Industrial Relations Commission of New South Wales CITATION: Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51 APPLICANT Police Association of New South Wales (on behalf of Kim Gilmour) PARTIES: RESPONDENT Commissioner of Police FILE NUMBER(S): IRC 524 of 2008 CORAM: Sams DP POLICE - loss of increment and disciplinary transfer of police senior constable in the Dog Unit - allegations of misconduct and poor performance - allegation that officer engaged in conduct which threatened serious injury to nine Labrador puppies - allegation that officer threw an article at a dog with the intention of hitting it - allegation that officer conducted inappropriate gun steadiness test on a frightened dog - breaches of the Police Force's policies and guidelines - standing and reputation of the Police Force and the Dog Unit - allegations of cruelty to animals - officer of 18 years' service with the Dog Unit - otherwise unblemished record - allegations denied - alleged eyewitnesses - conflict of evidence - officer's demeanour and attitude towards other staff - no standardised procedures for assessment - reliance on skills, knowledge, expertise and experience of trainers - second complaint of unauthorised taping of colleagues' conversations - officer transferred out of the Dog Unit - investigation of complaints conducted by senior supervisory officer - officer complaints of bias and inexperience of investigator - second investigator appointed - Complaints Management Team recommends warning and three month Conduct Management Plan - Commander desires outcome of permanent transfer out of the Dog Unit - transfer out of Dog Unit - second complaint not sustained - Internal Review Panel recommends transfer and loss of increment - length of investigation - procedural fairness - mandatory procedural steps under the Act - all relevant materials relied on provided to officer - whether de novo review negates procedural deficiencies at first instance - suitability of officer to return to the Dog Unit - former position not available - offer to return as Unit Co-ordinator rejected - officer seeks General Purpose Dog Handler position - whether positions vacant - whether officer meets all requirements of the position. CATCHWORDS: REVIEWABLE ACTION - first occasion where an order under s 177(1)(b) is sought - whether order of reviewable action beyond power - whether order harsh, unreasonable or unjust - whether officer denied procedural fairness - proper approach to Commission's review of the order - fresh and independent review - public interest - officer's interests - onus of proof - civil standard of proof - balance of probabilities - practicality of restoring officer to the Dog Unit - whether order should be revoked - 'otherwise' orders. Held; inherent unlikelihood of behaviour - eyewitnesses evidence not credible - evidence inconsistent - best evidence relied on - other witnesses not interviewed - officer's misconduct not proven - order beyond power - failure to give details of allegations to officer - investigator inappropriate - unexplained and unacceptable delays in the investigation - stress and anxiety at delay - prejudice to officer - decision maker had predetermined view - failure to follow mandatory steps under the Act - de novo review doesn't effect procedural unfairness - denial of procedural fairness - order harsh, unreasonable and unjust - no standardised procedures for assessment - nothing to measure conduct against - reliance of existing practices and procedures - officer's attitude and demeanour irrelevant to order - other trainers and supervisors attest to officer's competency, skills and experience - relief to be ordered - restructure of Dog Unit - officer not at rank of former position - officer seeks General Purpose Dog Handler position - available and vacant positions - officer performed role previously and trained other handlers - no reason why he should not be appointed to position - willingness to undergo medical, psychological and physical assessments - inappropriate and unnecessary for interview - order revoked - 'otherwise' orders made. LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Allchin v Commissioner of Police (No 2) (2007) 168 IR 170 Briginshaw v Briginshaw (1936) 60 CLR 336 Burge v NSW BHP Steel Pty Ltd (2001) 105 CLR 325 Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 Commissioner of Police and Wayne Edward Collins [2008] NSWIRComm 162 Flanagan v Commissioner of Police [2008] NSWIRComm 138 Hosemans v Commissioner of Police (2004) 138 IR 159 IGA Distribution Pty Ltd v Moses (No 2) (2002) 14 IR 307 Jones v Dunkel (1959) 101 CLR 298 Laird v Commissioner of Police [2001] NSWIRComm 170 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Mahoney and Commissioner of Police [2003] NSWIRComm 67 CASES CITED: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Newton v New South Wales Police Service (1999) 87 IR 66 O'Connor v Palmer (No 1) (1959) 1 FLR 397 Owens v New South Wales Police Service (1998) 87 IR 1 Pascoe v Commission of Taxation (1956) 30 ALR 402 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176 Riley v WorkCover Authority (NSW) (2008) 151 IR 396 RV and NSW Department of Commerce [2009] NSWIRComm 21 Saliba and Commissioner of Police [2006] NSWIRComm 200 Starr v Commissioner of Police [2001] NSWIRComm 226 Sutcliffe v General Motors-Holden's Automotive Limited (1998) 80 IR 142 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 20 October 2008; 21 October 2008; 22 October 2008; 11 December 2008; 16 March 2009; 18 March 2009 DATE OF JUDGMENT: 30 April 2009 APPLICANT Mr A Howell Police Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Ms K Nomchong of Counsel Solicitor: Ms S Price Bartier Perry JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 30 April, 2009 Matter No IRC 524 of 2008 Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police Application by Police Association of New South Wales on behalf of its member Kim Gilmour under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police DECISION [2009] NSWIRComm 51 TABLE OF CONTENTS INTRODUCTION.........................................................................................................1 RELEVANT PROVISIONS OF THE POLICE ACT 1990..........................................5 LIST OF WITNESSES...............................................................................................22 BACKGROUND SUMMARY....................................................................................23 THE ALLEGATIONS.................................................................................................44 The Puppies Incident.................................................................................................44 The Roscoe Incident...................................................................................................78 The Tyson Incident.....................................................................................................93 Character References...............................................................................................108 SC Gilmour's further evidence................................................................................129 Police Force's further evidence and evidence in reply...........................................134 EVIDENCE AS TO PROCEDURE..........................................................................158 EVIDENCE AS TO AVAILABLE POSITIONS......................................................177 SUBMISSIONS........................................................................................................199 For the Association...................................................................................................199 For the Police Force.................................................................................................213 In reply......................................................................................................................231 CONSIDERATION.....................................................................................................249 The Puppies Incident...............................................................................................249 The Roscoe Incident.................................................................................................278 The Tyson Incident...................................................................................................288 Issues of Procedural Unfairness..............................................................................302 Appropriate relief to be ordered..............................................................................320 Summary of Findings...............................................................................................327 ORDERS...................................................................................................................328 INTRODUCTION 1 These proceedings, under s 174 of the Police Act 1990 ('the Act'), have been brought by the Police Association of New South Wales ('the Association') on behalf of its member, Senior Constable Kim Gilmour ('SC Gilmour'). The application, filed on 21 April 2008, seeks a review of an order ('the s 173 order') made on 5 April 2008, by the Commissioner of Police, under s 173(2) of the Act. The order was issued under delegated authority by Detective Superintendent Julie Middlemiss, Commander, Dog Unit, State Protection Group, and was expressed in the following terms: 1. That you be reduced in increment from Senior Constable Level 6 to Senior Constable Level 4 Step 2 (s 173(2)(a)); and 2. That you be disciplinary transferred from the SPG Dog Unit to Liverpool Local Area Command (s 172(2)(d)). 2 The order arose as a result of adverse findings made against SC Gilmour in respect to three separate incidents in 2005 and 2006 at the Menai Police Dog Training Facility. The incidents might all be characterised, in short form, as involving the alleged mistreatment of dogs by SC Gilmour, whilst they were in his care. Each of the incidents will be referred to for convenience as: a) the Puppies incident; b) the Roscoe incident; and c) the Tyson incident. 3 Specifically, it was alleged that SC Gilmour had engaged in inappropriate conduct, described in the order as misconduct and unsatisfactory performance, in that he had: a) allowed a number of Labrador puppies to fall from a raised platform and had dropped at least one puppy from waist height, placing the puppies in danger of serious injury; b) thrown a piece of hardened hose (about half a metre long) at an Alsatian, Roscoe, during the training assessment of the dog and had hit the dog causing it pain; and c) intentionally frightened an Alsatian, Tyson, by firing a gun into the air approximately 10 metres from the dog, contrary to noise testing practices and guidelines. 4 Each of the incidents were the subject of intensive examination through the oral and documentary evidence presented in this case. I shall come to that evidence shortly, but firstly, I shall make reference to the relevant provisions of the Act under which this application is brought and is to be considered. RELEVANT PROVISIONS OF THE POLICE ACT 1990 5 The Industrial Relations Commission of New South Wales is empowered by Pt 9 Div 1 of the Act to review certain disciplinary action taken against police officers, by the Commissioner of Police, for reasons of misconduct or unsatisfactory performance. Section 173 identifies two categories of disciplinary action which may be taken against the offending officer. 'Reviewable action' - as the name implies - is that action defined at s 173(2) which the Commission is empowered to review. Reviewable action includes the following: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. 6 In this case, the reduction in SC Gilmour's grade from Senior Constable Level 6 to Senior Constable Level 4 Step 2 and his disciplinary transfer are both 'reviewable actions' contemplated by the section. No jurisdictional issue, therefore arises. 7 Section 174 permits an application to be lodged by an industrial organisation of employees (as is the case here) on behalf of a police officer for review of an order of reviewable action on the grounds that the order is beyond power and/or is harsh, unreasonable or unjust. 8 As I said in Saliba and Commissioner of Police [2006] NSWIRComm 200, there is a degree of synergy between the provisions of Div 1A and 1C of Part 9 of the Act and the Commissioner's lack of confidence (dismissal) provisions found in s 181D and s 181E of the Act. That being so, the Industrial Commission's authorities in cases under s 181D and s 181E of the Act have obvious application to the proceedings on review in s 174 applications. 9 The correct approach to be adopted in a s 174 review case is that identified in Hosemans v Commissioner of Police (2004) 138 IR 159, where the Full Bench, albeit in a s 181D case, said at par 134: ...The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. Further, that review process is to be undertaken in accordance with the provisions of s181F(1) of the Police Act which states: (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. 