. 228 Mr Williamson denied ever following the applicant in his vehicle. He said that, at one point, they had lived around the corner from each other and it was possible that they may have been driving in the same street. As he had no regular starting time, because of his own Triathlon training, there was no way he had been following the applicant, on a regular basis, at a regular time. 229 In cross-examination, Mr Williamson said that he could not recall exactly when his relationship with Const Laurie began, but agreed it was around the first week of December 2006. 230 Mr Williamson agreed that the Force had not asked him if his car was parked outside Const Laurie's house on 9 December 2006, or if the applicant had returned her property that day. He said he could not remember if this had happened. 231 Mr Williamson deposed that he had been sitting outside Shades Café on 11 December 2006. However, he could not remember if Const Laurie was with him. He could not recall if the applicant's car had tinted windows or if the applicant had been wearing sunglasses. 232 Mr Williamson could not recall if he had used the word 'harassment' to Sgt Gilmour on 17 December 2006. He agreed that he had said in his statement about the Triathlon that the applicant was standing behind and beside him. Both versions were correct, because this would happen when he moved around and the applicant would follow. Mr Williamson could not recall seeing the fire truck at the Triathlon and could not deny that the applicant had been speaking to Mr Lenthal. Mr Williamson agreed that he had not directly used the words to Sgt Gilmour of feeling 'awkward' and 'intimidated'. He agreed he had not used these words in December 2006, January 2007 or March 2007. However, it was how he had felt at the time. 233 Mr Williamson was asked about the Ironman Event in 2008. He had been standing about five metres from the applicant and SC Davies. He agreed that he had not moved away and had not felt intimidated. In reply 234 The applicant denied following Mr Williamson at the Triathlon and queried if he was so intimidated, why he never said anything to anyone? The applicant said he had contacted Mr Lenthal, who is now in Wagga Wagga. He had said he was willing to provide a statement supporting his version of events. However, he had since gone on extended holidays and was not due to return until November 2009. 235 The applicant was concerned that the phone call issue should have been relied on as the allegation was found 'not sustained' and that Mr Williamson had read the response to his show cause notice. He described his response as extremely private and it was very unprofessional and unethical of the Force to have given him the document. 236 The applicant noted that Mr Williamson had agreed that he was at the 2008 Ironman event. He said a witness could confirm he looked back at him and the other officer on several occasions. 237 The applicant noted that Mr Williamson had agreed that he may have been on the same road as the applicant. He had known where he lived and knew what his police vehicle looked like. 238 Sgt Williams has had considerable experience in preparing statements for internal police investigations. He was the Investigator of a number of alleged deficiencies and anomalies in the applicant's performance of his EDO role. Sgt Williams was required to consider and investigate the following two issues: a) Whether Mr Whyte falsified official records upon the SAP system in regard to the firearms training scores and the mandatory training lectures for 44 officers from the Mid North Coast LAC during the 2006/2007 training year; and b) Whether Mr Whyte provided incorrect or misleading information in official records including the SAP system in regards to mandatory training lectures with the incorrect exemption category being included for a number of officers from the Mid North Coast LAC during the 2006/2007 training years. 239 Sgt Williams received a complaint folder containing the following documents: Report of Acting Senior Sergeant J Schultz 06/07 Mandatory Training 100% Audit summary Position Overview Report Training Needs Analysis 07/08 MNC LAC Induction 06/07 SAP records 07/08 SAP records Live Fire Score Sheet 13/3/07 Training Records MNC LAC 2007 MNC Training Calendar 2007 SAP Pre-booking report Covering Report from the Complaints Management team regarding directions of the investigation. 240 Sgt Williams (together with Insp Williams) conducted a directed interview with the applicant on 11 May 2008. (The record of interview was annexed to his affidavit.) After this, Sgt Williams directed a number of questions to a Level 3 Operations Safety Trainer, Leading Senior Constable Peter Williams ('LSC Williams'), as to the procedure involved in the recording of firearms training scores. He had established that one copy of the results is kept with the Register and the original is forwarded to the EDO. LSC Williams was not aware of any firearm training records going missing and the applicant had not inquired as to any missing records. Sgt Williams also spoke to Senior Constable John Hay ('SC Hay') about the missing book. He replied as follows: As per our conversation re missing diary from training days in 2007, I had managed to piece most of the missing information together. Rob Whyte has handed me a 2007 Diary on the 18/6/08 which he stated was in a box of personal items which I gave to him when I cleaned out the EDO office. He stated this is the missing diary that supposedly Bruce Browning was the last one to have. He also informed me that he had updated the information contained in the diary on the SAP system while he was on night shift during the week I was on leave. This will mean that some records have been duplicated but I believe it does not create 2 records but just goes over the top of the previous one. I believe that the system will show who has updated what last but don't know how to check this. I will give you the diary for your records. 241 Sgt Williams and Insp Williams reviewed all the material and considered that there were some outstanding issues which needed to be addressed and a second directed interview with the applicant was held on 6 June 2008. 242 Sgt Williams' Investigator's Report was dated 25 June 2008, and he found the two issues sustained. He concluded as follows: Whilst not all of the facets of the EDO's were examined in detail, it is quite apparent that there are the similar failings in many areas of this role. For that reason each and every one was not examined due to the time constraints that would impact on the investigation. The end result would not significantly affect the investigation findings. Sergeant WHYTE's conduct regarding these matters is not performance based, my opinion is that it appears as though it is based on saving time for Sergeant WHYTE, but does not ensure timely accurate records are recorded within systems maintained. Therefore, it is a conduct issue. Sergeant WHYTE in his interview raised consultation (Q/A 36 & 51, 110508) but when the issue regarding induction package was raised in a document with him, it was still not amended. It is quite clear that Sgt WHYTE is aware of his roles and responsibilities but has chosen not to comply with the responsibilities given to that role. On the 18th June, 2008, Sergeant WHYTE handed the relieving EDO, Senior Constable HAY a diary which contained names of officers who had completed lectures. He had also informed him that he had accessed SAP and updated a number of records relating to those officers who had completed lectures. As a result of this and on the 19th June, 2008, I spoke with Sergeant WHYTE and instructed him not to access the SAP system for any purpose relating to the EDO's role without my or the Commander's expressed permission. 243 Sgt Williams prepared two tables addressing each of the applicant's criticisms of his investigation. In cross-examination, Sgt Williams agreed that his two tables of responses had only been prepared at the request of Supt Fehon for the purposes of these proceedings and after the show cause notices had been sent. 244 Sgt Williams accepted an example of a person attending the Police Station on 2 October 2009, was one where no custody record was made. Sgt Williams did not know what the eight mandatory Defensive Tactic Weapons Control (DEFTAC) lectures in 2006 and 2007 were. What he investigated were the training scores for 13 March and 12 June 2007. The applicant had told him during the investigation that there was a second live fire book being used. However, none were found to be missing. The Sergeant was asked, but could not recall, contacting a SC Trotter about a misplaced score book. He denied this matter had been raised by the applicant, but not mentioned in his Report. If he had spoken to SC Trotter, it would have been included in his Report. Sgt Williams insisted that he had not made an approach to SC Trotter about the investigation. He had not approached any of the other seven out of eight Safety Trainers in the Command about this matter. 245 Sgt Williams was shown an original police record which contained the following entry: 6.3.07 NTO (Book misplaced as at 6.3.07). Sgt Williams said that this was the first time he had seen this record and he agreed it related to the score sheets referred to in his report. He agreed that this demonstrated the book may have been misplaced, but not lost. It did not necessarily mean the book was lost during the relevant period. He agreed he did not investigate why a second live fire book had been brought into existence during 2006/07. He explained that because one book may have been used somewhere else on a particular day, it does not mean the book is missing. Both books were utilised in March 2007. 246 Sgt Williams said the Induction Package prepared by the applicant gave totally different names of the senior managers in the Command. He agreed that his report did not particularise or specify anything else which was said to be false or misleading. He had accepted some of the named officers were not even in the Command at the time, and others had been given exemptions for reasons which were not true. In reply 247 The applicant claimed that the memorandum from LSC Williams was not sufficient to answer the critical question of what is the correct procedure if the score book and duplicate book are missing. The applicant said the focus of the investigation was not on his performance in the role of EDO, but was specifically targeted to his integrity. 248 The applicant claimed there were several errors in Sgt William's response to his criticism. No one had received any benefit from being exempted and the auditor had recommended no corrective action. The applicant said that Sgt Williams had found that his only motivation was to save time, but he did not actually detail how much time. Sgt Williams had said it was 'highly unusual' for a score book to go missing, but he did not say it was impossible. The applicant said that Sgt Williams has had no experience in SAP data entry for weapons training and he could not make out a motivation of saving time. The applicant said that contrary to Sgt Williams' assertion that there was no evidence the score sheet was missing, there was evidence that it was. 249 The applicant said that this issue involved 30 matters, but nowhere in the investigation is this number mentioned. The applicant accused Sgt Williams of omitting evidence favourable to him; that of SC Trotter. 250 The applicant said the only part of the induction package which was out of date was the contact list and, in any event, the induction package is not available to all staff. 251 Sgt Schultz provided a statement concerning her report of anomalies in various training and increment records for December 2007, in the Mid North Coast LAC. She was not required for cross-examination. Sgt Schultz reviewed the following records and systems: § 100% audit of mandatory training records for the 2006/2007 training year. § 100% audit of increment files which relate to the mandatory training records for the 2006/2007 training year. § A review of the Mid North Coast LAC Training Intranet Homepage. § A review of the Training & HR Folder on the LAC "P Drive". § A review of the EDO Folder on the LAC "P Drive" § A review of the physical and electronic systems in place in the EDO area located in the Administrative Unit, Level 1, Port Macquarie Police Station. She concluded as follows: Attachment 1 is a spreadsheet which summarises the contents of the certificate of competency for 180 staff attached to the command. There were a high number of anomalies regarding accurate recording of data. Some are minor issues such as incorrect exemption categories; however 44 increments were processed between July and December 2007 which contained errors including insufficient points accrued for mandatory lectures, incomplete deftac modules and anomalies in the recording of live fire scores. These errors contravene the requirements outlined in Clause 55 of the Crown Employees (Police Officers - 2005) Award Competency Based Incremental Progression and require further investigation regarding why these anomalies have occurred. Further to this, there are a number of areas requiring urgent update and attention including: § Command Induction Package and agenda § Training attendance recording systems § Creation of individual training files for all staff attached to the Command § Update of command skills matrix and course attendance calendar § Quality assurance systems for the processing of Increments § Creation of storage areas to locate training resources and improvement to physical workspace including removal of out of date material Attached is a summary of the areas in need of attention and recommendations for improvement as per the position overview for Command Education and Development Officer. This document provides an outline of the core functions of the role of EDO and the tools and systems that would ensure that the core activities of the role are addressed. In terms of resourcing the position – it is noted that the Command is diverse both geographically and in it's demographics with an increased turnover of staff including increased probationary constable allocations. Therefore consideration should be given to providing greater resources to the position to ensure that the suggested improvements are implemented. Whilst the non recording of mandatory training is of significant concern, I do not believe that there is a risk to the command for the officers concerned to continue operational duties. However, checks should be made with local weapons trainers to determine if all police completed the required training and it is then a recording problem. 252 Sgt Neville received a complaints file from the CMT on 12 June 2007, and was asked to investigate the following matters: a) Breach of code of conduct – the wearing of a police uniform by Mr Whyte when attending to private matters at the Consumer, Trader and Tenancy Tribunal (the CTTT) and also whilst attending a rental property owned by Mr Whyte; b) Misuse of an official police vehicle; c) Misuse of official police equipment – use of a police envelope to send a letter for a non-police purpose, (on two occasions) and d) Intimidation. 253 These allegations arose from complaints by a member of the public, Mr Skinner, who was a tenant in a property owned by the applicant. Sgt Neville conducted an interview with the applicant on 29 June 2007, in the presence of Inspector Bruce Simons ('Insp Simons'). Senior Constable Gary Bates ('SC Bates') attended as the applicant's support person. Prior to this time, Sgt Neville had unsuccessfully attempted to interview Mr Skinner. On 28 June 2007, a solicitor (Mr English), representing Mr Skinner, attended the Police Station and advised that Mr Skinner was overseas and would not be returning until the end of July 2007. They had discussed the possibility of an AVO being taken out, but both he and the solicitor had agreed that there was nothing in Mr Skinner's statement which indicated he was fearful of the applicant. Sgt Neville further concluded that there was nothing disclosed which indicated a criminal investigation was warranted. Sgt Neville found two of the above issues sustained: a) Breach of code of conduct – the wearing of a police uniform by Mr Whyte to the Consumer, Trader and Tenancy Tribunal (the CTTT) and whilst attending a rental property owned by Mr Whyte, and b) Misuse of official police equipment – use of a police envelope to send a letter for a non-police purpose. 254 However, during his interview, it was disclosed that the applicant attended the premises rented by Mr Skinner in a police vehicle on an undetermined date. Sgt Neville found that the applicant had breached the Force's policy on 'Acceptable private use of resources'. Further, that the applicant had not sought to obtain the approval of Management for the use of police envelopes and a motor vehicle for private purposes. 255 Sgt Neville believed that because the applicant was an EDO, he should have had a superior knowledge of all Police Policies and Procedures. Sgt Neville made the following recommendation and findings: Ordinarily I would recommend the imposition of non-reviewable action/s against Sergeant WHYTE in relation to the matters that have been sustained as a result of this investigation. However, I am aware that (sic) are currently other matters under consideration before the Internal Review Panel. I also believe that this officer has previously had matters sustained relating to his failure to properly identify or manage conflict of interest issues. I make no specific recommendations in relation to the sustained issues of this investigation and leave the determination of such action for the consideration of the Complaints Management Team. Consideration should be given to undertaking a separate investigation of Mr Colin William SKINNER for possible breaches of Section 5 of the Listening Devices Act 1984 on the 30. 256 Sgt Neville said that when he advised the applicant of the outcome of his investigation, he did not raise any concerns, issues or objections to the conclusions he had reached. 257 Sgt Neville rejected the applicant's claim that it was common practice to use departmental vehicles for minor personal matters. He said this was only acceptable in very limited circumstances and must be done with the knowledge of the officer's superiors. 258 In oral evidence, Sgt Neville could not recall if he was consulted by Supt Fehon between the issuance of the show cause notice and the order being issued. Sgt Neville agreed that he did not sustain the allegations that the applicant attended the CTTT in full police uniform. In reply 259 The applicant said Sgt Neville's statement was erroneous. The issue of wearing full police uniform to the CTTT had not been sustained, nor was the complaint that he wore his police uniform to his rental property on 30 May 2007. 260 The applicant complained that the finding of misuse of a police vehicle was overzealous. No date was established and no complaint had been made. He had admitted attending his rental property to investigate a dangerous boundary fence, but had done so in his own time. No operational difficulties had arisen as a result. 261 The applicant said that as a Sergeant of Police, he had never heard of a Sergeant going to a Crime Manager to ask permission to use a police vehicle for private purposes. 262 The applicant claimed Mr Skinner is a malicious liar who is prepared to break the law and exaggerate matters to further his own cause and to give him grief. The applicant had attended eight CTTT hearings, all of which were determined in his favour and, eventually, Mr Skinner was evicted from his property while still owing bond money and outstanding rent. 263 The applicant believed Mr Skinner was not intimidated by him and had been trying to set him up by asking him to meet, when he was on duty, knowing he would turn up in uniform in a police vehicle. The applicant denied ever meeting Mr Skinner in full police uniform. He said that on one occasion, Mr Skinner had secretly taped their conversation and the Investigator concluded that he (the applicant) had acted appropriately. The applicant admitted writing to Mr Skinner on two occasions, using police envelopes. 264 Acting Insp Fehon was required to conduct an investigation in respect to the arrest of Ms Marie Scowan on 21 August 2008, and the incident involving four juveniles on 19 August 2008. 