Commissioner of Police v Hugh Gerrard Brennan [2008] NSWIRComm 52

Industrial Relations Commission of New South Wales

CITATION: Commissioner of Police v Hugh Gerrard Brennan [2008] NSWIRComm 52

APPELLANT: Commissioner of Police PARTIES: RESPONDENT: Hugh Gerrard Brennan

FILE NUMBER(S): IRC 1776 of 2007

CORAM: Boland J; Staff J; Backman J

CATCHWORDS: Police - Appeal - Respondent police officer removed under s 181D of Police Act 1990 - Removal arose from respondent's conduct whilst on duty in relation to an assault on a member of the public and the use of capsicum spray on another member of the public - Respondent convicted of two assaults in Local Court - On appeal to the District Court one conviction of assault upheld but conviction of assault in relation to use of capsicum spray overturned on the basis that the Crown had not negatived the possibility that the respondent acted in self-defence - Removal found to be harsh at first instance - Respondent reinstated - Appeal by Police Commissioner - Whether trial judge erred in characterising the assault as being at a low level of culpability given the sentence imposed by the criminal courts - Whether trial judge erred in relation to the capsicum spray incident in concluding that the District Court had made a positive finding that the respondent had acted in self-defence - Held on appeal that trial judge erred - Appeal upheld.

Crimes (Appeal and Review) Act 2001 s 18 Crimes (Sentencing Procedure) Act 1999 ss 3A, 9 LEGISLATION CITED: Crimes Act 1900 s 61 Industrial Relations Act 1996 ss 187, 188 Police Act 1990 ss 6(1), 7, 7(b), 7(h), 14, 181D(1), 181F, 181F(3)