10 Notwithstanding the contrary submission of Ms K Nomchong, Counsel for the Police Force, there is no doubt, in my opinion, that the Police Force bears the onus of proof in establishing the misconduct against SC Gilmour. That standard of proof is on the balance of probabilities: See Starr v Commissioner of Police [2001] NSWIRComm 226. I have therefore adopted the principle that the onus for proving all three allegations of misconduct rests with the Police Force. So much so must also be evident from the various authorities cited in this case; notwithstanding that they deal with dismissal provisions under s 181D. As will be seen below, both s 181F(2) and s 175(2) are expressed in similar terms: 181F Proceedings on a review ... (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. ... 175 Proceedings on a review ... (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. ... That being so, there is no reason to draw any distinction between the sections as to onus where disciplinary action, including dismissal, has arisen as a result of allegations of misconduct. 11 If the misconduct is not proven to the requisite standard, the onus reverts to the applicant to establish a case that the s 173 order was, either beyond power and/or was harsh, unreasonable or unjust. This is a mixed question of fact and law: See Allchin v Commissioner of Police (No 2) (2007) 168 IR 170. In Mahoney and Commissioner of Police [2003] NSWIRComm 67, I considered the meaning of the expression harsh, unreasonable or unjust in s 175(2) of the Act. At paras [118] to [123] I said: 118 Section 175(2) of the Act places the onus on the applicant to establish that the Commissioner's order was either 'beyond power or is harsh, unreasonable or unjust.' The expression 'harsh, unreasonable or unjust' is also to be found at s181E of the Act; that section dealing with the Commission's power to review an order of the Commissioner of Police for the removal (dismissal) of a police officer. In my opinion, the expression 'harsh, unreasonable or unjust' can be defined in the same way where it appears in both sections of the Act, even though one section deals with disciplinary action and the other deals with dismissal. 119 Obviously the effect of whether an order is 'harsh, unreasonable or unjust' will likely be very different in circumstances of dismissal as distinct from disciplinary action. That merely demonstrates the point that the application of the principles of whether an order is 'harsh unreasonable or unjust' will very much depend on the facts and circumstances of a particular case. 120 There can be little doubt that the principles which have been established in unfair dismissal cases under Pt 6 ch 2 of the Industrial Relations Act , lay at the foundation of the tests to be applied under s181E and F of the Police Act . Indeed, there is particular reference to the unfair dismissal provisions of the Industrial Relations Act in s181G of the Police Act. As the Full Bench said in Newton v New South Wales Police Service : The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s84 apply to s181F review proceedings, subject to the there specified modifications. 121 The expression 'harsh, unreasonable and unjust' has been considered on numerous occasions in decisions of the Commission under Pt 6 ch 2 of the Industrial Relations Act , (See discussion in Jankowski v Excellent Management 2003 NSWIRComm 32 and Heape v General George Carpet 2002NSWIRComm 146, where I refer to the definition of 'harsh, unreasonable and unjust' citing Byrne & Anor v Australian Airlines (1995) 61 IR 32, Outboard World v Muir (1993) 51 IR 167 and Bankstown City Council v Paris (1999) 93 IR 209). See also Laird v Commissioner of Police [2001] NSWIRComm 170 and more recently Commissioner of Police v Wayne Edward Collins [2008] NSWIRComm 162 at paras 61 to 63. 12 Issues of procedural unfairness featured large in this case. Like an unfair dismissal case, issues of procedural unfairness may render a reviewable order under s 173 of the Act, harsh, unreasonable or unjust: See Wells v Commissioner of Police (2000) 100 IR 106; Van Huisstede v Commissioner of Police (2000) 98 IR 57; Starr v Commissioner of Police; Commissioner of Police v Collins v Police; Allchin v Commissioner of Police (No 2); Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333; Newton v New South Wales Police Service (1999) 87 IR 66 and Flanagan v Commissioner of Police [2008] NSWIRComm 138. 13 There are, however, a series of mandatory steps the Commissioner of Police is required to take before making an order of reviewable action. These are found at s 173(5) to (7) 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. 14 While a failure to adopt an absolute adherence to these procedures might not automatically invalidate the order, there is no doubt that there is a significant emphasis placed on these steps being adhered to by the Commissioner prior to the making of an order under s 173. This matter was discussed in Little v Commissioner of Police (No 2) (2002) 112 IR 212, where the Full Bench said at par [75]: 75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. 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 . In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]: 193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: … it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … 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 … That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons. 194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess 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. 195 As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision. 196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 197 Further, the Full Bench stated (at 390): While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50. 199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion. 200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. 15 Obviously, the above case was one brought under s 181E of the Act, but, to my mind, the same considerations are apposite to orders made under s 173 of the Act. 16 Another aspect of procedural unfairness, which was described by Mr Howell as 'manifestly unreasonable', was the significant delay between the alleged misconduct and the final order of 'reviewable action' - a period of over two years. 17 Notwithstanding expressions of concern, I, and other members of the Commission, have made about delays in the internal investigation process of the Police Force, such delays continue, and are almost the norm, in such cases. As I said in Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176 at [87]: 87 Finally, I would also express my concern with the time it took from the incident on 18 January 2007 to the decision of Superintendent McErlain to revoke the Leading Senior Constable status on 18 June 2007. After all, SC Sharman's formal interview was only a few days after the incident. While I accept that a thorough and rigorous inquiry is necessary in any investigation of an officer's misconduct (obviously, so as to avoid any allegation of procedural unfairness), it is difficult to comprehend why a matter of this kind took six months from interview to decision. An unreasonable delay may draw a similar complaint of unfairness as it would if an allegation of misconduct was not properly investigated. There may be extenuating circumstances, of course. I am unsure if there were in this case. Nevertheless, I raise this matter as another example, of the concern the Commission has expressed on other occasions about delays in internal disciplinary investigations within the New South Wales Police Force. 18 His Honour, Boland J, President, said in Burrows v Commissioner of Police at paras [167] to [169]: 167 The fact that it takes five months from the time when a removal recommendation is made to when a Notice is issued is hardly consistent with a legislative scheme that purportedly allows the Service to "quickly free itself" of those who fail to meet proper standards. 168 I note the comment in the Second Reading Speech that police officers are to be regarded as being on a similar footing to other employees under the Industrial Relations Act. If an employee in the private sector had to wait eight months between the time he or she was interviewed about some alleged misconduct and the time he or she was eventually dismissed and, in the meantime, the employee continued in employment as though nothing had happened, it would be a rare case indeed that the dismissal would be found to have been justified. 169 In Owens v New South Wales Police Service (1998) 87 IR 1 Schmidt J found "there was an inordinate delay in the question of Mr Owens' continued employment being dealt with by the police service, during which period Mr Owens continued to work as a police officer in a most commendable manner". The delay extended over a period of some 16 months. This delay, coupled with deficiencies associated with the process leading to the applicant's removal, led Schmidt J to find that the dismissal was harsh. Her Honour ordered five months' compensation to be paid to the applicant. 19 I shall return later to consider whether the length of the investigation in this case was such as to warrant a conclusion that the reviewable action was unreasonable. 20 There are two discrete matters the Commission must have regard to when determining a claim under s 175: the interests of the applicant and the public interest. Similar provisions are not found in the unfair dismissal provisions of the Industrial Relations Act 1996. Here they have a particular and specific meaning under the Police Act. Described as competing interests, a recent Full Bench of the Commission discussed this issue in some detail. In Commissioner of Police v Collins at paras [53] to [58] the Full Bench said: 53 Her Honour was aware of the requirement to balance the interests of the respondent with those of the public interest under s 181F(3). Her Honour was also aware that maintaining the integrity of the NSW Police Force was one of many factors to be taken into account in the public interest. We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors. This point was clearly made in the Full Bench decision of Commissioner of Police v Evans (2006) 153 IR 144 at [4] - [6]: [4] The essence of the appellant's submissions -- reflected in her Honour's judgment -- is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. [5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996 NSW, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests. [6] The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3). 54 In Commissioner of Police v Dobbie (2006) 157 IR 44, the point was re-affirmed by the Full Bench which held (at [67]) that, "[s]ection 181F(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made," (see also Johnston v Commissioner of Police (2007) 169 IR 301 at [62]). 55 More recent affirmations of the point may be found in two decisions of the Commission. The first of these is Flanagan v Commissioner of Police [2008] NSWIRComm 138 at [22] where the Full Bench said: [22] These are all matters about which we would have been prepared to grant leave to appeal. Whilst it is unnecessary to resolve these issues in light of the decision we have reached as to a denial of procedural fairness, we should mention two matters deriving from the further grounds. First, we think it is desirable that the approach to the question in s 181E of the Police Act should be undertaken as closely as possible in accordance with the language of the section and the applicable test there stated. Secondly, as to the operation of s 181F(3) of the Police Act, we agree with the observations of Walton J, Vice-President in Van-Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57, where his Honour stated: [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." 56 The second decision is Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147 where the Full Bench said: [7] There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act. Nor is there any authority which supports a proposition that a review of an order pursuant to s 181D(1) of the Act is subject to, by reason of some "special relationship" said to exist between the public and members of the police force and members (or between the Commissioner of Police and members of the police force), different considerations from an unfair dismissal claim under the Industrial Relations Act 1996. In relation to this latter point the review provisions under s 181G(1) of the Police Act import the statutory regime under the Industrial Relations Act relevant to unfair dismissal applications, subject to a few express and relatively minor modifications. 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). 21 If the Commission is satisfied that a case has been made out, the following avenues are open in arbitral proceedings under s 177: a) the Commission may revoke the order (s 177(1)(a), or b) the Commission may revoke the order and make such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173 (s 177(1)(b). The orders sought in this case are said to fall under s 177(1)(b). The name 'otherwise' orders became a commonly used expression adopted by Counsel to describe the orders sought. I shall say more about the 'otherwise' orders later in this decision. LIST OF WITNESSES 22 The following is a list of witnesses who gave evidence in these proceedings: · Sergeant Stephen Robert Pearse, Retired ('Mr Pearse') · Acting Sergeant David John Wright, Dog Development Officer ('AS Wright') · Senior Sergeant David Charles Williamson, Training Manager ('SS Williamson') · Sergeant Roger Hedley Mayer, Supervisor/Team Leader, Operational Handler ('Sgt Mayer') · Inspector Peter John Hinds, Operations Manager, Dog Unit ('Insp Hinds') · Ms Mechelle Sayhoun, Kennel Attendant · Ms Nicole Ralph, Kennel Attendant · Detective Superintendent Julie Middlemiss, Commander, Dog Unit, State Protection Group ('Supt Middlemiss') BACKGROUND SUMMARY 23 SC Gilmour joined the New South Wales Police Force in 1988, specifically to enable him to join the New South Wales Police Dog Unit. Since the age of 17, he had worked as an electrician. After working for two years in general duties, and after successfully completing a Police Dog Handlers' Selection Course, he was transferred to the then South Region Dog Unit. He has worked in the Dog Unit for a total of 18 years. 