265 Acting Insp Fehon was on duty on the day Ms Scowan made her complaint against the Force and she had made some initial inquiries, which had included interviewing the applicant on 29 August 2008. Sergeant Wayne Sainsbury ('Sgt Sainsbury') was also present. She said she did not arrange for directed interviews with any of the officers on duty on the night of Ms Scowen's arrest or when the four juveniles were at the Station. However, she did speak to each of them. She said that this was because she believed she was conciliating that part of the complaint which involved them, whereas the custody issues were the subject of the Investigation, as the applicant was the supervisor on both occasions and no custody records had been created. 266 Acting Inspector Fehon denied she had been biased in her investigation or that she had 'targeted' the applicant. She had arrived at her conclusions completely independently and had no 'malicious intent'. She noted that it was open for the CMT to accept or reject her recommendations. Her findings were as follows: ISSUE1: Failure to comply with legislative code of practice (safe custody procedures) re Marnie SCOWEN on 21 August 2008. I find this matter sustained as although Sergeant WHYTE could not have performed the role of Custody Manager in this matter as he played a part in the arrest of SCOWEN he was the Supervisor of the shift and directed that a search be conducted. Part 9 did not apply so therefore he should have created or caused to be created a Custody Management Record for Marnie SCOWEN, as is clearly indicated the Code of Practice and Crime and guidelines for strip searches. This breach was highlighted due to the fact that property was left in the custody area and not recorded on the Custody Management Record. Although Sergeant WHYTE failed to comply with safe custody procedures this has not resulted in any loss of evidence against SCOWEN or action against the Police Force. ISSUE 2: Failure to comply with legislative code of practice (safe custody procedures) re four juvenile persons in Police custody on 19 August 2008. I find that this matter is sustained in relation to all four young persons listed in event E 35098851 who attended Port Macquarie Police Station on 19 August 2008. These persons were all at the Police Station for interview in relation to a stealing on 18 August 2008. Sergeant WHYTE was the Supervisor and Custody Manager at this time. No custody record was created for any of the four young persons. One Young person was arrested and conveyed to the Police Station, where a field arrest form was completed. Sergeant WHYTE in his capacity as the Custody Manager read his Part 9 rights to him in the presence of his parent. There is no doubt that Sergeant WHYTE should have created a custody record for this young person and (sic) per the code of practice and crime, he acknowledges this in his interview (Attachment 4). In relation to the other three young persons they all attended the Police Station voluntarily and were not arrested however Part 9 of LEPRA applies and they were still required to be put before the Custody Manager and a custody record created as per the Code of Practice and Crime. Sergeant WHYTE initially admitted this in his interview (Attachment 4) but later provided an email (Attachment 5) justifying his actions as the young persons were not under arrest and were only going to receive a caution. He also states in Paragraph 5 of that email that "under the Young Offenders Act we as police should take the least restrictive sanction against children". The juveniles were all placed in the custody area whilst they had their rights explained to them for about a 15 minute period, there would have been no additional restriction placed on them by complying with the safe custody procedure, as long as it was clearly explained to them that they were not under arrest and were free to leave at any time as indicated should be the case in law note 07/28 (Attachment 10). I believe the evidence in this matter indicates that Sergeant WHYTE did not enter the four young persons into custody to alleviate additional work for himself, due to the fact that he did not believe that it would be an issue when the juveniles were likely to receive cautions for the matter. Cautions have been successfully delivered to all four young persons. Although Sergeant WHYTE failed to comply with safe custody procedures this has not resulted in any loss of evidence against any of the four young persons or action against the Police Force. As acknowledged by Sergeant WHYTE himself failure to comply with safe custody procedures is a poor example for a Supervisor to set for his team. 267 Before Acting Insp Fehon's cross-examination, the Commission viewed the video footage of the search of Ms Scowen at Port Macquarie Police Station around 1:00am on 21 August 2008. Acting Insp Fehon accepted that there were two searches of Ms Scowen, but she believed both could be described as strip searches. Acting Insp Fehon said she did not know that it was a common practice, when a person is arrested for offensive language, for them to be conveyed to the Police Station, for them to be issued with a CIN and then released without a custody record being created. 268 Acting Insp Fehon was shown a copy of the Police Code of Practice for CRIME and acknowledged that the words 'with a view to making admissions' (words used in her investigation) were not in the Policy. She could not remember if she had looked directly at the Policy before signing off on her Report. She conceded that she did not know everything that was involved in the Policy and said that this would be impossible, including for a Custody Sergeant at a Police Station. 269 Acting Insp Fehon said she accepted that the male officers left the charge room after the first search. She still believed that the first search, which involved lifting Ms Scowen's top up exposing her skin, was a strip search. However, she did not see any particular problem with the applicant being present at this search, although she believed it was probably 'borderline' and 'unforseen'. She agreed she had not broken up the search into two parts in her Investigator's Report. 270 Acting Insp Fehon had nothing to do with drafting the show cause notice or orders. She said she was shown the applicant's show cause reply submission. However, she did not believe it changed her findings. She made no note of this conversation with the Commander (her husband) but believed it occurred before the issuance of the order, because any response from her may have affected the outcome. She narrowed the date to a little after her return from overseas on 24 June 2009. 271 In reply, the applicant believed that he had been targeted for the complaint process over issues which may have been performance based. This was an abuse of the complaint system. The applicant also criticised Acting Insp Fehon's lack of understanding of Pt 9 of LEPRA. SUBMISSIONS For the applicant 272 Mr Docking of Counsel described the approach of the Force in this case as a 'hamburger with the lot'. He said that in the present review, an overwhelming case exists that each of the purported orders were 'beyond power'. He said this meant: a. "It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself : Sharp v Wakefield (1891) AC 173, at p 179. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed." ( R v Anderson; Ex Parte Ipec Air Pty Limited (1965) 113 CLR 177 (" Ipec Air ") per Kitto J at 189. b. Where the person making the decision does not have the delegation to make it, the decision is made for improper purposes or the decision is invalid because of some procedural irregularity such as a failure to accord procedural fairness ( McGuirk v University of New South Wales [2009] NSWADTAP 12, the Appeal Panel of the Administrative Decisions Tribunal at [18]). See also the findings in Gilmour at [327](3) – (5). 273 Additionally, or in the alternative, Mr Docking submitted that each order was 'harsh, unreasonable and unjust' because: a. The Commissioner's delegate has acted illegally. Whilst the criteria of harsh, unjust or unreasonable differ from criteria for determining whether summary dismissal is lawful, the lawfulness or otherwise of a dismissal must nevertheless be relevant in determining whether the dismissal (or here the reviewable action) satisfies the statutory criteria ( R v Industrial Court; Ex Parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 at 506 (King CJ (with whom Mitchell J agreed) sitting as the South Australian Supreme Court in Banco). b. The various procedural stipulations in the Act require if not strict compliance then at least "a careful and punctilious regard to correct procedure" (see, for example, Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [75], citing with approval Van Huissteded (No 1) at [193] to [200] and the authorities cited therein). c. It should be concluded that the applicant's reviewable action is harsh, unreasonable or unjust due to the inadequacies in the approach adopted by the Commissioner in the s 173 process (by analogy Van Huisstede (No 1) at [233]). Hence, the procedural deficiencies in the approach adopted by the Commissioner's delegate to the s 173 process in this case provide a sufficient basis to determine that the applicant's removal was harsh, unreasonable and unjust ( Van Huissteded (No 1) at [234]). 274 Mr Docking said that the evidentiary onus in this case falls on the Commissioner of Police in two ways; firstly, there was sufficient doubt as to whether the procedural requirements of s 173 were met; and secondly, the Force bears the onus of proof in establishing the applicant's misconduct: See Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93. The standard of proof is the civil standard tested against the comments in Briginshaw v Briginshaw. The evidence must be clear and cogent. 275 Mr Docking cited seven primary grounds for the orders not complying with the requirements of s 173 of the Act. These were: 276 1. The written notice containing the terms of the second order that was issued by the Commissioner's delegate fails to indicate whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, in contravention of s 173(7)(b). He said this ground applies only to the first purported order. The requirement under s 173(7)(b) to make reference in the order to an investigation under Pt 8A of the Police Act is express and unequivocal. No such words appear in the written notice containing the terms of the first purported order of Supt Fehon. He was in breach of the Force's Code of Conduct. 277 2. The Commissioner's delegate purports to rely upon 'conduct' and 'integrity' but this is beyond power as they are not prescribed statutory criteria in any of s 173(2), (4) and (7)(a). Mr Docking said that 'conduct and integrity' were taken from s 181D of the Act, but appear nowhere in s 173, which refers only to misconduct and unsatisfactory performance. Thus, in so far as 'integrity' is concerned, the order was beyond power because: a. The discretion allowed by statute to the holder of an office was not exercised according to law ( Ipec Air ). b. The Commissioner's delegate (or the unknown person who wrote the order) misdirected himself in law or has taken irrelevant matters into account ( Buck v Bavone (1976) 125 CLR 110; [1976] HCA 24 per Gibbs J (as then was)). c. The decision is vitiated because an irrelevant consideration was taken into account and there was a misdirection in law as to the scope or content of the statutory power ( Parramatta City Council v Hale (1982) 47 LGRA 319 (" Parramatta city Council ") at 335.3 per Street CJ. 278 3. The applicant was denied natural justice because the Commissioner's delegate based a decision on findings or reasoning not disclosed to the applicant and the applicant was thereby deprived of the opportunity to address such matters. There was no dispute that the applicant was not provided with the following documents: a. The IRP referral documents. b. CMT minutes, which, as seen below, contain many admissions against he Commissioner's interests. c. Annexures to the second affidavit of Superintendent Fehon PF1, PF2 (so-called running sheets), PF3, PF5, PF9, PF10, PF11 (Superintendent Fehon XX245.23 – 246.14). d. Various statements as mentioned in the applicant's materials. He was thereby denied natural justice: See Muin v Refugee Review Tribunal (2002) 190 ALR 601, per Kirby J; Mahoney v Commissioner of Police [2003] NSWIRComm 67; Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Limited (2003) 128 IR 37; Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 and Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51 (' Gilmour'). He was also denied natural justice, according to Reg 48 of the Police Regulations 2008. 279 4. The Commissioner's delegate accepted another person/s direction as to the way in which the discretion should be exercised, namely, the IRP or persons unknown from HDY. The two notices and orders were written by unknown person/s from Henry Davis York Lawyers. Supt Fehon did not know what documents were relied on by Henry Davis York in preparing the notices and orders. Mr Docking said that the Act does not create an administrative body to assist decision makers in s 173 matters. Thus: a. An accepted ground of challenge is that the decision-maker accepted another's direction as to the way in which the discretion should be exercised. ( Ipec Air ). b. It is impossible to regard that as a real investigation. Somebody else had come to the conclusion that the appellant had been guilty of conduct ( Evans v Donaldson (1909) 9 CLR 140; [1909] HCA 46 per Griffith CJ (with whom Braton J agreed). 280 5. The Commissioner's delegate failed to comply with the requirement or pre-condition in s 173(5)(c) that the decision-maker 'must take into consideration any written submissions received from the police officer'. Mr Docking said that Supt Fehon failed to properly undertake consideration of the applicant's submission because he did not, and could not, have undertaken an ' active, intellectual process' . Moreover: i. The information received about the representations was wholly inadequate to enable it to be said, as a matter of fact, that he had, in any reasonable sense of the word, "considered" the representations (at 476). ii. It was not open to him to hand over to an adviser the responsibility to consider the representations, but he may receive assistance from staff. iii. To "consider" material such as a report or representations is to apply his mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. He can be assisted in ascertaining the facts and contentions based in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others. Any summary must bring to his attention all material facts (at 477). iv. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 (per Mason J) due to an obligation implicit in the subject-matter, scope and purpose of an Act, to take account of detriment to individuals, the Minister's consideration of that factor must be based on the most recent and accurate information that the Minister has at hand (at 477). 281 Mr Docking said that three postit notes on the applicant's response could not possibly comprise an adequate consideration of the 57 pages of the applicant's first submission. Moreover, nothing was produced in respect of the 43 pages of the second submission. Mr Docking rejected, as unreliable, Supt Fehon's claim that he had asked each of the Investigators to comment on the applicant's response. This evidence was never mentioned until his cross-examination. 282 In addition, Supt Fehon did not relevantly take into consideration the applicant's excellent service record, good character and personal and economic circumstances, and did not even advert to these matters. See Weal v Bathurst City Council (2000) 111 LGERA 181. The Superintendent's decision was uniformed in that it was not based on all of the evidence: See Van Huisstede v Commissioner of Police (2000) 98 IR 57; Bigg v New South Wales Police Service (1998) 80 IR 434 and Oswald v New South Wales Police Service (1999) 90 IR 42. 283 6. The Commissioner's delegate in the written notice containing the terms of the s 173(2) order did not indicate his reasons for making the order or, alternatively, the reasons written by persons unknown are inadequate, in contravention of s 173(7)(c). 284 Mr Docking put that Van Huisstede v Commissioner of Police grounds the following propositions: a. The approach of Ipec-Air at 189 applies to the obligation under s 181D(4) in relation to the giving of reasons. b. The reasons should permit an assessment of whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. c. The decision of the Commissioner and the reasons advanced in support of his decision were founded on a fundamentally inadequate assessment of the available information. Reasons given must be proper and adequate and deal with the substantial points in so far as the decision concerned. 285 7. The use of formula in the s 173(2) order provide evidence of an actionable abuse of power by the decision-maker. 286 Mr Docking said set formulae were used throughout the notices and orders. He said that the incantation of formula will not save a decision from invalidity: See Minister for immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 287 Mr Docking claimed a number of other procedural unfairness grounds as follows: a. The NSWPF investigations are inadequate at least in certain aspects (see below). b. The NSWPF did not apply or comply with "Complaint Practice Note Subject – Investigating untruthfulness by subject officers during Part 8A complaints" (ex 10), which was in place and in operation before each of the purported orders. c. The IRP and Superintendent did not take into account legislative obligations, service standards and precedents (or, in other words, "benchmarking" or parity), and Industrial Relations Commission decisions and precedents. d. No minutes, notes and records were kept of any IRP meetings (see what was not produced under the summons for production). See also Byrne v Australian Airlines Limited ; Newton v New South Wales Police Service and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. 288 Mr Docking cited the following definitions of misconduct as to whether the applicant's conduct met such a test: a. The word "misconduct" involves something more than mere negligence, error of judgment or innocent mistake ( O'Connor v Palmer (No 1) (1959) 1 FLR 397 at 401.9 per Full Court of the Commonwealth Industrial Court citing Moore v Brompton Country Bailiff (1893) 62 LJQB 498; and GJ McCarry in Aspects of Public Sector Employment Law , LBC, 1988 at p 127 cites these cases as indicating the limits of "misconduct", noting the latter case concerns a public official). b. The statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession or mere negligence or an error of judgment or mere mistakes or carelessness. What is required is intentional wrongdoing or maybe gross negligence ( Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200.B – 201D). 289 Mr Docking referred to the well settled principles as to whether misconduct is able to be proven, by citing Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. He said: Given the onus or burden to prove the alleged misconduct is on the Commissioner, the consistent and strong denials of the applicant, the good character of the applicant and the corroboration of the applicant, the Commission should intervene in the applicant's favour. The reviewable action is unjust because the employee was not guilty of certain of the misconduct on which the employer acted and it is unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer (McHugh and Gummow JJ in Byrne at 465). 290 In dealing with the evidence, Mr Docking said that the alleged awareness of the applicant as to when he knew of the relationship between Const Laurie and Mr Williamson underpins many issues. Const Laurie had said her relationship with the applicant ended in August 2006, while the applicant said it was 19 November 2006. Supt Fehon did not resolve this issue. 291 There was no dispute that in the period November to December 2006, the applicant was sad and depressed about the break-up. His evidence should be accepted because: … b. Ms Laurie always stated that "it wasn't until the start of December until we started seeing each other" and "It was in the first week of December that I started my relationship with Daniel". Without more, it is curious and impermissible (in light of principles extracted above) that untruthfulness and this underpinning of so many issues were ever alleged when one of the parties in the subject relationship always supported the applicant on this issue. How was the applicant aware of a relationship on or around 25 November 2006 that was yet to start? Mr Daniel Williamson in cross-examination conceded: "That's coming from her. From me it was around that time. I don't remember any exact recollection of the time and date; it was around about that time". This timing was never checked properly or at all with Mr Daniel Williamson in any NSWPF investigation. It should have been as it appears that there is no dispute that Ms Laurie was at Goulburn until 19 November 2006 and contradicted what Mr Daniel Williamson previously said. c. The respondent has not read the directed interviews with the applicant fairly or as a whole. d. Ms Laurie, in the witness box on 12 November 2009, did not recall the applicant's version of their telephone conversation on 7 December 2006 and, therefore, was unable to deny it. In other words, there can be no dispute that Ms Laurie denied she was in a relationship. e. The applicant made a "fresh statement" on Friday 8 December 2006 to Mr Zaciew that he was going to return all of Nerida's stuff the next morning. f. The NSWPF never asked Ms Laurie about the applicant's version of what occurred on Saturday 9 December 2009 and, in the witness box on 12 November 2009, the witness did not recall much of it and was unable to deny the applicant's version. Ms Laurie did recall Mr Williamson's car was parked outside and "I don't remember the date, I remember him returning my furniture, yes". 292 Mr Docking also referred to the principle cited in Bankstown City Council v Paris (2000) 100 IR 363, and which referred to Wheeler v Phillip Morris Ltd (1989) 32 IR 323, where it was said: "There is no general principle that a party to court proceedings who fails to tell the truth is bound to lose, and to lose completely, on that ground. Deliberate falsehood on oath is punishable separately as a criminal offence, and not by deprivation of rights which exist otherwise. … For the most part, however, parties will not be deprived of remedies to which they are otherwise entitled, even if they are found to have failed to reveal the whole truth." 293 Mr Docking said the Commission should also accept the reasons and explanations for (a) why the applicant was at Flynns Beach on 5 December 2006; (b) why he made the COPS inquiries on 5 and 6 December 2006; and (c) why he visited Mr Williamson's workplace on 6 December 2006. 294 Mr Docking argued that Inspector Williams' 10 December 2006 running sheet entry was unreliable as to its accuracy or veracity, because: a. There was no complaint about Sergeant Whyte before police officer Gilmour took the statement on 17 December 2006 concerning the Williamson allegations. b. The CMT minutes do not refer to Sergeant Whyte until January 2007. c. The Commissioner and NSWPF have failed to check or produce the computer record showing when Inspector Alan Williams first created or then modified his entry, which it is agreed would put it beyond doubt so that way we are not speculating. d. If Inspector Williams really made any note on 10 December 2006 it would have been treated as a complaint about misconduct and this did not occur. In fact, the first time it is mentioned at the CMT meetings is in July 2007. e. When the version of the applicant was put to Inspector Alan Williams, the witness could not recall some passages of the conversation and only denied one passage. f. Inspector Alan Williams would really have us believe it slipped his mind for seven months, two investigators reports, two records of interview and you don't put it to someone being subject to an interview. This is simply inherently implausible and improbable. g. Inspector Alan Williams did not comply with what he understood is the correct way to give procedural fairness if you want to rely upon an information conversation; you put it formally in a directed interview. It has the advantage for example it is closer in time and gives the person being interviewed a proper advantage and opportunity to give his version close in time. h. A reasonable inference is that Inspector Alan Williams misinterpreted what was said by the applicant and reconstructed it by using his own language or the language of another in so far as there is reference to "check him out". Joan Barlow in the NSWPF note book statement taken on 6 March 2007 by Inspector Alan Williams includes "to check out Daniel". What a remarkable coincidence if the applicant and Joan Barlow separately used what are essentially these same words? 295 Mr Docking submitted that the applicant's version of events at the 10 December 2006 Triathlon should be accepted because of the inconsistencies in Mr Williamson's statement which were recent inventions. In addition, no effort was made to contact Mr Lenthal to obtain his version of events. The incident at Shades Café was not proven, even having regard for the inconsistent statements of Mr Williamson. 296 Mr Docking said that Issues 7 to 10 could not be construed as misconduct and were extremely trivial. As to Issues 11 and 12, even the CMT minutes recorded that they warranted a Commander's Warning Notice only. It was never considered to be misconduct and the investigation was flawed. 297 Mr Docking put that the CMT minutes as to the second show cause notice and order had only disclosed a Commander's Warning Notice was appropriate. The Superintendent was unable to explain why he rejected the applicant's explanation as to his failure to follow safe custody procedures for the four juveniles. Even he acknowledged that he did not have a full understanding and knowledge of CRIME. 298 As to the arrest of Ms Scowen, Mr Docking said that Supt Fehon did not look at DPP v Carr or undertake inquiries as to the common practice of not creating a custody record for persons in Ms Scowan's situation. Mr Docking submitted that the viewing of the CCTV footage revealed two separate searches and the applicant did not look at the second search. Acting Insp Fehon gave implausible and improbable evidence that the first search constituted a strip search. Further, there was no investigation of the applicant's alleged untruthfulness. 299 Mr Docking agreed that regardless of the findings of the Commission on the issues in this case, the applicant has suffered enough. The orders are harsh and disproportionate to the conduct. He has not been allowed to act up and Mr Docking referred to the applicant's submissions as to the effect of the orders on him, both personally and financially. 300 Mr Docking put that the applicant relies on Gilmour and Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198, as to the balancing of the interests of the applicant and the public interest and each purported order should be revoked. For the Force 301 Mr A Searle of Counsel outlined the approach he said was adopted by Parliament in creating a special statutory scheme so as to ensure the integrity of the Force and its officers and for the Commission to have regard to the public interest when determining applications for review of s 173 orders. This results in consideration by the Commission of whether a particular order is 'harsh, unreasonable or unjust' or 'beyond power'. Mr Searle said the Act clearly contemplates that the Commissioner of Police will be called upon to assess allegations of misconduct or unsatisfactory performance, determine whether any such allegations are properly based and express an opinion or judgment about whether any such shortcoming justifies the making of reviewable orders. This is similar to the exercise of the removal powers in s 181D of the Act, and the approach of the Commission is relatively similar: See Wells v Commissioner of Police (2000) 100 IR 106 and Little v Commissioner of Police (No 2) (2002) 112 IR 212. He said the jurisdiction of the Commission in Div 10 of Pt 9 of the Act is a full merit review and not a review in the nature of an administrative law/judicial review: See Hosemans v Commissioner of Police (No 2). The Commission's task is to make a fresh and independent review based on the material before the Commissioner of Police and any new evidence admitted: See Hosemans v Commissioner of Police and Gilmour. 302 Mr Searle said the meaning of misconduct was improper or unacceptable conduct or behaviour: See Pillai v Messiter (No 2) (1989) 16 NSWLR 197 and in the police context included breaches of the Police Regulations, the New South Wales Police Standards of Professional Conduct and New South Wales Police Code of Conduct, which includes upholding the values and good reputation of the New South Wales Police Force, whether on or off duty. The approach is consistent with the Full Bench authority in New South Wales Attorney-General's Department v Miller (2007) 160 IR 185. Mr Searle put that misconduct under this section does not have to be of a character which would otherwise justify instant dismissal at common law, or removal pursuant to s 181D, and may be a single instance or multiple incidents of misconduct. The starting point for this review is the reasons given for the order and the Commission's determination of whether or not the officer engaged in such conduct. 303 Mr Searle submitted that, given the plain and unambiguous words of s 175(2), the legal onus of proof, at all times, rests with the applicant. There is no shifting burden as in the case of unfair dismissal proceedings. The evidentiary burden may shift, but not the legal burden: See Van Huisstede v Commissioner of Police and Starr v Commissioner of Police [2001] NSWIRComm 226. 304 The legal burden of proof is on the balance of probabilities based on the preponderance of evidence. The applicant must prove the facts to demonstrate the misconduct did not take place: See Currie v Dempsey [1967] 2 NSWR 532. Nevertheless, the Force has shown that sufficient evidence exists to demonstrate the misconduct occurred. Even so, there is an important distinction between s 173 orders and removal orders: See Starr v Commissioner of Police. Mandatory discipline has paramount importance in the New South Wales Police Force. 305 The standard of proof is on the Briginshaw v Briginshaw test requiring the Commission to be satisfied to the requisite degree that the misconduct occurred: See Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Four Sons Pty Ltd v Limsiripothong (2000) 98 IR 1 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. Misconduct can be found to have occurred where it is simply one person's word against another's: See Varmedja v Varmedja [2008] NSWCA 177 and Ainsworth v Ainsworth [2002] NSWCA 130. 306 Mr Searle referred to the meaning of the term 'beyond power' which is not found in any of the other provisions of the Police Act. It is the plain English translation of the term ultra vires and depends on the principle that any person who purports to exercise an authority confirmed by a statute must act within the limits of the statute and in the manner which the statute prescribes: See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. He said the Administrative Decisions Tribunal (ADT), in construing the term under the Administrative Decisions Tribunal Act 1997, found that it is intended to express 'simple' or 'narrow' ultra vires such as when the decision maker has no power to make the decision or has failed to comply with a procedure under the relevant legislation: See X v Commissioner, Community Services Commission [1999] NSWADT 26 at [21] (approved on appeal by X v Commissioner, Community Services Commission [2000] NSWADTAP 2 at [43] – [44]) and DV v Community Services Commission [2002] NSWADT 246 at [24] – [26]. 307 This limited definition is to be distinguished to 'broad' or 'extended' ultra vires which are excluded from the term 'beyond power' and concerns the actual content of the decision making power, rather than the failure to have the power or comply with anterial steps or as precondition to exercising power. Mr Searle said the applicant's reliance on extended ultra vires was misconceived. The Commission's task is to determine whether the Force had exceeded the express limits of its power, not to analyse the decision by reference to the quality of the decision making process. In the present context, 'beyond power' simply refers to purported reviewable action which is not authorised by s 173(2) of the Act. 308 Mr Searle said that in administrative law the term ultra vires refers to jurisdictional error. Determining whether there is jurisdictional error requires determining whether the consequences of the error is a nullity: See Plaintiff S157/2002 v Commonwealth of Australia (2003) 221 CLR 476 and SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43. Mr Searle added that just because there may be non-compliance with a statutory condition does not necessarily mean there has been a jurisdictional error rendering a decision invalid: See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 309 Mr Searle further submitted that a procedural requirement serving essentially administrative purposes, or which has not lead to adverse consequences is unlikely to affect the validity of an exercise of power: See Minister for Immigration and Citizenship v Szizo (2009) 259 ALR 405. The term 'beyond power' has similar meaning under the Police Act. 310 Mr Searle argued that it was not part of the Commission's role on review to investigate the quality of the Commissioner's consideration of the applicant's written submission. This is because: a. Section 173(5) merely sets out three preconditions to making an order, namely the provision of written notification of the "basis" for the proposed order(s) (relevant facts/circumstances identifying the 'misconduct' and/or 'unsatisfactory conduct'); sufficient time for the police officer to make submissions; and a requirement that the Commissioner "take into consideration" any written submissions made; b. Hence, so long as the relevant facts/circumstances identifying the 'misconduct' and/or 'unsatisfactory conduct' are set out in the notice, the Commission's role is not to investigate (let alone determine the review on the basis of) the adequacy of those matters; c. Provided it is clear that the Appellant has taken the police officer's submissions "into consideration" (as opposed, to refusing to look at them), it is not for the Commission to investigate (let alone determine the review on the basis of) the quality and extent of that "consideration"; d. It is sufficient that the Appellant has taken into account the "substance" of the Applicant's submissions: Minister for Local Government v Sydney City Council (2002) 55 NSWLR 381 at 426. e. Indeed, as Sackville J stated in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 at [59], "the extent of the required intellectual process must depend on the nature of the information and its degree of relevance." 311 In any event, Mr Searle put it was not open for the Commission to conclude an order was 'harsh, unreasonable or unjust' purely because of any perceived procedural defect. There must be a proper evidentiary basis to conclude that, had a proper consideration been given, a decision would not have been made or would not have been reasonably open. No such basis exists in this case. 312 Mr Searle said that as a starting point, there was a presumption of regularity in the procedure leading up to, and the making of the decision, including by the Commissioner's Advisory Panel (CAP). There is no obligation to disclose the deliberative or thought processes, other than by reference to the reasons themselves. Unless a procedural defect results in substantive unfairness, it does not, of itself, result in a finding of being 'harsh, unreasonable or unjust'. There was insufficient evidence to permit the Commission to reach a conclusion that the Force had not given proper consideration to the applicant's submissions. 313 Mr Searle referred to the meaning of 'harsh, unreasonable and unjust' and cited Mahoney v Commissioner of Police; Byrne v Australian Airlines Limited; Bankstown City Council v Paris and Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167. 314 Mr Searle submitted that the applicant was given an opportunity to respond to the allegations and he did so. He could not identify any defect in the investigation, or the process, which, had it been done differently, would have led to a different outcome. A procedural defect must cause, contribute or lead to substantive unfairness. This did not occur. See Miller v Commissioner of Police [2002] NSWIRComm 296; Mason v Electricity Commission of New South Wales t/as Pacific Power (1995) 62 IR 436; Antonakopolous v State Bank of New South Wales; McCabe v NSW Police Service (unreported, Cahill J, Vice President, Hill J and Connor C, Matter No IRC3112 of 1994, 3 July 1996); Bigg v NSW Police Service; Newton v New South Wales Police Service; Burrows v Commissioner of Police; Giardini v Commissioner of Police and Little v Commissioner of Police (No 2). Mr Searle added that the correct test is to ask whether a different decision would have been made, had the correct procedure been followed. While the applicant catalogued a whole series of complaints about the process he had not demonstrated how the integrity of the process was compromised, or so flawed that it would have changed the outcome. 315 Mr Searle said that there was no controversy that the Force had complied with steps (a) and (b) of the process under s 173(5). His main complaints concerned the Force's obligation to take the applicant's submissions 'into consideration' and whether Supt Fehon was the real 'author' of the orders. Mr Searle argued that Supt Fehon had considered the substance of the matter, discussed the applicant's response with the Investigators and determined the matter on all of the information he had before him: See Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381. 316 Mr Searle said it was not for the Commission to investigate the quality and extent of the Superintendent's consideration. It does not require a detailed justification for each point. Just because the applicant disagrees with the weight applied or reasons given, does not mean the Force did not take his submissions into consideration. The evidence was that Supt Fehon had read and considered the substance of the applicant's submissions. 317 Mr Searle said that the applicant could not point to any irretrievable prejudice, or irredeemable flaw, by not producing certain documents which did not give him a fair and proper opportunity to put his case. He said the orders were valid and nothing was contained in them which indicated Supt Fehon misdirected himself or had not undertaken a proper consideration of the issues. 318 Mr Searle addressed the criticism of the use of the word 'integrity' in the order, rather than misconduct. The two concepts involve the same considerations, particularly given the importance of integrity in the New South Wales Police Force. If findings of misconduct are sustained, the applicant's lack of integrity must follow. It is wholly misconceived to treat misconduct and integrity as foreign and distinct concepts. 319 Mr Searle said the Force's duty is to give 'reasons for making the order' (s 173(7)(c)) so as to inform. It does not require giving reasons for the findings of misconduct: See Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500. Reasons will be adequate if the officer concerned is able to discern and understand why the decision was made. It is misconceived and unrealistic to impose on the Force the same standard of reasons that apply to a judge or administrative decision maker. Authorities involving judicial duty to give reasons are not relevant to the s 173 process: See Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Wd 462. 320 Even if the principles to be applied are those applicable to administrative decision makers, reasons should be given a 'beneficial construction': See Minister for Immigration and Ethnic Affairs v Wu Shan Liang. In addition, the Commission has expressly rejected an inadequacy in reasons as weighing in favour of a removal being harsh, unreasonable or unjust: See Newton v New South Wales Police Service. In any event, Mr Searle argued that any shortcomings are cured by the Commission's fresh and independent review, including any new evidence. 