24 SC Gilmour described the role of the New South Wales Police Dog Unit as follows. Prior to becoming centralised under one command in 1997, the Dog Unit was divided into five regions. Today the Unit's central command is at the education and training facility in Menai. It is here that much of the dog training is undertaken. The Unit has a staff of 111, including sworn and non-sworn officers and a large group of sworn technical practitioners who act as handlers and trainers. 25 There are two types of dogs which are considered suitable for police dog work. Their training is different. The majority of dogs trained are male German Shepherds, and to a lesser extent Rottweilers and Belgian Shepherds. These are known as general purpose dogs and are used primarily for the tracking and arrest of offenders. Detection dogs are usually Labradors and are used in the detection of drugs and firearms. The dogs come to the Unit, either as puppies from the Australian Customs Service or as older dogs donated from members of the community. 26 Each General Purpose Dog Handler has their own dog which they keep with them at all times. The officer starts and finishes a shift from home, using a police vehicle. The operational team (the handler and the dog) will carry out patrols in their allocated region, either by responding to, or being attached to specific areas or incidents. Each team has a designated operational trainer who organises and supervises monthly training, under the guidance of a full time Novice / Operational Trainer. These positions are only held by one or two full time officers and SC Gilmour became an accredited Novice Dog Trainer in mid 1998. Their work involves responsibility for the selection and training of handlers, the selection, assessment and training of puppies and dogs and the carrying out of annual accreditation of operational dog teams. SC Gilmour was the only full time Novice Trainer between 1998 and early 2002 and was responsible for most of the delivery of the Unit's training requirements. From 2002, that role was shared with Senior Constable Steve Collier, Training Manager ('SC Collier'). 27 SC Gilmour was appointed to a new position, that of Puppy Development Officer in late 2004 / early 2005, shortly after Supt Middlemiss arrived at the Unit. This position entailed the selection, assessment, training, upbringing, welfare and care of puppies and dogs bred, purchased or donated. 28 In June 2006, Insp Hinds received a complaint from Ms Lisa Boyle of the National Training Academy concerning her German Shepherd dog, 'Storm'. Ms Boyle had previously supplied puppies to the Dog Unit and 'Storm' had been returned to her with an unexplained injury. Ms Boyle had complained about the treatment of her dog and said that it was subject to an unacceptable gun test by SC Gilmour. She also complained about previous issues she had had with SC Gilmour. As a result of her complaint, all gun tests were then suspended. 29 The complaint was referred by the Counter Terrorism and Public Order Management Complaints Team to Insp Hinds for assessment. On 23 June 2006, Insp Hinds and Supt Middlemiss had a meeting with Inspector Slade Macklin from the RSPCA to discuss developing a noise gun steadiness test for dogs, which would not cause them discomfort. They decided to review the Unit's practices and new procedures were drafted, which were acceptable to the RSPCA. The Complaints Management Team ('CMT') considered that Ms Boyle's complaint was a procedural matter which had been addressed by the new procedures. No complaint was registered on the Customer Assistance Tracking System (c@ts system) and the matter was considered concluded. 30 On 3 July 2006, SC Gilmour was informed by Supt Middlemiss that further complaints about him had been made by another police officer. SC Gilmour was directed to work from the office on restricted duties as a Unit Co-ordinator. He was to have no involvement with the dogs or their training. 31 A further complaint was made around this time about the training of a dog 'Jerry' between late March and May 2006. Insp Hinds prepared a report for the CMT and was instructed to investigate the complaint based on the following plan: a) To examine the veracity of the allegation to determine whether an offence under the Prevention of Cruelty to Animals Act had been committed; and b) To examine the issues relating to the investigation to determine if there are any NSW Police systems or processes relevant to the complaint issues to identify any contributing factors to the conduct of the subject officer. 32 On 4 July 2006, Insp Hinds received a letter from the RSPCA concerning the earlier 'Storm' matter. This time the complaint was registered on the system. Insp Hinds interviewed a number of people about the first recorded complaint and formed the view that it was unlikely that any criminal offence would be proven. As a result of these interviews, Insp Hinds found it necessary to interview other persons, which he did during the period September to November 2006. 33 In mid-August 2006, SC Gilmour was advised that another complaint (the unauthorised recording of colleagues' conversations) had been made and that he was to be transferred to the Lake Illawarra Local Area Command (LAC) at Albion Park on general duties. As he had not been on general duties since 1990, his firearm was taken from him and he was placed on restricted duties, namely administrative work. Inspector Paul Freeman, Counter Terrorism Command ('Insp Freeman') was appointed to conduct this investigation. After two weeks, SC Gilmour was transferred to Port Kembla Police Station to work as an Exhibits Officer. His duties involved photocopying, labelling and storing exhibits. He has been in that role ever since. 34 SC Gilmour's interview was on 22 November 2006. It was attended by Inspector Christopher Condon, Dog Unit ('Insp Condon') and SC Gilmour's support person, Sgt Mayer. 35 Insp Hinds completed his investigation in December 2006 and presented his report to the Commander (Supt Middlemiss) on 10 January 2007. Of 15 matters investigated, Insp Hinds sustained three complaints (the three matters subject to the s 173 order) and recommended that SC Gilmour not perform duties that required him to assess / interact with puppies, or train handlers in an unsupervised manner. Insp Hinds emailed SC Gilmour on 10 January 2007, outlining his findings and recommendations. 36 On 29 January 2007, after considering Insp Hinds' report, the CMT recommended that SC Gilmour be given a Commander's Warning Notice and placed on a three month Conduct Management Plan ('CMP'). Supt Middlemiss did not agree with this recommendation. It is to be noted that Insp Freeman's report had not been completed by this time. 37 On 19 February 2007, SC Gilmour responded to Insp Hinds' report and raised issues of Insp Hinds' bias and conflict of interest in regard to a number of heated disagreements that had occurred between them over training issues. He also complained that Insp Hinds was not appropriately qualified or experienced in police dog training. 38 On 1 March 2007, the CMT decided on an independent review of Insp Hinds report after SC Gilmour's complaints. Detective Inspector Andrew Jenkins, Commander, Witness Security Unit, Anti Terrorism & Security Group ('Insp Jenkins') was appointed to conduct a second review. On 30 March 2007, Insp Jenkins reported on his review and declined to alter Insp Hinds' findings and recommendations. However, it appears that he agreed to the penalty of a Commander's warning and a CMP, which had been earlier recommended by the CMT. 39 On 21 March 2007, Insp Freeman provided a report which cleared SC Gilmour of any wrong doing in respect to the alleged unauthorised recording of colleagues' conversations. However, he strongly recommended that SC Gilmour not be returned to the Dog Unit until all the other matters had been finalised. 40 On 5 April 2007, the CMT referred the matter to the Internal Review Panel ('IRP') as required by the Police Force's disciplinary process. 41 On 14 August 2007, the IRP recommended that SC Gilmour's increment be reduced and he be transferred from the Dog Unit to a location to be determined. Supt Middlemiss supported this recommendation. That day, she met SC Gilmour at Port Kembla Police Station and advised him of the outcome of the IRP, gave him an information package and nominated a peer support officer for him. 42 The Show Cause Notice was not issued until 10 January 2008, after a new location of Liverpool LAC was identified in November 2007. 43 On 1 February 2008, the Association responded to the Show Cause Notice on SC Gilmour's behalf and on 5 April the order under s 173 of the Act was confirmed. THE ALLEGATIONS The Puppies Incident 44 SC Gilmour strenuously denied ever assisting and/or encouraging any puppies to walk up equipment 5 ½ feet off the ground and allowing them to fall off. He further denied ever dropping the puppies from waist height. SC Gilmour said there was no equipment in the puppy compound which was anywhere near 5 ½ feet high. He provided photos of similar equipment used by the Australian Customs Service. He said that the ladder and plank equipment in the puppy socialisation area at the time was 90cm high. 45 SC Gilmour accepted that he did work, on two occasions, with the puppies in question. First, when they were eight or nine weeks old and again when they were six months old. Both assessments were witnessed; the first by SC Collier and the second, by SS Williamson. SC Gilmour insisted that the nine week assessment was not conducted outside in the training compound or on any of the agility equipment. The assessment was performed inside the demountable shed. At the time the applicant had recorded the results on a separate form which had two pages. Later, after the puppies had been named, he had transcribed the results to the Puppy Behaviour and Drive Assessment Form. This form disclosed that the tests had been conducted in the demountable. 46 In cross-examination, SC Gilmour described the various tests he performed on the nine week old puppies in the demountable shed when SC Collier was present (SC Collier is no longer in the Police Force). These tests included assessing the reactions of the puppies to being put on a slippery floor, on a table, rolled over and held down, sound test (using a can of marbles), a social temperament test and a ball retrieval test. He said agility tests were not performed on detector dogs. SC Gilmour said he would mark the results on a sheet of paper and later transcribe the results into a more easily readable form. The tests were designed to detect any fear response which was undesirable for a detection dog. SC Gilmour agreed that as the puppies were born on 1 July and if the test was on 1 September, it would make them almost nine weeks old. He agreed the test wouldn't usually be done at six weeks of age. However, he believed the puppies were seven weeks old. SC Gilmour was shown an assessment sheet which he believed was copied out of the training book. He believed these scores related to the tests he earlier described above. 47 SC Gilmour said that on 12 January 2006, he conducted the six month assessment on five of the nine puppies. He said SS Williamson was going to do the test on the remaining puppies at a later time as he was going on leave. The tests he conducted were in the puppy socialisation compound, the adult agility compound and the paddock adjacent to the puppy compound. He was asked why he had not included this detail in his earlier statements or in what he had told Insp Hinds at his interview. He said he hadn't mentioned these other areas, because the allegation only concerned an assessment in the puppy compound. SC Gilmour described the tests performed on the six month old puppies. They included a food drive test, using various obstacles in the three locations. He agreed he had told Insp Hinds he had conducted a ladder and plank test because it was part of the food drive testing. He had never conducted this test on six, eight or nine week old puppies. 