321 Mr Searle said the correct legal test is that stated by Boland J (as he then was) in Hosemans v Commissioner of Police in which his Honour referred to the reasons as 'capturing the essential reasons' and are 'sufficiently comprehensible to allow an officer 'to mount a coherent and comprehensive challenge to them''. 322 Mr Searle accepted and regretted that the first order did not set out whether it resulted from a complaint that had been, or was being, investigated under Div 5 Pt 8A of the Act. However, this does not lead to a conclusion that the order was 'beyond power'. It is merely a 'signpost' as to whether the complaint is under Pt 8A of the Act. There were no adverse consequences for the applicant as a result and he was not denied procedural fairness by its omission. 323 Mr Searle noted the weight to be given to character references: See Toshack v Commissioner of Police [2009] NSWIRComm 31, and submitted that such evidence has limited value in demonstrating whether the applicant will continue to exhibit the behaviours which led to the orders. 324 In dealing with the interests of the applicant and the public interest, Mr Searle said that the public interest is rarely unitary and involves balancing competing interests. In the police context it will include the importance of maintaining a disciplined Police Force, rule of law and the community expectation of police behaviour. Where misconduct is proven, the applicant's interests will become less relevant. 325 Mr Searle said the Commission should dismiss these applications or uphold the orders under s 177 of the Act, after finding that the applicant engaged in one or more of the incidents of misconduct. 326 In oral submissions, Mr Searle conceded that not all the issues of misconduct were of equal seriousness. The most serious were those involving the COPS searches and behaviour in relation to Mr Williamson and Const Laurie. However, when viewed in totality, the outcome was not disproportionate to the applicant's behaviour. Mr Searle also noted that a number of the alleged procedural defects were now 'live' issues before an Appeal Bench in Reid-Frost and Commissioner of Police [2009] NSWIRComm 43. No decision had yet been published. 327 In examining the evidence, Mr Searle said that each of the reasons given by the applicant for his behaviour on 5 and 6 December 2006, do not stack up and are not plausible, reasonable or rational. He knew Mr Williamson was seeing Const Laurie and this completely explains his behaviour. The applicant's own evidence in his first directed interview was that he had broken up with Const Laurie on 19 November 2006, and had learnt of her relationship with Mr Williamson the following Saturday (being 25 November 2006). The applicant had to say it was 9 December 2006, some three weeks later, to avoid a conflict of interest of when he really knew of their relationship. He later acknowledged that it 'looked bad'. 328 Mr Searle said that the applicant even accessed the COPS system for the purposes of this case; clearly demonstrating that he is not able to properly separate his own personal interests from his official duties. 329 Mr Searle put that the applicant's evidence had been in a state of flux. On the one hand, he accepted he should have told someone about the conflict of interest, but denies he had a responsibility to do so. He said he did not recognise Mr Williamson at Shades café, but he had spoken to him only days before for around 10 to 15 minutes. On the other hand, Mr Williamson's evidence was plausible and he was unshaken in the witness box. Mr Searle said that perhaps the applicant did not intend to harass or intimidate him but, understandably, that was how he felt. 330 Mr Searle noted that the applicant admitted using police resources for private purposes, but claimed he was entitled to do so because of his rank. Again, it demonstrates his inability to distinguish personal and official interests. 331 In the second order, the applicant conceded he should have created a custody record for one of the young persons. There was sufficient evidence for a reasonable conclusion that custody records should have been created for all four young persons. The applicant had even admitted he had read them their rights. In respect to Ms Scowen, the applicant acknowledged that a custody record should have been created and as he was the senior officer in charge, he should have ensured it had been done. In reply 332 Mr Docking proposed to give a written response to where he believed Mr Searle had given incomplete or misleading quotations of authorities. Mr Docking subsequently provided the applicant's reply submissions in Probst, and included a table, cross referencing the Force's written submissions with the Probst submissions. I have taken those matters into account to the extent they are relevant to my conclusions in this matter. CONSIDERATION Framework of decision 333 In this case, the Commission is required to make findings on each of the 16 Issues which were the subject of the two orders made against the applicant on 4 February 2009 and 13 August 2009. It would seem obvious enough that the more serious of the allegations are those relating to the applicant's involvement with, and conduct surrounding, his relationship with Const Laurie and Mr Williamson. Issues 1 to 7 in the first order are all related to this question and, in my opinion, if the allegations are found to be sustained, then not only will it follow, as a matter of logic, that the allegation of the applicant's untruthfulness (Issue 7), would be sustained, but such a finding would be a sufficient basis (without recourse to the other nine issues) for the orders made by Supt Fehon. Conversely, if the Commission accepts the applicant's explanations for his conduct in Issues 1 to 7, then it is unlikely that a finding of untruthfulness during his directed interview would stand. Moreover, I agree with the Force's Counsel, that if each of the other findings on the remaining nine issues are sustained, there would unlikely be sufficient grounds for the orders which have been made. Put another way, on their own, the sustained findings on the other nine issues were not of such seriousness as to justify the severity of the orders made. Nevertheless, Mr Searle argued that adverse findings on these issues may well result in a conclusion that corroborated that the applicant was: a) unable to differentiate between his personal interests and those of the Force; and/or b) he was taking short cuts to avoid work and save himself some time. I shall return to these matters later. 334 The Commission must also make findings on the numerous claims of procedural unfairness raised by the applicant's Counsel as to whether such matters constitute the orders being 'harsh, unreasonable or unjust' and/or 'beyond power'. In this respect, I will very much rely on the decision of the Full Bench in Reid-Frost. This Full Bench authority had not been published before final submissions in this case. Nevertheless, that decision puts to rest some of the procedural matters raised by the applicant in this case and as also determined by me in Probst. I note that judgement in Probst was not delivered until after final submissions in this case. Issue 1 - Inquiries in relation to Mr Daniel Williamson on 5 December 2006, including inappropriate COPS access 335 I turn then to the applicant's explanations and defence of the allegations as to his conduct surrounding the relationship with Const Laurie and Mr Williamson. The essential question appears to be whether the applicant was aware of Const Laurie's relationship with Mr Williamson at the time he: a) attended his friend's engagement party (2 December 2006); b) made the COPS entries (5 and 6 December 2006); c) visited Mr Williamson's workplace (6 December 2006); d) attended the Triathlon (10 December); and e) drove past Shades Café (11 December). 336 In my opinion, the applicant's explanations were riddled with so many highly unlikely and implausible coincidences that his evidence of when he knew of Const Laurie's involvement with Mr Williamson is utterly unbelievable. Consequently, I am comfortably satisfied, on the balance of probabilities, that the applicant knew that Const Laurie was in a relationship with Mr Williamson, at least by 5 December 2006. Both Mr Williamson and Const Laurie said they believed their relationship began in the first week of December. This seems to be confirmed by the applicant's own witness (Mr Zaicew) who said he was told on the night of his engagement party (2 December 2006) that Const Laurie had left the party, then returned and was openly seen kissing Mr Williamson in the kitchen. I must say that the applicant made a very good fist of coming up with an explanation or rationale for every single occasion he had cause to interact with Mr Williamson. Maybe one, possibly two, could have been a coincidence, and he may have got away with it, but I cannot accept the plethora of nonsense that the applicant created in order to explain or justify his conduct in early December 2006. 337 Nevertheless, in putting the most credible light on the applicant's behaviour, it is possible that he was genuinely upset and distressed by his break-up with Const Laurie and this may have clouded his better judgement. However, even if the break-up did occur on 19 November 2006 (which I do not accept), this does not serve as a basis for concluding he only found out about her new relationship on 9 December 2006. I firmly believe he found out about her relationship with Mr Williamson shortly before the 5 December 2006. On the other hand, I would observe that his alleged upset and distress, sits rather curiously with his own evidence that it was he who finally decided to end the relationship when he delivered her belongings back to her on 9 December 2006. However, the two crucial pieces of evidence which he could not explain away was, firstly, the conversation with Insp Williams on 10 December 2006, at the Staff Christmas Party and secondly, when he said in his record of interview that he found out about Const Laurie's new relationship the following Saturday after 19 November 2006 (i.e. 25 November 2006). I shall come back to this evidence shortly. 338 Returning to the unlikely list of coincidences, the applicant would have the Commission believe, I refer to the following: Issues 1 and 2 - COPS access in relation to Mr Williamson on 6 December 2006 339 The applicant would have the Commission accept he just happened to be in the Flynns Beach area (and actually in Const Laurie's street) performing 'pro active' policing on 5 December 2006. The contest over whether Flynns Beach is, or was, a 'hotspot' for criminal activity amounts to nothing more than a 'red herring' designed to further explain why the applicant just happened to be in Const Laurie's street. I also do not accept that the applicant was in the Port Macquarie area buying a meal for himself and his son. This was a further attempt to bolster his claim as to why he was in the area outside of his normal operational area. I note that in his first directed interview on 28 February 2007, he makes no mention of picking up a meal for his son. There was no evidence that the applicant told his partner that night, SC Rider, that he was going to Flynns Beach to, either pick up a meal for his son, call in on Const Laurie or undertake 'pro active policing' during his meal break. If he was truly performing 'proactive policing' one might wonder why he was doing so in his meal break and why he knocked on Const Laurie's door, but found no one was home. Moreover, there was no evidence that the applicant had ever before conducted 'proactive policing'. 340 As to the applicant's claim that Mr Williamson's vehicle looked 'suspicious' and that was why he made the COPS inquiry, I make the following observations: a) Mr Williamson's vehicle was not parked in an unusual manner; b) there is nothing inherently unusual with a business vehicle, parked well after business hours, in a residential street; c) being an unattended vehicle at 10:30pm at night hardly rates the vehicle as 'suspicious'; d) the vehicle was brightly coloured (blue) with the name, address and phone number of the owner's business plainly visible; and e) the number plates were personalised plates with 'DW' plainly visible. 341 In my view, there was absolutely no reasonable or sensible basis for the applicant to conclude that Mr Williamson's vehicle was a suspicious vehicle which warranted a COPS inquiry. In fact, I believe the applicant knew it was Mr Williamson's vehicle, confirmed by his business address and personalised plates, and he undertook an improper COPS inquiry to see if he could learn more about Mr Williamson which might be damaging. 342 Returning then to the applicant's criticism of Insp William's note of their conversation on 10 December 2006, the applicant said that the conversation was designed to fill 'a huge hole' in the investigation. Yet, the applicant does not deny the conversation took place. However, his explanation was that he was misquoted and parts of the conversation were omitted. In my view, it was the applicant, whenever there was a hole in his story or explanation, who came up with a reason or basis for his behaviour, no matter how implausible or unlikely. He had the obvious motivation for doing so. I do not accept that Insp Williams had any adverse motivation which would explain why he would inaccurately record what the applicant had told him. 343 Mr Docking alleges something 'fishy' about Insp Williams' note of the conversation. This allegation, if true, would amount to a scenario in which Insp Williams had conspired with others to create a false conversation directly adverse to the applicant's interests and then falsely insert it into the running sheet to give the impression that it was a contemporaneous note of the conversation. This scenario, apart from its seriousness, is just so preposterous as to be completely absurd. 344 As to the applicant's answers in his record of interview, I set out the evidence in full: Question: When did your relationship with Ms Nerida Laurie conclude? Answer: 19 November 2006. Sunday I think it was. Question: When did you become aware that Mr Daniel Williamson was involved in a relationship with Nerida Laurie?? Answer: The following Saturday. Question: How did you find out this information? Answer: I returned Nerida's property that she had left at my house, to her house. About 8.30am on the Saturday morning, the same vehicle was parked out the front of her house that morning. I put two and two together, even after her denying her being involved or seeing any one at that time. Since that day I have had nothing to do with Mr Williamson and have gone out of my way to stay away from him. Question: What date was the following Saturday: Answer: The 9 December 2006. (113 of ex G) 345 In my view, this was no error or mere mistake on the applicant's behalf. In my opinion, when he said 'the following Saturday', he immediately realised it would have him knowing about the relationship prior to 5 December 2006. I believe he said that it was 9 December 2006, to further protect himself, even though it was some three weeks after 19 November 2006, and would have appeared completely contradictory. 346 Not satisfied with one COPS inquiry, the applicant actually made three inquiries that night and two more the following day - one allegedly involving a firearms inquiry. After the first night's inquiries, there was no reasonable basis to conclude that Mr Williamson's vehicle was suspicious. Moreover, I note that, at no time, was an intelligence report created about the suspicious vehicle. The applicant's answer to this was that he did not believe it was necessary. However, he had made five COPS entries over two days about one 'suspicious' vehicle. 347 It follows from the foregoing, that I find the allegations in Issues 1 and 2 sustained and that the applicant had thereby breached the Force's Policies, Guidelines and Code of Conduct. It must also follow that I find that he was untruthful during his directed interviews and before this Commission, in particular, when he denied knowing Const Laurie and Mr Williamson were in a relationship at the relevant time. Issue 3 - Visit to Mr Williamson's workplace on 6 December 2006 348 Again, the applicant would have the Commission believe that he just happened to be conducting covert surveillance, out of work time, on Mr Williamson as a result of an ongoing 'hunch' over Mr Williamson's suspicious vehicle. This visit took place, notwithstanding that the earlier COPS accesses had pointed to nothing which was of any ongoing concern in respect to criminal activity. The applicant would have the Commission believe that it was pure coincidence that Mr Williamson was, at that time, in a relationship with Const Laurie, but he had no knowledge of it. I reject this explanation. In my view, the applicant was continuing to make inquiries about Mr Williamson in order to gain more information about him which he might use for his own personal interests. I agree, it was covert surveillance. However, it had nothing to do with any reasonable suspicion of a police officer that Mr Williamson had been, or was to be, involved in any criminal activity. In short, it did not constitute genuine police operations. I arrive at these conclusions for the following additional reasons: a) The applicant knew Mr Williamson was in a relationship with Const Laurie; b) It is very doubtful, given what the applicant knew from his earlier COPS inquiries, that there was any real police purpose in further pursuing Mr Williamson; c) Mr Williamson said that the applicant had asked personal questions about where he lived and whether he had children. He knew the applicant was a police officer and Const Laurie's former partner. This evidence was not almost three years old, as complained about by the applicant. Sgt Gilmour records the complaint two weeks after it happened. One might ask rhetorically, what possible reason was there for Sgt Gilmour to make up what Mr Williamson had told him? I accept Mr Williamson's evidence. I also note that asking questions about Mr Williamson's children was totally unrelated to the alleged reason why he was there; d) The applicant made no note book entry about this visit, as might have been expected; e) There was no evidence that the applicant had conducted similar covert surveillance in his own time before. I consider it highly unlikely that the applicant would have gone to the lengths he did to make inquiries of Mr Williamson if it was not for some personal reason, knowing that Mr Williamson was now Const Laurie's boyfriend; and f) The applicant admitted in his record of interview that he had gone to Mr Williamson's workplace ' for my own personal reasons' being concern for Const Laurie's welfare. In my view, it was an extraordinary and highly improbable connection that the applicant would link Mr Williamson's car in Flynn Street with Const Laurie's safety if he was not already aware of their relationship. 349 Const Laurie's evidence was that she had phoned the applicant on 6 December 2006, and was furious that he had visited Mr Williamson. She had sworn at him and when he told her his reason for the visit was to get a price on a shed, she said this was 'bullshit'. She warned him to 'stay away from Dan'. The applicant did not deny this conversation, although he studiously avoided mentioning anything about visiting Mr Williamson's workplace. Rather, he said she had only asked what he was doing in her street the other night. He said he had also asked if she had a new boyfriend yet. In my view, this was nothing more than a false attempt to corroborate his claim that he had not known she was seeing Mr Williamson at the time he saw his vehicle near her house and had visited his workplace the next day. The applicant's argument falters when one considers the question – how did Const Laurie know he was outside her house if, as he said in his evidence, she was not home at the time? Moreover, it begs the question as to why Const Laurie was so angry, if it was only that he was in her street that night. In my opinion, Const Laurie's anger is more likely to have been evident because Mr Williamson had told her that the applicant had visited him at his workplace and was asking him personal questions. It seems perfectly understandable that Const Laurie would have reacted as she did. I accept this evidence. Consequently, it confirms that the applicant was fully aware Const Laurie had been defending Mr Williamson over the applicant's intrusions. 