48 SC Gilmour said the ladder and plank are no longer in the puppy compound. However, it had not been 160cm high. It had no rails or banisters and one could see through each step. SC Gilmour said that part of the food drive test is to take the puppies outside the Unit to the Menai Marketplace Shopping Centre. He agreed he had not mentioned this test in his statements. SC Gilmour again denied he had conducted a ladder and plank test with puppies who were three months old or younger and denied he had watched them fall or had picked them up and dropped them. 49 SC Gilmour was closely questioned as to the two assessment sheets recording the 49 day test. He explained that the reasons why the two sheets were two weeks apart was because the first sheet was confusing and the puppies had not yet been named. However, there was a time difference on the two sheets which he could not explain. SC Gilmour claimed that the second assessment was missing a second page. However, he didn't know the whereabouts of the missing page. 50 In re-examination, SC Gilmour said that he had observed a Senior Constable Frank Inglese's ('SC Inglese') conduct the three month assessment of the puppies as they were under his guidance at the time. 51 Mr Pearse was asked about a document SC Gilmour had sent him around January 2008 concerning the puppies incident. From this document, Mr Pearse understood that SC Gilmour had conducted a food drive assessment in September 2005 on three month old puppies in the puppy compound. Mr Pearse understood the allegation was that SC Gilmour allowed the puppies to fall from the ladder and plank - a distance of around five or six feet. Mr Pearse was questioned about his meeting with a kennel attendant, Ms Robyn Eckhart on 2 September 2005. He could not recall her being very upset, nor could he recall her saying she had seen SC Gilmour letting the puppies fall from the ladder and plank. He could not recall her leaving the meeting in tears. In re-examination, Mr Pearse said he couldn't even say she was at the meeting because he usually recorded who was present, and there was no reference to her in his duty book entry. Mr Pearse said he did not believe that Ms Eckhart, Ms Sayhoun or Ms Ralph had felt uncomfortable about bringing complaints to him. Mr Pearse said that, at the time, there was a lack of documented standard procedures (except for the puppies) and trainers had their own opinions about the suitability of a particular dog. This lack of procedures was being addressed at the time and protocols were being developed nationally. 52 While not a witness to the incident, AS Wright deposed that it would be inappropriate if eight week old or even three month old puppies were encouraged to jump of a raised platform, at 5 ½ feet high. He could see no reason why it would be necessary to drop a puppy from waist height. In re-examination, AS Wright said there had been a ladder and plank about 1.5m high in the agility area for the adult dogs and a much shorter ladder and plank in the puppy area. However, that equipment has now been replaced. 53 SS Williamson deposed that he was present when SC Gilmour assessed a number of three to four month old Labrador puppies, for food drive and social competence. He said he was certain that these tests were conducted in the demountable sheds. The assessment involved hiding or placing pieces of kibble for the puppies to search for and locate. This involved the puppies climbing over besser blocks, table and chairs and other obstacles. This assessment was consistent with the usual training practice. The puppies were encouraged over various types of height apparatus and various surfaces. One instance involved the puppies walking over a metal door frame. He couldn't recall if the puppies went up the ladder and plank apparatus. 54 SS Williamson couldn't recall if the instance he remembered was the same as the 49 day tests SC Gilmour said he had conducted. He said it just wasn't an important enough issue for him to recall. However, he most certainly did not see SC Gilmour drop any puppies from waist height. He agreed that dropping a puppy from even 60cm would put it in danger of injury. 55 Sgt Mayer said that the ladder and plank equipment in the puppy compound had not been 5 ½ feet high or even four feet high. He believed it came to just above the knee. Sgt Mayer said he could not imagine any situation in which SC Gilmour would drop an eight week old puppy from waist height. There is absolutely no training reason to do so and it may injure the dog. He agreed it would be inappropriate to encourage puppies to fall or jump from a height of 100cm or more as it would place them in danger of injury. Sgt Mayer said that in his experience, SC Gilmour's first priority was the welfare of the dog and he couldn't imagine him doing such a thing. He was aware that SC Gilmour had been bitten a number of times trying to protect a dog from injury. Sgt Mayer said that although he was not a witness to the incident, in 10 years of working with SC Gilmour, he had never seen him pick up a dog and drop it and had never seen him engage in inappropriate or dangerous practices. He believed that SC Gilmour had lived by the rule that the care and welfare of the dog was the first priority. 56 In her evidence, Ms Sayhoun described the layout of the Dog Unit, and in particular, what was in the puppy compound in 2005. She said the equipment there comprised a: § spa bath raised from the ground; § ladder and plank with open stairs up to a high plank; § tin A-frame corrugated iron structure for the puppies to climb over and practice on uneven surfaces; (Ms Ralph described the A Frame as four foot high.) § window which could be opened and closed and raised to different heights for the puppies to climb and jump through; § slippery dip which had a screen security door utilised as a ramp for the pups to be socialised with climbing up an uneven/unusual surface and sliding on a slippery surface (slippery slide). 57 Ms Sayhoun said that she could not recall any tests being done on the litter of nine Labrador puppies in 2005 in the demountable building. She claimed that it would have been a big effort to move the litter from the puppy compound to the demountable and she would have known about it, because it would have been her job to do so. 58 Ms Sayhoun said that she observed, from a distance of about 50 metres, SC Gilmour carry out an assessment of the puppies in the puppy compound in September 2005. She attached an assessment sheet she said was the sheet SC Gilmour had used and which was dated 1 September 2005. There was no second page. She recognised SC Gilmour's handwriting which included a reference to a test 'hight (sic) on table' - a test to assess how comfortable the puppies were on a high surface. 59 Ms Sayhoun claimed that she saw SC Gilmour assist all nine puppies up the plank and most of them fell off. He did not intervene and had then proceeded to pick all nine puppies up and drop them from waist height. She said another kennel attendant, Ms Eckhert witnessed the incident. (Ms Eckhart has since left the Dog Unit.) Ms Sayhoun said that while she knew what she had seen was wrong, she did not say anything to SC Gilmour or her direct supervisor, Mr Pearse. She claimed that Mr Pearse had done nothing about other complaints she had raised with him. 60 Ms Sayhoun rejected SC Gilmour's description of the ladder and plank. She had actually purchased the equipment for the puppy compound and a builder constructed the ladder and plank equipment which was almost as high as the one in the agility compound for adult dogs. She remembered thinking at the time that the puppy equipment was too high for puppies. 61 Ms Sayhoun said she had been relieved when she was interviewed by Insp Hinds as someone was now going to listen to her. In her interview with Insp Hinds she referred to SC Gilmour assisting the puppies 'to climb up the little ramp thing'. She now believed that this was a reference to the ladder and plank equipment in the puppy compound which was five feet off the ground and that there was a higher piece of similar equipment in the main agility area. Ms Sayhoun agreed that the 'little ramp thing' was actually stairs. She believed that the adult ladder and plank was higher than 160cm. She denied the puppy version of the same equipment was much smaller. She believed that it wasn't suitable for puppies and the attendants never used it, or allowed the puppies to play there unsupervised. 62 Ms Sayhoun could not recall if anyone else was with SC Gilmour at the time of the incident. She conceded that she and Ms Eckhart had stood by and watched all nine puppies fall off the equipment and be dropped from waist height and did nothing; notwithstanding that the puppies might have been injured (which they had not). She denied her allegations were absurd. She said SC Gilmour encouraged each puppy up the stairs, but didn't know if he was using food or patting the stairs. She insisted the puppies were eight or nine weeks old. 63 In cross-examination, Ms Sayhoun was asked about when the puppy equipment had been installed. It was suggested that she could not have seen the incident on 1 September 2005, because the puppy equipment was not finished until 6 September. She could not recall if the ladder and plank equipment was concreted into the ground after the perimeter fence was erected. She now said she couldn't recall the actual date of the incident, but she just knew what she saw. Ms Sayhoun agreed that at the time she was interviewed by Insp Hinds, she didn't know the date of the incident. When she later found the assessment documents, she believed it would have been 14 September 2005. 64 Ms Sayhoun agreed that she had assumed the puppies were nine weeks old. She again insisted that she had seen nine puppies fall off the equipment while SC Gilmour looked on and did nothing. She maintained that she then saw all nine puppies being picked up and dropped from waist height. 65 Ms Sayhoun conceded that if she had witnessed an act of cruelty to a dog in the care of the Police Force, she had a responsibility to do something about it. She agreed she had done so previously in respect to other complaints against SC Gilmour. However, she accepted she had not told Insp Hinds of these other instances. When pressed by Counsel, she could not recall any date or month she had raised these other matters with Mr Pearse. 66 Ms Sayhoun had told Insp Hinds she had not spoken to anyone about this incident. She now agreed that she had spoken to Ms Eckhart, but couldn't recall if she had spoken to Ms Ralph or Senior Constable Paul Anthony Smith, Dog Unit ('SC Smith'). She denied giving SC Smith a very different version of the incident to what she had told Insp Hinds. 67 In re-examination, Ms Sayhoun said that she knew the difference between eight and nine week old puppies and six month old puppies and that it was not possible that what she saw involved six month old puppies. 68 Ms Ralph attached three photographs of German Shepherd puppies near a ladder and plank equipment which was approximately 5 ½ feet high. She said that she had seen SC Gilmour testing Labrador puppies, around eight weeks old, on this equipment in the puppy compound. She didn't see anyone else with him. She had told Insp Hinds that she saw SC Gilmour encourage a puppy up the plank and to walk to the side. She saw one puppy jump off. She said that she could not recall what she had done immediately afterwards, but may have said to Ms Sayhoun that it was not right to have puppies jumping off this height of equipment. She claimed that she did not feel comfortable questioning SC Gilmour, as he was the trainer. 69 In cross-examination, Ms Ralph confirmed that she believed the puppies were eight weeks old because she knew when they were born and when she saw the assessment. She said she knew the difference between an eight week old and six month old puppy. Ms Ralph denied speaking to Ms Sayhoun or SC Smith about the incident. 70 Ms Ralph agreed that at the time there were two sets of ladder and planks. However, she did not agree that the one in the puppy compound was substantially smaller than the other. In reply 71 In a further statement, SC Gilmour said that the demountable building was not an empty building. He accepted that the 49 day assessment he did on the puppies was on 1 September. He said all young puppy assessments are conducted indoors so there are no distractions. 72 Supt Middlemiss had said that when she checked if SS Williamson had witnessed the assessment of seven or eight week old puppies on 1 September, the Duty Book showed him not being at Menai on that day. In reply, SC Gilmour said he never said it was SS Williamson who witnessed the incident. It was SC Collier. He believed that the Duty Book for 1 September disclosed that SC Collier was at the Menai facility carrying out training and office duties. Supt Middlemiss had said that no files or assessment sheets could be located for this assessment, notwithstanding that Ms Sayhoun produced an assessment and SC Gilmour said he had found further copies of the assessment. 73 SC Gilmour recalled that on the day of the incident, Ms Sayhoun and Ms Ralph had brought the puppies to the demountable and placed them in a dog trailer next to the building. SC Gilmour assessed each puppy individually with SC Collier observing. After each puppy's assessment, he passed the puppy to Ms Sayhoun, who then handed him the next puppy. He believed a coloured identification collar would be put on each of the assessed puppies, although he didn't see Ms Sayhoun do this. At the completion of the assessment, SC Gilmour left the puppies with Ms Sayhoun. 