350 Accordingly, I accept that the applicant inappropriately harassed and intimidated Mr Williamson by visiting his workplace for purely personal reasons unrelated to any genuine policing interest, or at the very least, he conducted himself in conflict with his obligations as an off duty police officer. It follows that this finding strengthens my earlier conclusion that the applicant was untruthful in denying that he did not know Const Laurie and Mr Williamson were in a relationship at the time. Issue 4 - Incident on 10 December 2006 at the Children's Triathlon 351 In view of my findings on the applicant's behaviour on 5 and 6 December 2006, I have no reason to doubt Mr Williamson's account of what occurred at the Triathlon on 10 December 2006. Silly points impugning Mr Williamson's credit because of his evidence that the applicant was behind him or beside him, takes the applicant's case nowhere. In any event, when Mr Williamson moved, the applicant would have been both behind and beside him. Nor do I think it particularly relevant that the applicant's stated aim of being in the vicinity, was to talk to Mr Lenthal. The applicant said that even though he had not met Mr Lenthal, he had come over to the Fire Truck to see if he was there – another amazing coincidence. I believe it was his excuse as to why he had come out of the Police Station and ensured that Mr Williamson saw him. I note, of course, that Mr Lenthal did not corroborate the applicant's version of events. 352 The applicant does not deny he saw Const Laurie that day with a blond haired male and that he had a conversation with her soon after in which he said 'Do you know how hard it was to see you standing there with that bloke'. Given that the applicant's own evidence was that he knew of Const Laurie and Mr Williamson's relationship on 9 December 2006, and had spoken to him on 6 December 2006, I am satisfied that the applicant easily recognised Mr Williamson at the Triathlon and had deliberately intended to make his presence known, and to make him feel uncomfortable. I accept Mr Williamson's evidence that while he may not have told Sgt Gilmour when he made his complaint that he had felt 'awkward' or 'intimidated', it was how he felt. Moreover, I believe it was the applicant's express intention to make him feel that way. Issue 5 – Incident on 11 December 2006 at Shades Cafe 353 The applicant denied harassing or intimidating Mr Williamson by driving past Shades Café, a number of times, on 11 December 2006. He said he was collecting a parcel for his mother and it was pure coincidence that Mr Williamson may have seen him. 354 Whether the applicant was collecting a parcel for his mother or not is not the point. Nor is it the point that he always wore dark sunglasses during the day and was in his personal vehicle. Mr Williamson had already had at least two recent direct incidents in which he had seen the applicant close up. His vehicle was one of a few in the main street at that time. By his own account, Mr Williamson's car was one which was very distinctive and very recently of great interest to him. It is not improbable that Mr Williamson would have recognised the applicant, particularly as I accept that he drove past the café more than once. It is likely, given the events of those recent days, that the applicant was merely extending his level of harassment of Mr Williamson. 355 I find this issue sustained. It follows that the applicant was less than frank in his answers in his directed interview and in these proceedings. He was in breach of the Force's Code of Conduct and Guidelines. Issue 6 – Alleged failure to declare his knowledge of a relationship between Constable Nerida Laurie and Mr Williamson 356 This issue was found to be sustained, even if one accepts the applicant's explanations. However, he denied having an obligation to report the conflict of interest between his alleged legitimate police inquiries and his former relationship with Const Laurie, because he had only became aware of the relationship between Const Laurie and Mr Williamson after his COPS inquiries and the visit to Mr Williamson's workplace. As I have already found that the applicant was aware of this relationship on or about 5 December 2006, his defence of his primary position cannot stand. Even so, he had an obligation to report his activities, as at least a potential conflict of interest, subsequent to 9 December 2006. He did not do so. However, I believe he chose not to do so because he knew what he was doing was wrong and did constitute an actual conflict of interest and that his conduct was in breach of the Force's Policies, Codes and Guidelines. He agreed he told no one of his COPS entries or of his visit to Mr Williamson's workplace and made no entries of these activities in his note book. I believe this was intended to reduce the paper trail as much as possible and avoid alerting his supervisors to his inappropriate conduct. 357 Much was made of the date when the applicant and Const Laurie's relationship ended and there was criticism of Supt Fehon for not making a finding on this issue. However, that issue misses the point entirely. The question was not that date, but the date when the applicant became aware of the relationship between Const Laurie and Mr Williamson. 358 One pivotal point in the story spun by the applicant related to the evidence of his friend, Mr Zaicew and his engagement party on 2 December 2006. The applicant, Const Laurie and Mr Williamson were in attendance. Maintaining his line as to when he knew of Const Laurie and Mr Williamson's relationship (9 December 2006) the applicant insisted that he did not know Mr Williamson at that time, and certainly did not know he was in a relationship with Const Laurie. It was Mr Zaicew's evidence that he had heard 'on the grapevine' that as soon as Const Laurie's relationship had ended (at least as far as he knew in late November 2006), Const Laurie started dating Mr Williamson. This would put it around the first week of December 2006. Mr Williamson also confirmed the date as around the first week of December. Moreover, Mr Zaicew said that Const Laurie and Mr Williamson were seen kissing in the kitchen at the party. Mr Zaicew said he did not say anything to the applicant until the following Friday, 8 December. 359 In my view, it strains credulity that the applicant would not have been told of Const Laurie and Mr Williamson's relationship by one or more of the many mutual friends that would have attended the party on 2 December 2006. Mr Zaicew said the applicant told him on 8 December 2006, that Const Laurie was seeing someone else named 'Dan' but had not said how he found out. As I have earlier said, I would conclude, on the balance of probabilities, that the applicant was aware of Const Laurie and Mr Williamson's relationship by 5 December 2006, thereby completely explaining his many subsequent coincidences as deliberate and intentional acts. 360 A number of other matters arise from Mr Zaicew's evidence which give me cause to be cautious in accepting it. Firstly, it seems curious that for someone who was hosting his own engagement party, he knew a lot about the applicant's, Const Laurie's and Mr Williamson's movements that night and that Mr Zaicew believed the applicant and Const Laurie appeared 'pretty friendly'. Secondly, Mr Zaicew said that he knew that at his wedding in May 2007, that the applicant and Const Laurie left in a taxi together. He must have been very observant when, as the groom, so much would have been happening around him. 361 The applicant attempted to construct a series of incidents to prove that his relationship with Const Laurie was not only warm and friendly up to late November 2006, but included a casual sexual relationship. The applicant relied on Const Pacey's evidence that he had conveyed both of them to Const Laurie's home from a farewell party in late 2006. However, all that Const Pacey said he saw was them both exit the vehicle and head towards Const Laurie's block of units. Moreover, it hardly seems they had left together when Const Pacey said he picked up Const Laurie as she was walking away from the function and the applicant was already in the vehicle. 362 In my opinion, the evidence of Const Laurie as to the relationship with the applicant after they broke up in August 2006, makes perfect sense, and I accept it. She denied they had maintained an intimate relationship until November 2006. She did not want to make an enemy of him, but felt he had difficulty coping with, and accepting their break-up. This is curious given it was the applicant's evidence that it was he who had initiated the break-up on 9 December 2006, when he returned her belongings. Const Laurie said she did not fear the applicant, but just wanted him to leave her alone. He would seem to be at social places where she was, had driven past her house, visited her grandmother and showed her the engagement ring he had intended to give her, followed her in Wauchope and had approached another officer she had visited (SC Prott). She denied the applicant had stayed at her house on the night of the farewell party and said they had argued outside her home. She denied sleeping with the applicant on the night of 30 or 31 October 2006. She referred to an incident on Melbourne Cup Day 2009 at Finnian's Tavern and said that the applicant had been harassing her and the barman had actually asked if she was okay. I accept Const Laurie's evidence and reject the applicant's claims that they had maintained a close personal relationship until late November 2006. In my view, Const Laurie's evidence is entirely consistent (notwithstanding it was hearsay) with what a friend of the applicant had said to Insp Heap in a phone conversation on 28 December 2006 (see par 183). 363 I am fortified to this conclusion when the applicant gave himself away, in my view, when he said he only knew of Mr Williamson's involvement 'in my private life' on 9 December 2006. Why would he inadvertently refer to Mr Williamson's involvement in his 'private life', when, on his own evidence, he had broken up with Const Laurie on 19 November 2006. Mr Williamson was certainly not involved in the applicant's private life at that time. This curious use of words underscores the applicant's hostility to him and motivation for wanting to 'get the dirt' on him. 364 I also believe that the applicant's claim that he continued an intimate casual relationship with Const Laurie up to November 2006 to be false because he had said she was paranoid and secretive about anyone finding out. In my view, this alleged secrecy was a clever, but untrue explanation for the fact that the applicant had no evidentiary basis and no witnesses for his claim that their close relationship had continued long after it had ended. 365 In addition, the applicant went through a detailed point by point criticism of the Force's affidavit evidence. It was replete with rhetorical questions, opinions and unsupported allegations. He used this response to make accusations that other people believed Const Laurie was a liar and to imply that she was having sexual relations with several male officers and was constantly changing boyfriends. In my judgment, this was a carefully crafted, but highly prejudicial attack on Const Laurie's credibility designed to portray her in the worst possible light. 366 I also reject the applicant's claims that he has been harassed and stalked by Mr Williamson. None of the other officers mentioned as independent witnesses to this behaviour were called to give evidence to corroborate such claims. In any event, I believe it highly unlikely that Mr Williamson would be harassing or stalking a police sergeant, particularly when he was no longer in a relationship with Const Laurie. 367 The applicant claimed that Mr Williamson would glare and stare at him when he was attending the Police Station during a custody changeover. He just happened to preface these comments by suggesting that Mr Williamson was having domestic violence issues with his ex-wife and her new boyfriend. In my view, this reference was irrelevant, and purely designed to unfairly infer there were unsavoury allegations about Mr Williamson in order to discredit him. Issue 7 - Alleged untruthfulness during directed interviews on 28 February 2007 and 13 March 2007 368 Having made earlier findings as to the applicant's knowledge of when he knew of Const Laurie and Mr Williamson's relationship and the findings I have made as to his subsequent actions, it is axiomatic that the allegations of untruthfulness in his directed interviews on 28 February and 13 March 2007, have been made out. 369 In this light, I do not consider it was unfair for this allegation to be raised two years after the incidents in question. As the applicant knew his answers in the interviews were less than frank and untruthful, it is somewhat disingenuous for him to claim unfairness when such a finding was made. He would have been well aware that such a finding was an obvious corollary of the other earlier findings of the Investigator and Supt Fehon. It is clear that the applicant did not explain how it could be said it was unfair, except to say that an allegation of untruthfulness should have been put directly to him in a further interview. In my view, this complaint takes the applicant's case nowhere. Moreover, I think the applicant would be unwise to quibble with the fact that the Force did not proceed to treat the untruthfulness as a criminal matter, notwithstanding that such a course was considered. I apprehend the result might have been more severe than the one he ultimately received by Supt Fehon's orders. Issue 8 - Use of identifiable police envelopes in May 2007 for private purposes 370 On its own, this allegation, particularly as it was not denied, might appear to be a trivial matter warranting little more than verbal counselling. Yet, despite his admissions, the applicant attacked its inclusion in the s 173 notice on the basis that it related to an unsustained finding in respect to Mr Skinner's complaint of harassment. He said that, in any event, he did not need prior approval from Management, because he was Management (presumably this rationale meant he could approve the use of the envelopes himself). He added another explanation - he did not have a blank envelope. I reject the criticism that this matter could not be relied upon by Supt Fehon because it arose from an unsustained finding. The issue was not whether he had harassed Mr Skinner, but whether he had misused police resources. The matter was plainly admitted, proven and easily distinguished from the unsustained finding. I must add that I am very uncomfortable with the applicant's constant insistence on his explanations for every adverse finding against him, no matter how insignificant, and even when he admits to the wrongdoing. I am concerned that the applicant maintained a steadfast, almost arrogant refusal, to concede anything which was harmful to his case. 371 As to his other rationale, I find that his defence of being part of Management to be disingenuous and ludicrous. It cannot really be suggested that any conduct which needed management approval means that any officer in management can approve such conduct of him or herself. This would lead to bizarre and unacceptable consequences. The policy must be read sensibly and practically. The whole purpose of obtaining a more senior officer's approval for such conduct is to avoid the very circumstances in which the applicant finds himself; misusing police resources for personal benefit and probably to apply inappropriate pressure to members of the public. The resultant conflict of interest is glaringly apparent. On the balance of probabilities, I find this allegation sustained. Issue 9 – Wearing of police uniform at the Consumer Trader and Tenancy Tribunal (CTTT) in May 2007 372 The above comments under Issue 8 have similar application in this allegation. The applicant maintained it was common practice for officers to wear parts of their uniform, with no identification markings while on duty. He tried to make the most of a social event in which a number of officers, wearing police cargo pants, were purchasing and consuming alcohol. However, this is not the point. There is a marked difference between a social gathering of officers and wearing, even part uniform, to a Tribunal. In my opinion, it might reasonably be presumed, by the ordinary bystander, that it had the intention of emphasising the applicant's occupation and position of authority. It is no answer to claim it related to an unsubstantiated claim of harassment of Mr Skinner. The issue, like the earlier one, was admitted, and concerned the inappropriateness of the applicant's off duty behaviour. On the balance of probabilities, I find this allegation sustained. Issue 10 – Wearing of police uniform at Heather Street on 20 May 2007 373 The applicant did not deny that he attended the Unit in Heather Street while on a meal break in full uniform and driving a police vehicle. He criticised the allegation as him being singled out, while it was common practice for police officers to attend to minor personal matters. He had never been told not to do so and there had been no complaint about the matter. Again, the applicant misses the point entirely. His own admissions demonstrate that he has difficulty reconciling his personal interests with official police business. He also claimed that he could authorise himself to use police resources for minor personal use. I have earlier commented on this defence in paras 370 and 371, and will not repeat it. On the balance of probabilities, I find this allegation sustained. Issue 11 – Incorrect or misleading entries in the Mandatory Training Records 374 The applicant's defence as to this allegation was that there was no motive for his conduct, no personal advantage and he had not received sufficient training on the recording system. He said this was a performance, not a conduct issue. As to the latter point, it was accepted that the applicant had been an EDO for five years and that such training was 'on the job'. The facts were that the audit prepared by Sgt Schultz identified numerous anomalies and that his mass data entry had saved him time. The fact that there was no personal advantage for him is irrelevant. He simply was not meeting the performance standards of an EDO. This was a completely sound basis for including this matter in a s 173 order which deals with an officer's unsatisfactory performance. On the balance of probabilities, I find this allegation sustained. Issue 12 – Falsification of firearms training scores 375 The applicant accepted he had entered incorrect scores for a number of officers undergoing weapons training. The applicant's explanation for why he had done so is even more creative than his other excuses and explanations. He said he had entered the incorrect, but perfect scores for the officers because a second score book had gone missing. He described his actions as an interim solution until the score books turned up and, in any event, no one who received the prefect score would have failed anyway. He had not acted for any personal gain and had acted openly, consistently and transparently. 376 I must say, I have serious doubts as to the explanation of a missing score book. My doubts are fortified by the fact that the applicant had never raised, let alone sought the approval of his supervisors for his interim solution. It is no defence to claim that no officer passed the training who should not have. The applicant seems to have a predilection that if no one is affected by his unsatisfactory behaviour, then that fact makes his actions perfectly reasonable and acceptable. That cannot possibly be a rational defence. In addition, the alleged entry indicating the book was misplaced as 6 March 2007, does not even relate to the training days which had been investigated; namely, 14 November 2006, 13 March 2007 and 12 June 2007. 377 The applicant's reliance on SC Trotter's email seems to me to be confused or delusional as SC Trotter's evidence appears unequivocally to be related to the wrong year - 2007/8. He refers to training in the 2007/8 year, not in late 2006 and early 2007. The applicant criticised Sgt Williams for having no training in weapons instruction. But again, this misses the point. The applicant had made obvious incorrect entries in the score book and I find his explanation to be highly unlikely and implausible. On the balance of probabilities, I find this allegation sustained. Issue 13 – Failure to enter custody records for four young persons 378 The applicant admitted that he had failed to complete a Custody Management Record for one of the young boys, but he was not required to do so for the other three, because they had attended the Police Station voluntarily. The applicant sought to exculpate himself further by putting that no convictions were compromised, no evidence was lost and the reputation of the Force was not damaged. Yet again, the applicant seeks to defend his position by claiming no damage was done. 379 In my view, the issues of whether the boys had come voluntarily to the Station, whether the words in the CRIME, did not have regard for these circumstances , the words 'with a view to making admissions' are not in the policy, or that he had not been the arresting officer, are all 'red herrings' designed to deflect attention from the real questions of reality and significance; namely: 1. the applicant was the officer in charge at the time; 2. the boys had been detained for questioning in relation to the investigation of a criminal offence; 3. all four boys had their rights explained to them; and 4. there was not only sufficient evidence to establish that the boys had committed an offence (LEPRA's s 10), but all four boys admitted to the offence/s. 380 In my view, the applicant, in these circumstances, should have ensured that custody records were completed for the four boys. He did not provide a good example to other more junior officers. This was a matter appropriately considered under s 173 and I find, on the balance of probabilities, the allegation in this matter to be proven. Issue 14 – Failure to enter custody record for Ms Marnie Scowen 381 The applicant admitted that there had been no formal custody record created for the arrest and detention of Ms Scowen. However, he claimed that it was common practice not to complete custody records for offenders detained for offensive language and who are subsequently given a CIN. He demonstrated this by a COPS inquiry he had undertaken in that regard. 382 In my opinion, the applicant disregarded his obligations to follow safe custody procedures and create a custody record for Ms Scowen. The facts were: a) Ms Scowen was arrested for offensive language; b) she was brought to the Police Station for the purposes of a search for possession of prohibited drugs (see s 110 of LEPRA); c) she was searched for possession of drugs at the applicant's direction; and d) the applicant was the senior officer on duty and, while he was not the arresting officer, he still had a duty to ensure a custody record was completed. 383 Mr Docking suggested to Supt Fehon that it would be ridiculous to suggest that a Custody Sergeant would be aware of every aspect of the Custody Management Guidelines. On the other hand, he strongly criticised Supt Fehon for not knowing every aspect of s 173 of the Act, current precedents and Industrial Commission decisions. It seems to me that it is just as ridiculous to suggest that Supt Fehon would have such a detailed recollection. 384 The applicant's claim that other persons had been arrested for offensive language and no custody records were completed, is another example of the applicant's misguided and bewildering defence, that as others may have conducted themselves inappropriately, he should not be singled out. This is nonsense. He had a duty to act as a role model and as a good example to other less experienced officers. He failed to do so. 385 Moreover, I agree with Mr Searle's contention that by accessing the COPS system in this way (to find evidence for this case), the applicant demonstrated he has little understanding of the distinction between accessing COPS for his own personal interests and those of the Force. To suggest it was police work because he was conducting research is both nonsense and 'smart alec'. On the balance of probabilities, I find the allegation in Issue 14 sustained. Issue 15 – Alleged viewing of strip search 386 The Commission viewed the restricted CCTV footage of the search of Ms Scowen on the night of 21 August 2008. I accept that there were two searches of Ms Scowen - a fact not appreciated by Acting Insp Fehon. The evidence of the applicant was that he watched part of the first search out of concern for Const Barnden's safety as Ms Scowen was yelling and screaming and had a history of violence. I accept this evidence. The applicant then instructed Const Barnden to conduct a more thorough search. This is what Acting Insp Fehon found to be the strip search as Ms Scowen's pants were lowered. The applicant said he did not, and could not, view this search from outside the room. 387 Acting Insp Fehon saw no problem with the applicant viewing the first search and she conceded she did not break-up the two searches in her report. Having viewed the CCTV footage and considering the evidence of Acting Insp Fehon, I am unable to conclude, on the balance of probabilities, that this allegation has been proven. Issue 16 – Inconsistencies between interview and email 388 Three issues were identified by the Investigator as being inconsistent with his answers in the directed interview and a subsequent email to Acting Insp Fehon. As a result, it was found that he was untruthful or less than frank with Acting Insp Fehon. I accept the applicant's explanation that the location of the arrest of Mr R was a mistake. However, the second two issues concern whether Ms Scowen was arrested and by whom. I believe by his attempt to blame others in this incident, the applicant has deliberately understated his role in the matter. He said she had been arrested, but then claimed she had not been. When he understood that he was prohibited from acting as Custody Manager if Ms Scowen had been arrested, he changed his story again. However, in both his email and in his interviews he claimed to be the arresting officer (although he later said he was merely involved in the arrest). However, the COPS entry relating to the incident does not name him as such. 389 I do not consider the applicant was denied procedural fairness in not being able to respond to these issues in a further directed interview. He certainly did so in his formal response to the notice. Acting Insp Fehon, although confused about the date, gave evidence that she had considered his response, but it had not changed her opinion. In any event, the decision maker had also considered his response; noting, however that the applicant's case is that Supt Fehon did not do so, or did not do so carefully and thoroughly. 390 In view of these confusing and self serving responses, I find that the applicant was less than frank with Acting Insp Fehon. On the balance of probabilities, this allegation has been made out. Allegations of Procedural Unfairness 391 Much of the applicant's case focussed on allegations of procedural unfairness. Indeed, in two days of cross-examination of Supt Fehon he was asked very few questions by the applicant's Counsel as to the nature and seriousness of the actual allegations. Almost his entire cross-examination was focussed on the procedure and processes relevant to the preparation of the notices and the orders and his decision making process. By comparison, during Insp Williams' cross-examination, he was only asked questions about crime hotspots, the 10 December 2006 conversation with the applicant and whether he had followed up on other evidence. Given that he was the Investigator of the allegations, this appears to me to be quite extraordinary. In my view, this lends substance to the view that the applicant did not genuinely dispute, either the Investigation by Insp Williams, or his recommendations. 392 Many of the matters raised by his Counsel have been the subject of consideration by other members of the Commission and, more recently, by the Full Bench in Reid-Frost and by me in Probst. Indeed, so similar was this substantive limb of the applicant's case, that Mr Docking provided his submissions in Probst for the purposes of these proceedings. I shall return to my consideration in Probst shortly. However, I would make a number of observations as to the specific matters raised in support of the applicant's case that the failure to afford him procedural fairness rendered Supt Fehon's order/s 'harsh, unreasonable and unjust' and/or were 'beyond power'. These may be characterised as falling under the above headings: 1. A failure to provide the applicant with relevant documents in order for him to provide a comprehensive response; 2. A failure by the Force to keep proper records; 3. A failure of the decision maker to give proper consideration to the applicant's submissions to his show cause notice (notice and orders prepared by unknown persons); 4. A failure of the decision maker to give adequate reasons; and 5. A failure by the decision maker to take into consideration the applicant's excellent work record, good character and personal and economic circumstances. 393 Firstly, it is true that the applicant was refused access to a number of documents which had been sought both before and during these proceedings. However, merely repeating, 'parrot fashion', that because the applicant was denied certain documents, the process axiomatically was fundamentally flawed and unfair, is simply wrong. The applicant did not articulate what constituted procedural unfairness by a denial of access to documents. Moreover, what the applicant must demonstrate is that the documents were so fundamental and necessary for him to prepare a proper and considered response to the allegations. I agree with Mr Searle that the test is whether the denial of access to documents constituted an 'irretrievable prejudice or irredeemable flaw' (in the process). The applicant's case revealed neither of these two bases as having been established. Moreover, I consider that on any fair and objective analysis of all the material he was provided with, and considering his extensive and comprehensive responses, that it would not be open to find that the applicant was subject to irretrievable prejudice or that there was an irredeemable flaw in the process consequent upon the denial to provide him with access to certain documents. In this regard, I refer to my comments in Mahoney and Commissioner of Police, at par [128]: 128 Mr Docking successfully established that a number of documents relevant to the Commissioner's order were only made available to the applicant four days before the arbitration in annexures to Supt Wookey's statement. Mr Docking 's submissions on this point are well made. On its face, s174(5) of the Act was not complied with. However, in my opinion this deficiency was not decisive to a finding of whether the applicant was denied due and fair process. It is, however, one of the matters I consider relevant to the ultimate determination of this case. 394 Secondly, the applicant complained that he suspected the accuracy of the records of interview because: · He did not receive a copy at the time; · They appeared to be 'doctored'; · Insp Heap had not signed them immediately after the interviews had ended; and · He had not been asked to read the record and indicate if it was a true and correct record. 395 In my view, these complaints are nothing more than petty 'nit picking' that do not address or inform anybody of any real or perceived criticism of the substance of the record of interviews. Moreover, the applicant has not, at any time, suggested that the transcripts were not the true and correct record of his interviews, nor has he identified where he believes they are inaccurate. In short, these complaints take the applicant's case nowhere, are self-serving and are another 'red herring'. They do not present any genuine criticism of the investigative process. 396 Mr Docking criticised the fact that the IRP does not keep detailed minutes of what each person says at IRP meetings. Notwithstanding the Association and Mr Docking know that this has been a recent policy change by the Force, it seems to me that a member of the IRP who participated in an internal disciplinary investigation, would be unduly constrained if they knew that every comment they made was recorded and may later be used against them or the Force. Obviously, many, and possibly contrary views are put at such meetings. If someone said something favourable to an applicant it would no doubt be used to undermine the integrity of the ultimate collective decision. 397 Mr Docking spent hours asking witnesses what was in certain documents and what was not. With respect, this was a waste of time. Documents tendered or relied upon speak for themselves. It does not progress the matter very far by asking a witness to scour a document to find a particular reference which the cross-examiner knows is not there. Whatever inferences are to be drawn from such omissions or inclusions in documents would ordinarily be made in submissions. In addition, I reject Mr Docking's assessment that this approach is about proving the applicant's case through the mouths of the Force's witnesses. It did no such thing. 398 Thirdly, in my opinion, the allegation that Supt Fehon did not give proper consideration to the applicant's responses to the notices, cannot possibly be sustained. I find no evidentiary basis to reject Supt Fehon's evidence that he had taken the applicant's submission (and had read it more than once), and all the other relevant material 'into consideration' through an active intellectual process. It seems to me that the applicant's real complaint is that Supt Fehon did not accept his responses or give more weight to matters in the applicant's favour. This is hardly the point. I refer to paras [388] to [392] of Probst in this respect: 388 During the course of argument, there was much debate about the meaning of the expression 'take into consideration' and as Mr Docking submitted, Supt Commins had plainly failed to engage in an active intellectual process, but rather had relied on others to decide the matter for him. While I readily acknowledge the authorities referred to me by Mr Docking highlight that a decision maker must engage in an active intellectual process, there is no authority which gives guidance as to what such a process must, or should entail. A recent Court of Appeal judgement considered the meaning of (a decision maker giving) 'proper, genuine and realistic consideration' to a relevant matter. In Anderson v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400, Tobias JA (with whom Spigleman CJ and Macfarlan JJA agreed) said at paras [57] to [59]: [57] I agree with Basten JA in Belmorgan that there is a need to apply with caution the epithets or formulations that have been judicially expounded with respect to the requirement in administrative law for the decision-maker to consider a relevant matter. Other formulations adopted in the past require consideration "in a real and conscientious way" ( Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 420 ; 24 ALD 657 at 664 per Einfeld J); "in any real sense" ( Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 391–2 ; 55 FLR 180 at 184 ; 4 ALD 237 at 240–1 per Toohey J); or that the consideration be "adequately addressed" ( LEK v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 45 FCR 418 at 434–5 ; 117 ALR 455 at 472 per Wilcox J); and see Bruce v Cole (1998) 45 NSWLR 163 at 186 per Spigelman CJ. It is obvious that their use is fraught with the danger of a slide into impermissible merits review. I would therefore prefer that they be avoided. [58] Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v FCT (2002) 123 FCR 499 ; 50 ATR 253 ; [2002] FCA 845 at [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, I believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, "consider" and which, as the Full Federal Court observed in Anthonypillai , invoke "language of indefinite and subjective application". [59] Furthermore, the formulation that the decision-maker must evince an understanding of the relevant matter may require no more than that he or she must not misdirect himself or herself as to the meaning of the particular matter required to be taken into consideration in the context of the relevant statute. 399 In addition, I find myself respectfully in accord with what Haylen J said in Reid-Frost at par [143]: 143 Further, the obligation (and it was accepted that there was a mandatory obligation) on the Police Commissioner to consider the officer's response, however, did not require the Commissioner to read every word: the Police Commissioner was not compellable as a witness in review proceedings and the review provisions did not countenance that the Commissioner's thought processes with respect to his consideration of matters would be open to scrutiny. Contrary to the growing practice, the Commissioner should not be required to produce documents relevant to his consideration of the Response and the matter generally because that was no part of the Commission's role on review. As an employer the Commissioner was not conducting an administrative or judicial review when deciding whether or not he had lost confidence in an officer. The Commissioner's obligation "to take into consideration" the response did not mean "read" the response and the Commissioner was entitled to receive advice and assistance in taking into consideration the response. That assistance may be provided by the Commissioner's Advisory Panel (see s 181H of the Police Act ). It was submitted that the Commissioner did not fail to take into account the merits of the case even though he did not read all of the underlying material and that the Commissioner, like decision-makers who make a large number of decisions, would not act unlawfully by acting on the basis of facts found by his advisors (per Emmett J in Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation (2003) 126 FCR 304 at 388). Having regard to the significant role the Commissioner of Police and his responsibilities for making a large number of decisions, it was unlikely that the legislature contemplated that the head of the New South Wales Police Service would be expected to read each word of the officer's response and it was unreasonable to expect a Commissioner, as a single decision-maker, to spend time reading all of the officer's submissions - it was sufficient that the Commissioner took into account the substance of the submissions. 400 Moreover, if one accepts Supt Fehon's evidence that he provided the applicant's responses to the various Investigators, then it demonstrates that he went further than he was required to do, either to fulfil his statutory obligations or by undertaking an active intellectual process. I accept that he had asked the Investigators to consider, comment and give feedback on any aspect of the applicant's responses which might have been overlooked or not properly taken account of. While there is no formal record he had done so, and Insp Williams and Sgt Neville could not recall him doing so, I consider it a giant leap to suggest that Supt Fehon actually lied about this contact. 401 It would seem to me that Supt Fehon was not obliged to reconsider the Investigator's written responses (prepared for the purposes of these proceedings) in light of the applicant's 10 page criticism of the Investigators' Reports. In any event, this criticism was very much at the periphery of what the Investigator's were required to investigate and their conclusions. 402 At this point, I would observe that Mr Docking was so immersed in the minutia of procedural detail as to have lost focus on the crux of the issues to be determined in this case. For example, he pressed Supt Fehon for the name of the person in Legal Services who prepared the notice/s, when he had a conversation with that person, what they discussed, how long the discussion went for, had he made a note of the discussion and, if so, where was it. By this excruciating and unnecessary cross-examination, it would seem that Mr Docking expects that every conversation between a police officer and anybody else must be substantiated by a diary note or other contemporaneous record. Such a proposition is both impractical and unrealistic. 