74 SC Gilmour said the words on the assessment sheet 'hight (sic) on table' confirmed that the puppies were placed on a table in the demountable. SC Gilmour denied he assessed the puppies in the puppy compound, as there would be no point, because there is no agility assessment of a puppy at that age. He did have these puppies in the puppy compound when he undertook their six month food drive assessments. He had assessed five dogs and because he was going on leave he asked SS Williamson to complete the remaining tests. 75 SC Gilmour said that the equipment in the puppy compound was not five feet off the ground. It was a little above hip height. SC Gilmour said there was a big difference between the puppy socialisation equipment and the adult dog agility equipment. The puppy equipment was not 'almost as high' as the adult equipment. There was no way he, or anybody else, would have allowed such high equipment to be used for puppies, where they might injure themselves. He had not assisted the puppies to climb the ladder and plank and encourage them to fall off. He added that he had never assessed a group of puppies all together. 76 SC Gilmour said he could not imagine why, if Ms Eckhart was present during the incident, she would not have brought it to the then Commander's attention. He said Ms Eckhart was 'seeing' the Commander at the time and they were, in fact, his puppies. 77 In his reply statement, Mr Pearse said that the ladder and plank in the agility compound was 5 ½ feet high and he had used it many times. The puppy ladder and plank had four steps at approximately 20cm rises, making it around 100cm high. He said that, at no time, had Ms Sayhoun or Ms Ralph, or anyone else, expressed concern about the height of the puppy equipment. Mr Pearse said that he had supplied the material for the A Frame, which was less than 90cm high, not four foot high as described by Ms Ralph. The Roscoe Incident 78 SC Gilmour agreed that he had assessed the Alsatian Roscoe and the incident was on 1 November 2005 - not between August and September 2005. He could not recall the actual testing he did with Roscoe and had trouble remembering the incident at his interview with Insp Hinds. He had later relied on his training notes which identified the incident and that the assessment was carried out with Roscoe's handler, Senior Constable Christopher Martin, Dog Trainer ('SC Martin'). The applicant's noted record was as follows: Dog started fighting with detector dogs through fence when released into compound. Was corrected after which dog showed little interest in play. Was not interested in retrieve exercise. Dog was put away and brought out later in day and assessed. Dog has problem with his defence drive and as which is not suitable to be trained as a police dog. 79 The applicant said that generally he would use a tennis ball, a piece of rolled hessian or a piece of rubber hosing (an example of which was tendered in the proceedings) when working with the dogs. However, he strongly denied that he had thrown the rubber hose with the deliberate intent to hit the dog; claiming it was just something he would not do. In cross-examination, SC Gilmour was asked a number of questions about the incident - all of which he could not recall. However, SC Gilmour again denied deliberately hitting Roscoe with a rubber hose in order to hurt the dog to get its attention. SC Gilmour agreed that hitting a dog would be inappropriate and would only be necessary if the dog was biting someone, or another dog or was itself in danger. 80 In re-examination, SC Gilmour said that correcting a dog in the circumstances of the Roscoe incident would involve firstly, attempting to do so verbally. If this didn't work, it was usual to throw an object as close as possible to the dog in order to distract it. He and other trainers had often used this method. 81 Mr Pearse gave evidence that in attracting a dog's attention, all handlers are instructed to throw a lead at the dog. If the lead inadvertently hits the dog, this would not be a problem. Mr Pearse did not think it was inappropriate to throw a 30cm piece of rubber hose at the dog to get its attention. The hose may not necessarily hurt the dog, even if it is thrown at full force. He had used this method in training dogs for a long time. He also considered it may be appropriate, depending on the circumstances, to throw a 30cm piece of hose at full force hitting the dog, whether it is a dog bred within the program or brought in from external sources. He said that a dog yelping does not necessarily indicate pain, but may indicate fright. In re-examination, Mr Pearse said a rubber hose is used because it is a tug of war toy; soft on the dog's mouth, with a bit of flex, the dog can bite hard on it and it can bounce. He said that throwing an article three feet away from the dog has no effect, as the object is to get its attention. 82 AS Wright gave evidence that whilst he had not seen the incident with Roscoe, it was a common training technique to throw an article, such as a rubber ring/hose or tennis ball to distract a dog from unwanted behaviour or to redirect its attention. Choker chains are still used in order to call off a dog, although there is no documented practice in any manual. He said that the sound of the chain is often enough to change its behaviour, which is followed by a command, then praise. Once this has been done a few times, a rattle of the chain will usually be sufficient to attract the dog's attention. AS Wright said that in extreme cases, the chain may hit the dog, without ever injuring it. He had experienced this situation. Faced with a similar scenario as the Roscoe incident, AS Wright described what he would do. Firstly, he would try to verbally correct the behaviour, then throw an article near the dog. If this failed, he would put the dog on a lead and remove him/her from the enclosure. 83 In cross-examination, AS Wright agreed that he would not throw a pipe at full force, directly at a dog as it would be inappropriate to do so; particularly if it caused the dog to yelp in pain. In re-examination, AS Wright said the training practice he had earlier referred to, had not been changed, by Management, since this incident. 84 SS Williamson deposed that it would not be appropriate to throw an article directly at a dog with the intent of hurting it. He said that depending on the size of the dog, it would be inappropriate and cruel to throw a 30cm rubber hose, at full force, directly at an 11 month old German Shepherd. He said that throwing an article at a wire fence is a common practice and sometimes the dog is hit. However, he was not aware of any dog having been injured in these circumstances. He agreed it would be necessary to throw a rubber hose reasonably hard at the fence to obtain the required level of noise to distract the dog. 85 Sgt Mayer said that it was his practice to sometimes throw a soft article at a dog, such as a rubber hose or tennis ball to get its attention. It was the same principle as throwing a metal chain which sometimes hits the dog. However, if the dog is running up and down the fence, hitting it is sometimes unavoidable. He could not see how this was misconduct and had never seen this practice injure a dog. He believed that no one had ever been disciplined for such a practice. 86 In cross-examination, Sgt Mayer said that while he was not a witness to the incident, it may not be inappropriate to throw an article at a dog with the aim of hitting it. Circumstances might be if the dog was fighting, intending to bite someone, running in front of a car or in order to save the dog from injury. He said there are many variables. 87 Insp Hinds said that he had relied on the interviews with Ms Sayhoun and Ms Ralph in which they said they had been in the car park when they observed the incident. He said that while SC Gilmour could not recall the incident at his interview, he had said he would have thrown the hose at the fence. Insp Hinds believed that if the dog was moving, one would have had to have taken particular aim to hit it. He agreed that neither Ms Sayhoun nor Ms Ralph had said the dog had stopped moving. 88 Insp Hinds conceded that he could not say what the accepted practice was, as he didn't have much to do with training. His has been a supervisory role. He agreed that the first reaction of a dog being startled could be to yelp. However, he didn't believe this was the case here. He agreed that if SC Gilmour threw the article at the fence and accidentally hit the dog, it wouldn't amount to misconduct. He believed the issue was whether SC Gilmour had intended to hit the dog. 89 Ms Sayhoun did not mention this incident in her statement, but did outline it to Insp Hinds in her interview. Ms Sayhoun said she remembered seeing SC Gilmour from the car park, throw a very thick piece of hose at the dog, from three to five metres away, to stop it running up and down the fence and not to get its attention. The hose hit the dog on the back leg and it screamed and yelped and ran away to hide. 90 In evidence in chief, Ms Sayhoun identified a similar piece of hosing to that which was thrown and demonstrated a full shoulder throw as what she had observed. In cross-examination, she denied exaggerating her claims. Ms Sayhoun had described Roscoe as the 'number one' in the litter. However, in cross-examination, she agreed there are no such rankings of the dogs. However, she denied that she had mentioned Roscoe as being 'number one' in order to exaggerate SC Gilmour's conduct. She said that SC Gilmour had appeared to be annoyed and angry that the dog would not respond. She denied that he was 10 metres away, and claimed he was three to five metres from the dog when he threw the hose. She believed SC Gilmour deemed the dog as unsuitable as a police dog. 91 In re-examination, Ms Sayhoun claimed that she had reported this incident to Mr Pearse, but she had never been informed if any action had been taken about it. 92 Ms Ralph said that she had also told Insp Hinds of this incident. She said she had seen SC Gilmour throw a rubber pipe at the dog and hit it in the hind leg. She said that the dog was subsequently sacked from the program. The Tyson Incident 93 SC Gilmour said that between January 2006 and late April 2006, he was attending a course and on leave. When he returned he found that the dog Tyson, which had been brought to the Dog Unit by a member of the public for assessment, had not been assessed after several weeks at the Unit. It was usual for such an assessment to be conducted within 48 hours of admission. SC Gilmour said that from his observations of the dog in the kennels, he considered it inappropriate for assessment. He and Insp Hinds had disagreed about the matter. SC Gilmour said that Insp Hinds had then instructed him to carry out the standard assessment, including the gun steadiness test. (In the evidence this test is otherwise described as the gun sensitivity test, the gun test or noise sensitivity test. For consistency, I shall refer to it as the 'gun steadiness test'.) He did so in the company of SC Martin on 26 April 2006. SC Gilmour said he had conducted the gun steadiness test entirely consistent with how he had been trained, how he had conducted the test over 10 years and in accordance with the appropriate protocols for such a test. He had prepared a report of the assessment which read: On 28 April 2006 I assessed T.D TYSON at the Menai Dog Unit Training Centre. Whilst carrying out this assessment T.D TYSON demonstrated poor temperament traits, showing unsolicited aggression towards me as I approached his kennel. When I opened his kennel, TYSON retreated to the back of the kennel with his tail between his legs. It then took me some time to encourage TYSON out to me and place a lead on him. Once in the compound TYSON was left to run free for a while before I started to assess his retrieve. First his attention was sought and then a ball was thrown, TYSON ran out to the ball then left it. The ball was thrown again and again TYSON ran to the ball. TYSON was encouraged to pick the ball up which he did but would not return. He then spat the ball out and ran to the fence to investigate a dog in an adjacent compound. I then produced a tug and tried to encourage a play from TYSON with the dog showing no interest. A gun test was carried out TYSON ran away with his tail between his legs and his hackles fully displayed. Due to the dog's poor temperament lack of drive and gun shyness I believe this dog to be unsuitable to be trained as a Police Dog. 94 In cross-examination, SC Gilmour acknowledged that Tyson was a nine month old German Shepherd being assessed as a general duties dog. He agreed that both SS Williamson and Insp Hinds had a different view to him as to whether the dog should be assessed. SC Gilmour had had a verbal disagreement with Insp Hinds. He believed that there was no point assessing the dog because it was a 'fear biter' (a dog which backs itself into a position where it cannot get away and bites under fear of attack. They are deemed unsuitable for use as police dogs). SC Gilmour said he had come to this view after observing the dog in the kennels. It was afraid of tense situations. 95 SC Gilmour said that part of the gun steadiness test is to throw a toy towards the dog to distract it and then fire a blank shot from a gun at a distance of 20 to 30 metres. On this occasion, when Tyson was released into the compound, he had run around the compound. SC Gilmour denied approaching Tyson and firing the gun directly at him from about 10 metres away. Tyson had not tried to scale the fence, but he had displayed a fear response (hackles up and tail between his legs). SC Gilmour denied turning and walking back and saying to Ms Sayhoun, 'See I told you the dog was crap'. 96 In re-examination, SC Gilmour said that he had conducted the gun steadiness test on Tyson because it was part of the standard assessment criteria. He said that the distance of about 20 metres comes from the dog's final assessment where a 'chase and detain' component is employed. This involves an 'offender' firing two shots and then fleeing and the dog is sent to chase the offender. In his reply statement, SC Gilmour said that different police dog units around the world do this testing at different ages and at varying distances. He cited the German Shepherd Dog Council of Australia which requires a gun test at '12 paces'. 97 Mr Pearse gave evidence that it would not be inappropriate to fire a gun during a gun steadiness test at a distance of 10 metres. Mr Pearse agreed that there may be circumstances where such a test would be inappropriate if the dog was fearful. He believed that the gun steadiness test had been performed in the same way since 1987. 98 AS Wright gave evidence that whilst he was not present during the incident, he had seen SC Gilmour carry out a number of gun steadiness tests over the years and never had any concern with how he carried them out. He recalled two specific instances; one where the dog had shown no adverse reaction and another where the distance was 20 to 30 metres and the dog had failed the test. In cross-examination, AS Wright said he would firstly allow a dog to settle in the compound and throw a toy to distract the dog and then fire the gun from around 20 metres. He didn't necessarily agree that it would be inappropriate to fire the gun from 10 metres, although under the new guidelines it would be inappropriate. He agreed that if a dog was already exhibiting fear, it would be found to be unsuitable before a gun steadiness test. He further agreed that it would be inappropriate, if a dog was exhibiting signs of fear, to gun test by firing the gun directly at it from a distance of five to 10 metres. In questions from the Bench, AS Wright said that, as a result of this incident, written guidelines had now been developed and introduced to provide a step by step approach to gun testing in booklet form. 99 SS Williamson had conducted gun steadiness tests and agreed that there was no standard procedure at the time. Firing the gun at 20 metres was acceptable practice. He agreed that if it was blatantly obvious that a dog was exhibiting fear in every facet, there would be no need to continue with a gun steadiness test. However, it would depend on knowing what was causing the fear - the person, the environment or just a generally poorly socialised dog. He would probably not carry out such a test if the dog in the kennel had its hackles up and ran away and hid. In re-examination, SS Williamson said that all dogs have an element of fear, but it is a question of what causes the fear and how the dog controls it. A 'fear biter' is not capable of such control and would bite because it feared for its life. He believed SC Gilmour had the skills and experience to recognise these characteristics in a dog. 100 Sgt Mayer said there had been no fixed practice of firing the gun from 30 metres. It was typically 20 to 30 metres. It may be appropriate to settle down a fearful dog and then throw a toy to get its attention. A distance of 10 metres may not be too close; however, it may be, if the dog was demonstrating fear of its environment and running away with its tail between its legs. Sgt Mayer said he could not say if it was inappropriate to carry out a gun test on a fearful dog. It may not be necessary, but it may not be a problem if the dog is not tethered, as it would run anyway. 101 Insp Hinds attached to his statement the Dog Unit's new guidelines for assessing noise sensitivities. These are: Prior to acquiring the dog: § Where dogs are offered for assessment questions are to be asked of the owner pertinent to the dog's previous reactions have been to noise of different types; fireworks, thunder, other loud noises. § A signed authority will be obtained from the breeder/donator outlining their understanding of procedures for noise sensitivity assessment. Procedures: § a 22 calibre blank fire gun to be used. § The assessment to be conducted in a secure area. § The dog will be taken away from the Menai complex. § Assessment to be conducted toward the end of the assessment period (2 weeks) to allow the dog to be more settled. § The dog will placed in a favourable drive (chasing an article or engaging in play). § The dog will be no less than 70 metres from the noise and one shot fired. If no reaction to this a second shot fired at no less than 50 metres. § If at 70 metres the dog has a significant adverse reaction the dog will be removed from the area and no further assessment will take place. § If the dog shows minor behavioural changes at 70 metres, in that it is distracted from its original game, it will be re focussed and a 2nd shot fired at the same distance. If the dog shows concern or moves away it will be removed from the area. § A dog that shows apprehension to its surroundings will not be assessed for noise sensitivity. § 50 metres is the minimum distance an assessment dog will be exposed to noise of this type. 102 In cross-examination, Insp Hinds agreed that it was a waste of time to assess a dog if it was a 'fear biter'. He accepted that he had been told by SC Gilmour of this before the gun steadiness test. At the time, Insp Hinds had not known Tyson had been at the Unit for some time and he had told SC Gilmour to put it through the normal tests. He wanted to give the dog a chance and, if it was deemed unsuitable, he would have had no problem. 103 Insp Hinds acknowledged that there was no written practice as to the gun steadiness test. He said that the distance of between 20 to 30 metres was subjective and that he had no knowledge of whether 10 to 15 metres was considered acceptable. Insp Hinds denied his reference to 30 metres being the accepted distance, was an exaggeration designed to make the Tyson allegation appear worse than otherwise was the case. SC Gilmour strongly disputed that 30 metres was the standard practice. He said the test can still be carried out without the chase and retrieve exercise. Mr Pearse said that in his 20 years experience, he had gun tested dogs between 10 to 30 metres. 104 Ms Sayhoun did not refer to this incident in her statement, but did so in her interview with Insp Hinds. She said that Tyson was a young dog, which was very fearful. SC Gilmour wouldn't assess it because he believed it was a 'fear biter'. SS Williamson had also felt it needed time to settle down. Ms Sayhoun said she had a clear view of the incident from the foyer area of the kennel complex. SC Gilmour took the dog into the main compound, the dog ran away from him to the far corner. It was obviously petrified. She said that SC Gilmour did not throw a toy to attract its attention and was about 10 metres from the dog when he fired the gun. SC Gilmour had walked towards the dog and at about the centre of the compound he had fired the gun directly at it. The dog had nearly scaled the fence in fear and as he walked away he said something like, 'he proved the dog was crap'. 105 Ms Sayhoun denied exaggerating the allegation by suggesting that Tyson had only been at the Unit for one week, when it was actually three weeks. She denied SC Gilmour had a toy with him when he conducted the assessment on Tyson, although both SC Gilmour and Ms Ralph said that he did. Ms Sayhoun again denied that she was exaggerating her claim in order to put SC Gilmour in a worst light. She agreed that the gun steadiness test is designed to assess whether a dog is distressed by the gun shots. Ms Sayhoun gave evidence of another incident involving a dog 'Matrix' in which she said a fully grown police dog had been punched by SC Gilmour. She denied this claim was nonsense. SC Gilmour denied ever punching a dog. 106 Ms Ralph said she had observed this incident and could see that the dog was already fearful of SC Gilmour and had run away from him. She didn't believe it was appropriate to do a gun steadiness test in these circumstances, but didn't consider it her place to tell SC Gilmour, or anyone else. In cross-examination, Ms Ralph agreed that she had not told Insp Hinds that Tyson was already fearful. 107 In his reply statement, SC Gilmour said he never conducted gun tests two metres from a young dog (as Ms Sayhoun had told Insp Hinds), as there would obviously be no point because the dog would usually react adversely. SC Gilmour said that Tyson wasn't showing signs of fear in the compound and he was not 10 metres from him when he fired. Character References 108 Mr Pearse was a member of the New South Wales Police Force for 25 years until his medical discharge from the Dog Unit on 5 September 2006. He retired with the rank of Sergeant Year 9 on 15 July 2008. In 1987, Mr Pearse commenced training with the Dog Unit after five years of general and highway patrol duties. He was an accredited Operational Police Dog Handler and prior to his discharge, he was a Specialist Dog Trainer and Training Manager. 109 Mr Pearse described SC Gilmour as 'a good friend made through work and remains so'. He has known him since 1992 and in 1998 Mr Pearse recommended SC Gilmour's accreditation as a Novice Operational Police Dog Handler. Mr Pearse had worked indirectly, and directly, with him and as his supervisor between 2002 to 2006. As a senior trainer, SC Gilmour would run training courses, supply reports and discuss progression of teams with him. Mr Pearse worked closely with SC Gilmour and described him as having a high professional work ethic and a total devotion to Police dog training, which he expected others to follow. Mr Pearse commented that this expectation could be perceived as abruptness, with a hint of arrogance. On occasion, Mr Pearse had to speak to him about his people skills. However, he said he had never had an occasion to discipline him over the handling of dogs or his training methods. 110 Mr Pearse said that SC Gilmour had always displayed an eagerness and desire to advance his training knowledge. He had developed various training methods and was instrumental in establishing the Unit's puppy breeding program. At one stage, he cared for two litters of 12 puppies, at his home, without additional remuneration. 111 Mr Pearse believed SC Gilmour displayed a high professional standard, was firm and fair in decision making and had a wealth of police dog knowledge. He described him as, if not the best, then one of the best Police Dog Trainers he had come across. Mr Pearse had provided two supportive reports of him in January 2008 in response to the s 173 Show Cause Notice. 112 In further evidence in chief, Mr Pearse was asked about how he had handled employee's grievances when he was a supervisor. He said he would usually make a notation in the Duty Book after speaking to the people concerned. Mr Pearse was asked about three particular entries in his duty book (2 September 2005 and 28 August 2005) concerning a complaint from Ms Sayhoun about SC Gilmour's demeanour and his lack of communication skills. Another entry (20 October 2004) related to issues raised by the kennel staff over clashes between staff and a fourth entry on 20 September 2005, concerned the failed trialling of a team leader for the kennel attendants in which Ms Sayhoun had been in dispute with another attendant. 113 In cross-examination, Mr Pearse agreed that around September 2006, the Dog Unit was undergoing a substantial restructure. At that time, SC Gilmour was under his supervision as a Puppy Development Officer, in an Acting Sergeant's position. Mr Pearse said that, at the time, he had not known of the allegation concerning SC Gilmour taping colleagues' conversations; but he would have been concerned about it as his supervisor. 114 Mr Pearse said that the complaints of the kennel staff had been that SC Gilmour was rude and dismissive, was arrogant and abrupt with them and that he thought he always knew what was best. He also agreed that SC Gilmour had referred to the kennel attendants as 'kennel maids'. Mr Pearse believed that this expression was still being used after 20 years, despite its derogatory meaning. He conceded that he had used the expression himself. He disagreed it was derogatory, but he had also referred to them as 'girls'. However, Mr Pearse said that complaints about what they were called, were never brought to him for attention. Rather, Ms Sayhoun had had issues as the team leader, because no one would listen to her and her position was not taken seriously. 115 Mr Pearse said he had been surprised that Ms Sayhoun and Ms Ralph did not go over his head to the Inspector or their Commander, if they had not been satisfied by any outcomes he had attended to. Indeed, they had their own chain of supervision to Ms Diane Flecknoe, Executive Officer of the Complaints Management Team; although she had mainly dealt with administrative matters. Mr Pearse could not recall if he had ever told Ms Sayhoun or Ms Ralph that they could see the Inspector or the Commander if they were unhappy with how he had dealt with their complaints. On the other hand, they had never told him they were unhappy. 