403 Mr Docking was also critical of Supt Fehon for not personally penning the notices and the orders. He argued that this demonstrated that Supt Fehon had not arrived at an independent decision and the order was, therefore, beyond power. Notwithstanding Supt Fehon's admissions, I consider this criticism to be completely unfounded and I adopt what I said in Probst at par [376]: 376 Mr Docking strongly criticised the fact, readily and candidly conceded by Supt Commins, that he had not personally prepared the s 181D notice and s 173 notice and order. Mr Docking said that persons, unnamed and unknown, had prepared the documents. He concluded that Supt Commins could not therefore have brought an independent mind to his decision making process. In my opinion, there was nothing improper or faulty in Supt Commins' consideration of the material he had before him, nor could Supt Commins be accused of delegating his independent decision making process by signing the notice and order which had been prepared by someone else. The process adopted here is akin to any disciplinary process found in the public sector, where Departmental Heads make final decisions based on recommendations and material, adduced, collated and crafted by others. It would be absurd to suggest that a final decision maker, at the level of the Police Commissioner's delegate, would personally craft and outline in his/her own words, the terms of a disciplinary letter or notice. In any event, it was hardly surprising that it was the Force's Process Unit which prepared the documentation. It was perfectly understandable that Supt Commins did not know who had personally done so. The Process Unit is the Force's central co-ordinating body responsible for preparing notifications, nominations and submissions in disciplinary matters. Its existence and role was hardly a secret. It is mentioned in the Force's Management Action Procedures as performing the very functions Mr Docking sought to discredit: · Process notifications · Process nominations · Prepare 181D submissions Co-ordinate and facilitate the administrative functions of the Internal Review Panel · Maintain corporate records in relation to the process 404 Another pointer to Supt Fehon arriving at his own independent decision must be the fact (criticised by Mr Docking) that the CMT had recommended a Commander's Warning as the punishment with no loss of increment. Plainly, Supt Fehon was not mouthing the words or the decisions of others but had undertaken, as he is required to do, his own independent assessment and came to a different view to the CMT. I presume there would be no criticism of Supt Fehon if he had merely adopted, without question, the CMT's recommendation. 405 Fourthly, Mr Docking put that Supt Fehon failed to give adequate reasons for his decision. In Probst, I said at paras [396] and [397]: 396 In any event, it seems to me that it would be utterly impractical and unreliable for the decision maker to identify each and every piece of evidence and information, for and against the applicant's interests, and provide reasons why certain weight was given to particular evidence over other evidence. That was clearly the role of the Investigator. One could well imagine if the notice and order was to require such detailed commentary and findings it would end up as long, or even longer than the Investigator's Report which in this case was some 31 pages with 54 annexures in two folders. The Investigator's Report would be superfluous if the final decision maker was required to undertake his role. That could surely not be the intention of the legislature. 397 In my view, Mr Docking's submission misunderstands the role of the final decision maker. His role is to balance all of the relevant information and evidence, including the officer's response, and determine both the outcome of the allegations and, if sustained, any penalty to be imposed. It is unrealistic and unfair to expect the decision maker to give the same level of attention and detail to the giving of reasons as a judicial officer. The following remarks from the Queensland Court of Appeal in Cypressvale Pty Ltd v Retail Shop Lease Tribunal are apposite: The calibre, legal training and experience of members of the judiciary raise expectations that reasons they give for their decisions will attain a high level of sophistication. The same would not always be true of decisions of persons whose primary qualification for decision-making consists of specialist knowledge or experience rather than ability to produce reasons conforming to accepted judicial tradition. Reasons that would not be considered adequate if given by a judge may nevertheless suffice for some other decision-makers not chosen for their task because of their resemblance to the judiciary. In the end, the question whether reasons are "adequate" falls to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested. ... However, even adopting the principles to be applied to the reasons of administrative decision-makers, the High Court of Australia stated in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 that the reasons should be given a "beneficial construction". It explained the basis for this approach (omitting footnotes): 30. When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic . In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". 31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. And at paras [399] and [400]: 399 To suggest that the final decision maker undertake what, is in effect a second investigation or a judicial review, (as Mr Docking submitted in the 24 stated failings of Supt Commins) is to require the decision maker to do far more than what is envisaged in the statutory command. It could not have been the statutory intention. In any event, the statutory command is expressed as giving 'reasons for making the order', not reasons for the findings of misconduct or reasons why certain evidence was preferred over other evidence in a 'word against word' case. I concur with Mr Seck that the written statement accompanying the order is to inform the applicant why the order was made and for the officer to understand why the order was made. It would only be if the order left some room for doubt which did not permit the officer to appropriately respond, would the wording of the order be open to challenge or criticism. In my view, the applicant could have been in no doubt why the order had been made in this case and what he was required to respond to in his reply. In this respect I refer to what Boland J (as he then was) said in Hosemans v NSW Police (No 3) at par [179]: 179 The Statement of Reasons lacked structure and precision. Nevertheless, I am satisfied that the Statement captured the essential reasons underpinning the Commissioner's decision to remove Mr Hosemans and was sufficiently comprehensible that Mr Hosemans was able to understand what those reasons were and was able to, and did, mount a coherent and comprehensive challenge to them. 400 I have no doubt the statement captured the essential reasons underpinning the order and were sufficiently comprehensible for the applicant to mount a coherent and comprehensive challenge to them, which he did. 406 I reiterate that the notices and the orders do not require a detailed account of reasons why each of the applicant's responses or explanations was either rejected or accepted by Supt Fehon. There can be no doubt the notices and orders captured the essential reasons underpinning the orders and were more than sufficient for him to mount a coherent and comprehensive challenge to them, which he did. Adopting Mr Docking's approach would mean the final decision maker would become a second investigator. On Mr Docking's submission, if Supt Fehon had not undertaken a second assessment of the information available to the Investigator and made his own separate further inquiries, then he had not properly fulfilled his role. In my view, such a proposition cannot be right. 407 Fifthly, Mr Docking submitted because Supt Fehon conceded that he had not taken into account the applicant's good character, excellent service record and economic circumstances, that the orders were therefore 'harsh, unreasonable or unjust'. In truth, this is not entirely correct as Supt Fehon said he had taken such matters into account. The real complaint is that he did not say so in his orders. It does not follow that this omission meant he did not take those factors into account. 408 In any event, I accept that it would have been wise for Supt Fehon to have referred to doing so in the orders. Nevertheless, the real question arises as to whether it would have made any difference to the outcome. I do not believe so. In any event, consideration of such matters must have been within the Superintendent's general knowledge given he had known the applicant for some years. Moreover, these matters were before the Superintendent because they were expressly referred to in both of his responses which the Superintendent said, and I accept, he had read and considered. The financial effect on the applicant from the orders was also expressly calculated and referred to by the applicant in his responses. While it may not have been averted to in the orders, it was nevertheless in the material the Superintendent had before him and which, I accept, he had considered. Other criticisms made by the applicant 409 Mr Docking referred to the use of the word 'integrity' in the notices and the orders and submitted that, as no such criterion applies in s 173 (as it does in s 181D), then the orders of Supt Fehon were 'beyond power'. I disagree and repeat what I said in Probst at paras [379] to [382]: 379 As to the inclusion of the word 'integrity' in the order, I do not consider that much turns on the criticism by Mr Docking of this criterion being included, notwithstanding that it does not appear in the statutory framework in s 173(4). I do not see how it could be doubted that unsatisfactory performance and, most particularly, misconduct (the two specific statutory criteria) will, if proven, invariably impact on the integrity of the police officer concerned. I regard the criticism of the word's inclusion in the order, as a distinction without a difference. 380 In addition, the allegations must be viewed in the context of the specific findings made in the order in respect to the applicant's breaches of the Force's Code of Conduct and Ethics which state: An employee of NSW Police must comply with the law whether on or off duty. NSW Police is responsible for upholding the law. Unlawful and/or criminal conduct by employees of NSW Police is incompatible with that role and also likely to bring NSW Police into disrepute. All employees of NSW Police are expected to comply with the law at all times. 381 A breach of these requirements squarely falls within the scope of an officer's integrity. I cannot imagine how they might be said to be distinct to, or set apart from, the officer's integrity. It was hardly an irrelevant consideration taken into account by Supt Commins. It follows, that I do not consider that Supt Commins misdirected himself, or that he was misdirected by others, by the inclusion of the word 'integrity' in the order. In any event, as was said in Buck v Bavone : It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. 382 I do not consider that Supt Commins acted in bad faith or acted arbitrarily or capriciously. On the contrary, in my opinion, Supt Commins was perfectly entitled to come to the view he did in light of all of the evidence and material he had before him. He described it as a 'holistic' assessment. It was an assessment open to him considering the mountain of evidence and material he was required to consider. It was an approach which I would endorse and have applied myself to all of the evidence and material presented in these proceedings. 410 It must also be self-evident that where findings of an officer's untruthfulness have been made, that this must call into question the officer's integrity. Thus, it seems to me, that it was entirely appropriate for the notices and orders to reflect the notion of the officer's integrity as a basis for Supt Fehon's conclusions. 411 Mr Docking cross-examined Supt Fehon on his knowledge and understanding of the Briginshaw v Briginshaw test and Industrial Relations Commission decisions such as Van Huisstede v Commissioner of Police. This, presumably, was to demonstrate that Supt Fehon had little understanding of Industrial Relations Commission precedents when making his orders. I do not accept this criticism. It was disingenuous and unfair. There is no obligation on the decision maker to have a sound understanding of particular cases decided by the Industrial Relations Commission. The statutory instruction is clear. Supt Fehon, as an experienced senior officer, was required to weigh up all the evidence he had before him and decide, on the balance of probabilities, whether the allegations were proven. There was no evidence that he had not done so conscientiously, thoughtfully and having regard for all the relevant information. As I said earlier, Mr Docking's expectations of what Supt Fehon was expected to know about Industrial Relations Commission decisions, sits rather ironically with his other argument that it was unrealistic to expect a Sergeant to know all about Custody Management. Applicant's criticism of the Evidence 412 Mr Docking raised a number of criticisms of the Force's evidence. He particularly attacked the 10 December 2006 running sheet note of Insp Williams and argued that it was unreliable as to its accuracy or its veracity. I have already indicated I accept that this was a genuine entry by Insp Williams as he confirmed in the witness box. Mr Docking relied on the principle that a recent invention (in the evidence) might indicate it was not true. This sits curiously with Mr Docking's other oft quoted principle, that if one says something many times, it does not make it true, if it was untrue to begin with. To suggest that Insp Williams had falsely created this entry in the running sheet with the express purpose of 'filling a big hole' in the Force's case is to attribute to the Inspector conduct that would be so reprehensible as to be implausible and improbable. 413 Mr Docking pressed Const Laurie on a number of occasions when she could not recall an incident or event, that it meant she could not deny it. Apart from the fact that Const Laurie was very distressed in the witness box at being asked highly personal questions about her relationships, I consider Mr Docking's approach to be unfair and illogical. I ask rhetorically how can you deny something if you cannot recall it? 414 Mr Docking sought to make an issue with the table prepared by Sgt Williams after the notices were issued. Sgt Williams readily accepted it had been at Supt Fehon's request, and it cross referenced the applicant's criticisms of his investigation. It was said that the applicant was denied procedural fairness, because he did not have an opportunity to respond. I have this to say about this complaint: a) There was nothing underhand or sinister about what Sgt Williams undertook. There was nothing prejudicial in it being created for the purposes of these proceedings; b) It is simply unreasonable and unfair for the applicant to insist that he must respond to everything the Force prepares in defence of its position in these proceedings; c) The applicant himself prepared much of his material after these proceedings were instituted; and d) Parties are perfectly entitled to respond to these proceedings as they see fit, including offering 'new evidence', especially since this it was the statutory requirement allows. Were it otherwise, on Mr Docking's logic, the only evidence that could be adduced by the Force would be the material relied on in making the orders. This would be contrary to established precedent and the spirit and intent of the Act as to the nature of these proceedings being a 'fresh and independent review' (of the orders). 415 In any event, the applicant had every opportunity (and availed himself of them) to respond to the material in the Force's reply. This claim could not be viewed, in any way, to be a denial of natural justice or procedural fairness. 416 Before leaving the consideration of the procedural unfairness claims, I would refer to my more general observations in Probst at paras [364] to [370]: 364 There was considerable emphasis in the applicant's case on allegations of procedural unfairness and claims that the order of Supt Commins was 'beyond power' because of procedural irregularities and/or his failure to comply with the strict procedural requirements identified in s 173(5) of the Act. 365 I would wish to make such general observations as to these matters before dealing with the major procedural criticisms advanced by Counsel for the applicant. Before doing so, I would particularly address Mr Docking's primary submission that the s 173 order of Supt Commins was 'beyond power' by adopting the reasoning of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority at paras [91] to [93]: [91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; 65 there is not even a ranking of relevant factors or categories to give guidance on the issue. [92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice , Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale , Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not. [93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". 366 In my opinion, the failures in the process identified by Mr Docking under s 173(5) of the Act fall squarely within the latter proposition identified by the High Court and do not render the order as 'beyond power'. 367 The question of whether a failure to follow mandatory legislative procedures invalidates the ultimate decision was recently considered by the High Court in Minister for Immigration and Citizenship v Szizo (2009) 259 ALR 405. At par 36 the High Court said: [36] Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case. 368 It seems to me that the plain statutory purpose of the strict procedural steps in s 173 have, at their foundation, the fundamental premise of ensuring natural justice to an accused police officer such as the officer knows exactly what is being alleged against him or her and by whom, and is given a fair and proper opportunity to defend him or herself against such allegations. Put another way, whether the principles of natural justice have been applied to the given facts and circumstances. In my view, the Commission is bound to give careful consideration in any merit review under s 174 of the Act, to whether these underlying principles have been denied to the accused officer in such a way, or to such an extent, that a substantial injustice is visited upon the accused officer. 369 Obviously, paying mere 'lip service' to the procedural requirements under s 173 of the Act, would likely result in any consequent order being found to be 'beyond power'. On the other hand, a word by word excruciating dissection of each and every step in the process will often deflect from the real task the Commission is required to undertake in its fresh and independent merits review. It would be an unusual result indeed if such strict and prescriptive procedural processes, as found in the Police Act, were not free of minor and insignificant irregularities. Indeed, it seems to me that the more prescriptive the process, the more likely there will be an opportunity for criticism if each and every step if not rigorously complied with. However there is not a requirement for strict compliance with the procedural stipulations. In this regard, I would adopt the words of the Full Bench in Little v Commissioner of Police (No 2), where it was said, albeit in the context of a s 181D removal case: "The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act , laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act ." 