116 Mr Pearse said that he didn't believe Insp Hind's investigation was '100% independent' because of the unpleasant history between SC Gilmour and Insp Hinds. He had observed their relationship and described it as merely tolerating one another. 117 AS Wright commenced employment with the New South Wales Police Force on 25 October 1992. In January 1996, he transferred from Ultimo to the South Region Dog Squad and completed training as a General Purpose Handler. He has worked as an Operational Trainer and Training Facilitator and in January 2008 took on the role of Dog Development Officer, holding the rank of Acting Sergeant. His duties include assessing dogs for acquisitions, ongoing assessment and development of puppies and dogs, providing advice and guidance to handlers and puppy raisers and participation in breeding / acquisitions and disposal meetings and training, (the same role previously held by SC Gilmour). 118 AS Wright first came to know SC Gilmour when he was 'buddied' up with him in 1996 and had received training under his instruction. In October 2002, he re-teamed with SC Gilmour with his current operational dog, 'Hass'. AS Wright said he respected SC Gilmour's knowledge and enthusiasm for working with dogs and regarded him as one of his three mentors during his training. Over the years, AS Wright had formed his own opinions on dog training and handling and said he didn't always see 'eye to eye' with SC Gilmour. They would have heated discussions over training, but would always move on and agree to disagree. 119 AS Wright acknowledged that some staff had found SC Gilmour difficult to work with and some staff had disliked him intensely. While his personality would often lead to conflict, AS Wright said that he wasn't the only one responsible, and nothing has changed since he had left the Dog Unit. AS Wright acknowledged that SC Gilmour could be abrasive. However, he was a very committed trainer and very hard worker. He had whelped litters at home and he had never seen him treat dogs cruelly. AS Wright said he would have no difficulty working with SC Gilmour if he was returned to the Dog Unit, even though he accepted that it was possible he would be displaced as a result. 120 In further cross-examination, AS Wright agreed that it would be inappropriate for witnesses in a proceeding to discuss their evidence or intimidate a person who made a complaint which led to the proceedings. He was then asked about a meeting he had had with SS Williamson and his wife SC Kathy Williamson in front of Ms Sayhoun on 9 October 2008. He said he had been sitting in his office, in close proximity to Ms Sayhoun who he had worked closely with for over 12 months. Acting Senior Sergeant Irons ('SS Irons'), who had a close friendship with Ms Sayhoun, walked in and directed comments to him in relation to the case and his evidence. He said the comment was words to the effect of 'you just should be very careful when you give evidence in this matter'. He had responded by saying 'I don't have to be careful of anything because I intend to get in the witness box and tell the truth'. While he had found the comments intimidatory he, regrettably, had acted in a defensive manner. AS Wright said there then followed a discussion in which SS Irons and Ms Sayhoun were active participants. He said that there was no discussion between himself and SS Williamson and his wife. In fact, he said that he had felt intimidated and had wished the incident hadn't occurred. As a result, AS Wright was later called to a meeting with Insp Condon. He now acknowledged that his reaction was inappropriate, but he insisted he had not initiated the discussion and had merely reacted defensively. He disagreed that he had intimidated Ms Sayhoun and said that they still 'get on fine'. He queried why certain people would be concerned about his evidence. 121 SS Williamson commenced employment with the New South Wales Police Force on 26 April 1993. After performing general duties at Campbelltown and Bankstown he was transferred to the Georges River Dog Unit in 1998. He has completed two Novice Dog courses, two re-team courses, a tactical dog course, a critical incident course in Victoria and represented the Dog Unit in a trials experiment in Queensland. He has performed the role of Support Manager, Training Manager, Police Dog Development Officer and Operational Trainer. He is currently the Dog Unit's Training Manager. 122 SS Williamson had worked with SC Gilmour since 1997 and was trained by him in 1998 over a 16 week period. He said he respected SC Gilmour for his mentoring and assistance and had worked with him on dog assessments, puppy development training needs and methods for assessing potential dogs for the Unit. SC Gilmour had provided written material to him on developmental stages, temperament testing, procedural and socialisation exercises for puppies. 123 SS Williamson had been present on a number of occasions when SC Gilmour had performed assessments on police dogs, assessment dogs and detection dogs. However, he said he was not present at any of the incidents subject of these proceedings and he preferred not to comment on the opinions of others. Nevertheless, SS Williamson said he never had cause to question SC Gilmour's integrity of practice regarding dog assessments and training. SC Gilmour had expected a high standard of performance from a dog, but was sometimes reluctant to sack a dog he had trained, if it was not up to the required standard. 124 SS Williamson said that SC Gilmour 'could be a cantankerous old bloke from time to time', but didn't consider him difficult to supervise. He believed that he 'wore his heart on his sleeve' and was passionate about what he did. SS Williamson said he never saw him act unprofessionally and had never seen him mistreat or intentionally cause harm or discomfort to a dog. 125 In cross-examination, SS Williamson agreed that the Dog Unit had undergone a substantial restructure since 2005 and he had completed some additional courses and attained the rank of Senior Sergeant. He described SC Gilmour as a friend, both personally and professionally. SS Williamson said he was unaware that SC Gilmour had been transferred out of the Dog Unit in 2006 as a result of allegations that he had been tape recording conversations and making inappropriate inquiries. 126 Sgt Mayer joined the New South Wales Police Force in 1981 and has held the rank of Sergeant since 2001. Since 1989 he has been attached to the Dog Unit and is currently Supervisor / Team Leader. Sgt Mayer had worked with SC Gilmour since 1990 and was his trainer and supervisor. Sgt Mayer believed that SC Gilmour had always acted professionally and despite 'a bit of a gruff personality, from time to time', his work with dogs was always professional. Sgt Mayer had no difficulty in recommending SC Gilmour to work with dogs and puppies in the future and would welcome the opportunity to work with him again in the Dog Unit. 127 Sgt Mayer did not consider the term 'kennel maids' to be derogatory and it was not meant to be. It had been used for many years and may have been the actual title when the position was created. No one had ever raised with him that the term was derogatory. 128 In cross-examination, Sgt Mayer said he didn't know that SC Gilmour's transfer out of the Dog Unit in 2006 arose as a result of allegations of taping conversations and making inappropriate inquiries. SC Gilmour's further evidence 129 SC Gilmour gave evidence that throughout his career in the Dog Unit he had strived for self improvement by studying the work of other police dog units in Australia, studying books and videos and attending dog training seminars. He believes that he has a solid understanding of different dog training philosophies and techniques and a sound understanding of dog behaviours. 130 SC Gilmour said that he had developed and helped refine a number of standard training procedures and protocols at the Unit which had all been assessed and approved by his supervisors. He had developed the in house breeding program and the puppy training program and he believed he had trained and developed more dogs and novice police dog trainers than any other trainer in the history of the Dog Unit. 131 Until these events, he had never, in 18 years at the Unit, been the subject of any complaint relating to his treatment of dogs or his performance as a trainer. There had been only two unrelated disciplinary matters during this time: one involving the microchipping of dogs, where no adverse finding had been made about him and another, concerning him being more polite to two kennel staff. He was the longest serving member of the Dog Unit and had never been placed on a remedial performance program. 132 SC Gilmour said that at the time of the allegations, a number of promotional sergeant positions had been ratified and as he had acted as sergeant for five years, he felt he had been robbed of a chance for one of these positions because of his transfer from the Unit. 133 SC Gilmour said he had joined the Police Force to become a Police Dog Trainer and for 18 years it had been his life and passion. He now found working at Lake Illawarra LAC as 'mind-numbing' and he felt he had 'been put out to pasture'. He described himself as moody, irritable and reserved at work. He has had many disagreements with his wife about the matter, (she telling him to move on and forget about the Dog Unit). He has found it hard to get motivated and has felt anger, anxiety and frustration that the matter has taken so long to be finalised. He has lost contact with his old networks and is drinking more than he used to. He had loved his work, and feels that he has not only lost his career path, but that the allegations of deliberately mistreating a dog, are hurtful and damaging. Police Force's further evidence and evidence in reply 134 Insp Hinds joined the New South Wales Police Force on 29 June 1984. His police career has largely been with the Dog Unit and he is currently Operations Manager for general purpose dogs and the development of general purpose and tactical dog handlers. The Dog Unit's authorisation is 40 general purpose handlers; although there are presently only 30. Insp Hinds' main duties are administrative, strategy and planning. He has performed operational training and supervised the training of tactical dog teams between 1999 and 2002. 135 Insp Hinds has known SC Gilmour since 1998. He understood that SC Gilmour's role primarily involved training, although he was aware of his involvement in the Unit's breeding program. Insp Hinds did not agree that he and SC Gilmour just 'didn't get on'; rather, they had different opinions on dog training. Insp Hinds said he preferred dogs with less 'prey drive' and more defence related traits and SC Gilmour preferred dogs with an extremely high 'prey drive'. Insp Hinds detailed two disagreements he had had with SC Gilmour in early 2002 and 2003 which he believed were significant. However, he didn't consider his judgment was, in any way, affected by these incidents. (SC Gilmour had a different recollection of these incidents. However, I do not consider it necessary, for the purposes of this decision, to detail these differences.) He accepted that there were other times when they had had heated discussions. While SC Gilmour believed he was biased against him, Insp Hinds said he had conducted numerous internal investigations over a six year period, involving such allegations as poor customer service, sexual harassment and malicious wounding. He believed that he had always conducted investigations according to the Police Force's guidelines and had never allowed his personal beliefs or feelings to affect his investigations. He believed, that given his experience, he was the most appropriate person to conduct the investigation. 136 Insp Hind's findings and recommendations of 10 January 2007 were: 1. Cruelty with regard to training PD Jerry. 2. Cruelty with regard to training PD Jerry. 3. Cruelty with regard to training PD Jett. 4. Cruelty with regard to training PD Hooch. 5. Possess prohibited article (an electric collar). 6. Possess prohibited article (a pronged collar). 7. Inappropriate conduct, using overly harsh training methods when training PD Amber. 8. Inappropriate conduct, allowing puppies to fall from a raised plank in an agility area . 9. Inappropriate conduct, throwing an article at a pup, Roscoe, hitting it causing it pain . 10. Inappropriate conduct, firing a gun in close proximity to two pups, Havoc and Leida. 11. Inappropriate conduct, firing a gun in close proximity to a pup Tyson. 12. Inappropriate conduct, causing stress to a pup Storm when conducting gun tests in a compound. 13. Cruelty with regard to handling a Police Dog, Matrix, in the rear of a car at the Dog Unit. Of these issues matters, 1,2,3,4,5,6,7,10,12 and 13 are not sustained. Issues 8,9 and 11 (highlighted above) are sustained. In providing my recommendations I considered a number of issues, which related to an identified pattern of behaviour, identified risks to NSWP and the Dog Unit with you remaining in a Dog Training role. I have recommended that you not have interaction with pups, assessment dogs or unsupervised training of handlers. This in effect means that in my opinion you should be moved to other duties, where you will not have the above mentioned interaction. 