370 That said, I would wish to add that strict adherence to procedural form is not an end unto itself. When strict adherence to form triumphs over the substantive merits of the case, and results in the overall interests of justice not being served, then the Commission would be very cautious in granting relief to an applicant whose case would not otherwise succeed. This must be a fortori in s 174 reviews where there is a statutory mandate on the Commission to have regard to, and balance the public interest against the interests of the applicant. These are the difficulties confronting the Commission in this case. For there is no doubt that Mr Docking effectively and comprehensively established (primarily through the oral testimony of Supt Commins) that not all of the statutory requirements of s 173 of the Act were complied with. He also identified other deficiencies and faults in the process which would ordinarily be characterised as issues of procedural unfairness. However, that surely cannot be the end of the matter. Moreover, as was said by Boland J (as he then was) in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161, I consider in this case 'that much of the complaint about procedural unfairness was at the periphery'. Even so, there is a real risk that in immersing oneself in the minutia of the process, that the fundamental issue of whether the applicant was guilty of serious misconduct will be completely overshadowed or lost altogether. Faced with the findings I have made on the incidents involving the applicant and Ms Keran, it would, in my judgement, be tantamount to giving the Commission's imprimatur to a grave injustice, and clearly contrary to the public interest, if I was to revoke Supt Commins' order. 417 In my opinion, these observations, in so far as they are apposite in this case, are consistent with the approach adopted in Reid-Frost, where the majority (Walton VP and Kavanagh J) said at paras [21] to [25]: 21 Both parties to the proceedings accepted the formulation by Boland J, President , in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 (' Hosemans (No 3)' ) as to the nature of the obligation reposing in the Commissioner to give reasons under s 181D(4). We also agree with that formulation and consider that, essentially, the similar obligations repose in the Police Commissioner to provide "a Notice setting out the grounds on which the Commissioner does not have confidence" under s 181D(3)(a). That is, the grounds contained in a notice issued under s 181D(3)(a) must set out the essential bases for the Commissioner not having confidence in the officer's suitability in such a manner that they are sufficiently comprehensible to the police officer on whom they are served as to enable that person to understand those grounds and respond to them in a written submission as contemplated by s 181D(3)(b). 22 The statutory purpose with respect to the giving of notice is to ensure that the police officer has clear information as to why the Commissioner is considering the removal of the officer for lack of confidence, so that the officer may be given a reasonable opportunity to respond by a written submission (pursuant to s 181D3(b)) setting out, inter alia, any defence, explanation or excuse. The procedure is, therefore, intended to facilitate a fair hearing. The statutory requirement for the Commissioner to provide 'grounds' in s 181D(3)(a) merely underlines the gravity of the matters under consideration and the need to specify the allegations made with precision and with sufficient particularity. However, and drawing on the principles stated by the High Court in Minister for Immigration and Citizenship v Szizo [2009] HCA 37 (' Szizo ') at [34], the "manner of providing the notice" is not "an end in itself". 23 In Szizo, the High Court was dealing with the question of whether a decision of the Refugee Review Tribunal was invalid because of a failure by the Tribunal to give notice under Div 7A of the Migration Act 1958 (Cth). It was found that, as a matter of statutory construction, a departure from the steps required would not necessarily invalidate the decision, and the determination of that question would depend upon "the extent and consequences of the departure" (at [35]). Here the question is not, in our view, one of validity, per se . However, the authority in Szizo does give guidance as to the proper approach to resolving whether an inadequate notice may, under the present statutory scheme, constitutes a basis for finding that a removal was harsh, unreasonable or unjust. That is, the significance of any procedural failure in this area will depend upon the extent and consequence of any departure. 24 In this matter, the written submission provided by the respondent to the Commissioner on 21 April 2008 demonstrated that the Notice was sufficiently comprehensible to the respondent and enabled her to, adapting the words of Boland J in Hosemans (No 3), "mount a coherent and comprehensive challenge". 25 This is not to suggest that the Notice was not, in some parts, vague, particularly where reliance was placed upon an attached Commissioner's confidence submission as a means of conveying the bases relied upon by the Commissioner for issuing the Notice. However, the content of the Notice was sufficient to serve the purpose of providing the requisite information and, more significantly, any inadequacy did not affect the capacity of the respondent to provide a comprehensive written submission in response. and at paras [31] to [46]: 31 As to the requirements of s 181D(1)(c), we would again adopt the formulation of Boland J in Hosemans (No 3) wherein his Honour stated (at [161]): In that consideration he must obtain an understanding of the facts and circumstances set out in the submissions, and of the contentions they urge based on those facts and circumstances ( Tickner v Chapman at 476-477 per Burchett J). The Commissioner's duty under s 181D(3)(c) is a personal one unless there is a delegation of the function under s 31 of the Police Act . 32 However, we would also adopt, as being relevant to a consideration as to whether or not the Commissioner has adhered to the requirements of s181D(1)(c), the discussion by the New South Wales Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58] (' Anderson ') as to the proper approach to statutory requirements imposed on a decision maker to 'consider'. Anderson concerned a judicial review, but the following observations of Tobias JA, (with whom Spigelman CJ & Macfarlan JA agreed) are applicable to the consideration of the question raised in this matter: Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, we believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, 'consider' and which, as the Full Federal Court observed in Anthonypillai , invoke " language of indefinite and subjective application ". 33 When referring to 'formulations', Tobias JA was referring to the "proper, genuine and realistic consideration" formulation that had been judicially expounded with respect to the requirement in administrative law for a decision maker to 'consider' a relevant matter. Here, we consider that, for the most part, the question of whether or not the Commissioner considered the submission of the respondent in accordance with the requirements of s 181D(3)(c) depended on what the Commissioner had written in his reasons for deciding to remove the officer on confidence grounds. This is a matter about which an objective evaluation may be undertaken by the Commission in a review brought with respect to an application made under s 181E. 34 We do not exclude the possibility that there may, from time to time, be other documents or statements which bear upon the question of whether there was a procedural failure in relation to the consideration of the written submissions provided by an applicant under s 181E to the Commissioner of Police. However, that question is not answered appropriately, in our view, by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment. The legislature should not be taken as contemplating, by the provisions of s 181D(3)(c), that the Commissioner would be subjected to, essentially, a time study in order to ensure, as the sub-section contemplates, that the police officer was given a fair opportunity to be heard in his or her defence. 35 We note, in this respect, that we do not consider that the decision of the Full Court of the Federal Court of Australia in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and ors (1996) 67 FCR 40 ( 'Minister for Aboriginal and Torres Strait Islander Affairs' ) assists the respondent. In that matter, the Full Court upheld the judgment of Carr J in State of Western Australia & Ors v Minister for Aboriginal and Torres Strait Island Affairs & Ors (1985) 37 ALD 633. The Full Court found, inter alia, that his Honour was correct in concluding that a declaration made by the Minister was invalid due to a failure to consider representations made under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Commonwealth Act') (at 63). Carr J had based this finding, in part, upon there being an absence of sufficient time available for the Minister to consider that matter. However, Carr J's findings, in this respect (given in a judicial review of the Minister's decision), were also based upon a conclusion that the Minister's Statement of Reasons (under s 13 of the Commonwealth Act) indicated, by their own terms (or by the omission of appropriate content), the absence of proper consideration of the representations. (The Full Court seemed to place less reliance upon that consideration but, nonetheless, had regard to that factor.) 36 We are not here engaged in judicial review or findings as to the validity of an Act, per se , but, as we have noted, the ultimate question concerns whether the procedure adopted contributed to the removal being unfair. More significantly, as we will soon develop, the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light. 37 We would finally observe under this heading that the Commissioner may be taken as reaching his decision along a continuum extending to those assessments giving rise to and found in the Notice. This points to the danger of applying a test based on time in assessing whether the Commissioner had adequately considered a submission received from a police officer. Reasons for Decision 38 We do not consider that the Commissioner is correct, however, in submitting that the trial judge was not entitled to make an assessment as to the adequacy of the reasons given by the Commissioner. 39 The reliance by the appellant on Twist v Randwick Municipal Council (1976) 136 CLR 106, in this respect, is misplaced. In Twist , the High Court was concerned with the construction of the Local Government Act 1919 and whether a municipal council was required to hear the owner of a building (said to be dilapidated) before the council ordered its demolition. The central issue was whether the intention of the legislature was such that the common law rules of natural justice were excluded. However, as the Court made clear, that question was to be determined as a matter of statutory construction with no rule operating "which can provide in every case an answer by its mechanical application" (per Barwick CJ at 111). Thus, the appeal to the District Court available under the subject legislation was sufficient to demonstrate that the owner did not have a right to be heard by the council before it made an order for demolition. Barwick CJ (at 110 - 111) considered that the right was excluded because the legislature had decided that the opportunity to be afforded was before the court (however limited that opportunity may be). Mason J (at 116) held, inter alia , that the hearing in that court may (under particular conditions) 'cure' the defect in fairness. The appellant relied upon that passage from the judgment of Mason J to argue that a merits review under the Act would 'cure' any procedural defect arising from steps taken by the Commissioner. 40 No such legislative intention is, however, discernable under Div 1C of Pt 9 of the Act. The question required to be answered by a review considered under that Division is whether the removal of a police officer was harsh, unreasonable or unjust. A step taken or omitted by the Commissioner before the removal may invoke any one or a combination of those epithets. That was the conclusion reached in Byrne and the approach adopted in each of the leading Full Bench decisions dealing with the operation of Div 1C of Pt 9 - Bigg , Newton (No 2), Little (No 2) and Hosemans (No 2) . 41 A procedural failure will not be 'cured' by merit review, as such a failure may be material to or condition any finding as to whether the removal was harsh, unreasonable or unjust, per se . Thus, the opportunity to be heard in the review does not render impotent a procedural failure in the assessment of whether a removal was harsh, unreasonable or unjust. This is because the procedural failure might be instrumental in bringing about the decision to remove (or, in the case of unfair dismissal, the decision to dismiss an employee) and warrant a conclusion that the removal was consequently harsh, unreasonable or unjust. For example, an officer may be deprived of an opportunity to provide an innocent explanation which may well indicate the injustice in a decision to remove. 42 In this respect, we refer to the observations of the Full Bench of the Commission in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 at [118]: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 43 That the decision in Twist operates in a different statutory context is ultimately confirmed by the provisions of s 181F(1)(a) of the Act which requires the Commission to consider in the review the Reasons for Decision reached by the Commissioner to remove an officer. In our view, this provision is plainly directed to the adequacy of the reasons given by the Commissioner, not just in terms of their substance, but also whether they demonstrate a deficiency in the opportunity given to the police officer to be heard or a failure by the Commissioner to give proper regard to what was put by the officer in his or her written submission in response to the Notice. 44 We should add, in this respect, that the foregoing analysis reveals that the lynchpin of any inquiry as to procedural fairness in a review under Div 1C of Pt 9 of the Act is the content of the Reasons for Decision of the Commissioner. Procedural issues associated with the issuing of a Notice or taking into consideration a submission advanced by a police officer (per s 181D(3)(c)) are secondary to that consideration and, ultimately, only really serve to complement an assessment as to whether the Reasons for Decision given by the Commissioner demonstrate procedural failure. 45 Thus, as in this case, if the Commissioner had failed to take into account explanations provided by the respondent in her written submissions as to the TOIL incident or secondary employment, as may have been the case, these are matters which will become relevant for the assessment of whether the removal was harsh, unreasonable or unjust. It was appropriate for his Honour to have regard to those considerations, but his Honour was not correct in treating those failures (or other failures such as the vagueness of the reasons) as sufficient, in themselves, or when taken with other (erroneous) findings of procedural failure to conclude that the removal was harsh, unjust or unreasonable under Div 1C of Pt 9 of the Act. 46 The failings which have been identified by the respondent in this case in relation to the Reasons for Decision (including some other matters relating to competence, conduct and performance) were not such as would, of themselves, ground a sufficient basis to conclude that the removal was harsh, unjust or unreasonable. This is not to suggest that the procedural failures might not have resulted, when taken with the merits of the matter, in such a finding, but this, as we have earlier observed, did not occur in this matter. That constitutes appealable error. See also Hessenberger v Commissioner of Police [2010] NSWIRComm 24 at par [44]. Balancing the applicant's interests against the public interest 418 Given my findings as to the applicant's conduct, most significantly his inappropriate accessing of the COPS and his untruthfulness during his directed interviews and in these proceedings, I consider that the public interest requires that Supt Fehon's order be confirmed. I adopt, with respect, what Marks J said in Morgan and Commissioner of Police [2009] NSWIRComm 184 at [200] to [212], noting, of course, that in that case his Honour refused to reinstate the dismissed officer, under s 181G of the Act. I accept the applicant will suffer a considerable financial penalty, both in the short and long term, and has had a 20 year good record of service. Nevertheless, I consider that his conduct has been serious and in plain breach of his duties as a police officer. It is contrary to the community expectation of how a police officer should conduct himself or herself, both on and off duty. 419 That said, I do not believe the applicant to be a bad police officer or that he does not have a future contribution to make to the New South Wales Police Force and the New South Wales Public. Perhaps his judgement was clouded by his feelings for, and the break-up in his relationship with Const Laurie. However, that can never be an excuse for the conduct I have found proven in this case. Moreover, such conduct was inimical to his functions as an EDO supervisor and as a role model for more junior and less experienced police officers. 420 It seems to me that the applicant requires a considerable period of time to reflect upon his behaviour and recognise that there is a clear distinction between conduct which is purely for self interest and conduct which is in the Force's interests. Conclusions and Findings 421 The following is a summary of my conclusions and findings in this matter. 1. Where there is a conflict in the evidence between the applicant and Const Laurie and the applicant and Mr Williamson, it is the evidence of Const Laurie and Mr Williamson which I prefer. 2. Where there is a conflict in the evidence between the applicant and Insp Williams as to the conversation at the Christmas Party on 10 December 2006, it is the evidence of Insp Williams which I prefer. 3. I find, on the balance of probabilities, that the allegations in Issues 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 in the s 173 order made by Supt Fehon on 4 February 2009, are sustained. 4. I find, on the balance of probabilities, that the allegations in Issues 1, 2 and 4 in the s 173 order made by Supt Fehon on 13 August 2009, are sustained. 5. I find, on the balance of probabilities, that the allegation in Issue 3 of the s 173 order made by Supt Fehon on 13 August 2009, is not sustained. 6. The applicant's conduct breached the New South Wales Police Force's Code of Conduct and Ethics and the New South Wales Police Force's Policies on Conflicts of Interest, COPS access and Custody Management. 7. The Force's investigations of the allegations against the applicant were fair, exhaustive and unbiased. 8. Any irregularities in the procedural requirements under s 173(5) of the Act were either, technically minor, or so insignificant as to be outweighed by the seriousness of the applicant's misconduct. 9. At all relevant times, the applicant was aware of the allegations against him and given sufficient information for him to provide a comprehensive and detailed response to the allegations. 10. Supt Fehon conducted himself in an entirely reasonable, fair and unbiased manner in performing his functions under the Act. 11. There were no issues of procedural unfairness of such significance as to constitute 'irretrievable prejudice' or an 'irredeemable flaw' in the process. 12. As required by s 174 of the Act, in balancing the interests of the applicant and the public interest, I find that the public interest would be served by upholding Supt Fehon's orders. 13. The two orders made by Supt Fehon on 4 February 2009 and 13 August 2009, were not 'beyond power' and were not 'harsh, unreasonable or unjust' within the meaning of s 174 of the Act. 14. Orders dismissing these applications and upholding the orders of Supt Fehon should be made. ORDERS 422 Pursuant to s 177(1) of the Police Act 1990, I order that: 1. The orders made by Supt Paul Fehon (acting on behalf of the Commissioner of Police), pursuant to s 173 of the Police Act 1990 on 4 February 2009 and 13 August 2009, are upheld, pursuant to s 177(1)(c) of the Act. 2. These applications for review of the said orders are dismissed pursuant to s 177(1)(d) of the Act. 2. These proceedings are concluded. Peter J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.