137 In cross-examination, Insp Hinds agreed that his findings were not based on any established standards, but were based solely on his own view of the practices as identified in the allegations. He denied that he had less than an objective standard when assessing SC Gilmour's conduct. He believed he had been very fair. 138 Ms Sayhoun joined the Dog Unit as a Kennel Attendant in January 2001 after working as a microbiologist. She is now the Puppy Raising Co-ordinator and the supervisor of all the kennel attendants. A kennel attendant's role includes the overall maintenance of the health and welfare of the dogs at the Unit. 139 Ms Sayhoun said that SC Gilmour had been rude and abrupt with the kennel attendants. He had called them 'kennel maids' in a derogatory way in order to embarrass and humiliate them. She had raised this matter on several occasions with Mr Pearse, but he had done nothing about it. Ms Sayhoun said that SC Gilmour had constantly undermined and degraded the kennel attendants and wouldn't recognise their qualifications. He had made it known that only police officers knew how to look after police dogs. Ms Sayhoun said that while SC Gilmour had never shouted or swore to their face, he would do so under his breath or by muttering and shaking his head. He would make petty criticisms and always look for things that were wrong. She had the impression that everyone accepted SC Gilmour had his own way of doing things. 140 Ms Sayhoun said that the role of the attendants has been upgraded over the years. They now assist in the puppy breeding and raising programs and the problems she experienced when she first commenced no longer exist. This was because the attendants' role is now recognised by uniformed officers. 141 In cross-examination, Ms Sayhoun denied that she had taken over SC Gilmour's position when he was transferred out of the Unit. She could not recall how or where she had found Exhibit MS2 - the first handwritten assessment made by SC Gilmour of the 49 day test of the puppies. She accepted that various assessments were different. 142 Ms Sayhoun denied in cross-examination, that Mr Pearse had assisted her when she had complained about SC Gilmour's attitude. She couldn't recall if SC Collier had told her and Ms Eckhart that SC Gilmour had been counselled and warned about the way he had spoken to kennel staff. She believed that none of the Unit's senior officers would have taken any complaint of cruelty by the trainers, seriously. Ms Sayhoun acknowledged that she had not complained at the time, but she had spoken to Mr Pearse previously about the Roscoe incident. 143 In further cross-examination, Ms Sayhoun said she didn't like SC Gilmour and wouldn't go to him for assistance. She denied exaggerating her claims of how he had treated her and the other staff. She further denied exaggerating her claims in her interview with Insp Hinds, and in these proceedings, because she didn't like SC Gilmour and she had 'wanted to see the back of him'. In reply 144 SC Gilmour agreed he could be abrupt, but he denied he was rude or ever called a kennel attendant an idiot. He said he ordinarily referred to the kennel attendants as 'kennel girls', although he had used the term 'kennel maids'. He never meant it to be derogatory or embarrassing and no one ever told him it was. 145 Mr Pearse said that at no time had Ms Sayhoun raised issues about SC Gilmour's treatment or training of dogs. Her issues had related to SC Gilmour's manner towards her. He denied that he did nothing about these complaints. He had made SC Gilmour aware that there were different ways of handling individual personalities in the workplace. Mr Pearse expressed surprise that Ms Sayhoun and Ms Ralph had open access to the Inspector and Commander and, if either of them felt a need to raise an issue, or be concerned over his handling of complaints, they could have easily gone to others of the same rank or higher. Mr Pearse added that if anyone had raised a complaint about animal cruelty, it would have been dealt with most seriously. He had had 20 years experience and he knew how puppies reacted. There was no place for unnecessary or inappropriate correctional training at the Unit. 146 Mr Pearse said that Ms Eckhart had raised similar issues to Ms Sayhoun concerning SC Gilmour's manner in speaking to them and she also had issues about how she was treated by the other kennel attendants. He could not recall any particular incident where Ms Eckhart had been upset or had raised issues about SC Gilmour's training or handling of puppies or dogs. 147 Ms Ralph joined the Dog Unit in April 2005 as a Kennel Attendant. Prior to this she had been studying vet nursing. Ms Ralph said that in 2006, when she had taken the dog 'Storm' back to its owner, Ms Boyle, the dog was terrified. 148 Ms Ralph described SC Gilmour as not an overly friendly person. He had told them what to do and was often angry with the kennel attendants. He rarely spoke to them unless it was an order and he was always very abrupt. The kennel attendants were never right. She recalled an argument (denied by SC Gilmour) she and Ms Sayhoun had with him and his response was 'I'm not a warm and fuzzy person so deal with it'. Ms Ralph said that they had not wanted any special treatment, but just wanted to be treated decently. In cross-examination, Ms Ralph agreed that in 2005/06 kennel attendants were not given training as to dog assessments; they had simply observed the trainers conducting the assessment. 149 Supt Middlemiss is the Commander of the Dog Unit. Prior to her appointment to the Unit in September 2005 she was attached to the Professional Standards Command. Shortly after joining the Dog Unit, Supt Middlemiss became aware that the Police Force did not have a sustainable process to acquire dogs and puppies which could be trained as police dogs and there were few standardised practices for dog assessment. It was left to individuals to assess dogs, largely brought from outside, based on the individual's beliefs and assessment methods. That meant that dog handlers and trainers had different views. As a result, there was little respect between colleagues, open criticism of some officers and disgruntlement amongst some employees leading to different factions operating within the Dog Unit. An audit of police dog assets revealed a number of inappropriate practices and records which could not be located. All this led to the development of a Corporate Project, managed by Supt Middlemiss, to research, develop and implement options for acquisition and breeding of puppies and dogs. The project also incorporated the standardisation of training, assessment practices and dog/puppy development. 150 Supt Middlemiss said that in late 2005, she had insisted on documented standardised practices to ensure potential dog recruits were assessed in the same way. This process was developed by SS Williamson, SC Smith and AS Wright with input and consultation with other staff. The process was broadened in 2007 and 2008 to include puppy development. Supt Middlemiss said that as part of the project, the Unit developed new staff structures and roles. In November 2005, the new structure was introduced on a temporary basis, pending final approval. The Training Units were to have four Police positions; Training Manager (Senior Superintendent); two Training Coordinators (Sergeant) and a Dog Development Officer (Sergeant). All officers, including SC Gilmour, were temporarily placed in these positions pending promotion or return to operational policing. 151 Supt Middlemiss said SC Gilmour had minimal input into the Corporate Project. He had provided some documents, but the large proportion of current processes and procedures were based on the work of other staff. Some of his assessment documents had been considered insufficient. 152 Supt Middlemiss said that SC Gilmour was offered the position of Puppy Development Officer, but was not guaranteed a return to a position of Trainer. He had management of the puppies and young dogs and provided training. Attempts at developing a litter of German Shepherds as General Purpose Dogs had limited success. Supt Middlemiss said external dog breeders were reluctant to supply dogs to the Unit, because of problems the breeders had had with the Unit's staff. 153 Also, at this time, the Unit had no agreed standardised, approved and documented procedures for the breeding and raising of puppies, puppy assessments or training. Supt Middlemiss said that a report prepared by SC Gilmour in November 2005 indicated 10 of 15 dogs were unsuitable. A number of the unsuccessful dogs were reassessed as suitable and SC Gilmour had not been happy with this result. 154 It was clear to Supt Middlemiss that each officer assessed a dog based on their own training beliefs or experience. There was no consistent pattern of documented assessment procedures and the training and accreditation procedures were well out of date. Training manuals hadn't been reviewed for many years, lesson plans were non existent and there were no student or facilitation guides or pre-reading course materials. Supt Middlemiss said that it was evident that the training Unit was operating under outdated procedures, processes and systems. 155 Supt Middlemiss recalled that in February 2006, the Unit was urgently seeking a replacement German Shepherd. Ms Lisa Boyle was the only supplier and she had insisted on no involvement from SC Gilmour. Contact had been made by other officers. Supt Middlemiss said that she had spoken to Ms Ralph and SC Inglese who told her of Ms Boyle's complaints that 'Storm' had been returned to her injured. Supt Middlemiss was concerned that an external complaint could lead to adverse publicity and a breakdown in the relationship between dog breeders and law enforcement agencies. She said that as the Unit didn't have its own breeding program, it was critical to maintain a good relationship with breeders. After speaking with Insp Hinds, the then gun steadiness testing practices were suspended. In reply 156 SC Gilmour said that it wasn't entirely correct that, prior to Supt Middlemiss' arrival, there had been no standardised assessments for dogs. He said that prior to the puppy breeding program, the majority of dogs brought to the Unit, were between nine to 18 months old. As assessment criteria were contained in the Novice Police Dog Manual and tests were conducted to assess temperament and the necessary traits required in the dog. They would then undergo a more rigorous assessment over two weeks. SC Gilmour said that when the breeding program was commenced, he had developed a basic temperament assessment for puppies six to seven weeks old. He also developed a series of quarterly assessments using a standard two page assessment. SC Gilmour said he had never been told that the Unit's practices were inappropriate or out of date. 157 As to Ms Boyle's alleged animosity towards him, SC Gilmour said he had never spoken to her or had any communication with her whatsoever. EVIDENCE AS TO PROCEDURE 158 SC Gilmour was interviewed by Insp Hinds about the allegations five months after having been transferred out of the Dog Unit. He said he was not given any information about the content of the interview so that he could check his training records or otherwise prepare his response to the allegations. He said he had found the whole investigation process stressful, frustrating and demoralising. He believed that Insp Hinds was not an appropriate person to conduct the investigation, as they had had many disagreements in the past and it was well known that they simply didn't get on. 159 SC Gilmour said that he made a number of unsuccessful inquiries in 2006 to see where his matter was up to. He had finally received an email from Insp Hinds on 10 January 2007. On 15 February 2007, he wrote to Supt Middlemiss and raised his concerns. He had received no response. He continued to work from Port Kembla and heard nothing more about the matter until 10 January 2008, when he was served the s 173(5) Notice. (I note that it appears he was contacted on 16 August 2007.) 160 SC Gilmour sought assistance from the Association to prepare his response to the Notice and the Association wrote to Supt Middlemiss on 15 January 2008, seeking access to materials relied on by the Police Force in making the s 173 order. Supt Middlemiss replied on 21 January 2008, enclosing various heavily edited documents which made it virtually impossible to properly respond. However, he did do so on 1 February 2008. 161 In cross-examination, SC Gilmour agreed that on 3 August 2006, he had approached Ms Flecknoe about the time frame for dealing with the complaints. He said he had not asked about names and dates. On 4 August, he had approached SS Irons for reports from SC Collier relating to the Police Training Unit and about returning to operational duties. On 7 August he had a meeting with SS Irons and Supt Middlemiss and was advised by them not to attempt to obtain further information while the investigation was continuing. SC Gilmour denied taping a conversation between himself and Acting Sergeant Craig Holt, Operations Co-ordinator ('AS Holt'), Dog Unit, on 7 or 8 August 2006 or with himself and Supt Middlemiss. He denied that AS Holt observed him with a dictaphone, and told him not to use it. He agreed he had a dictaphone, but he was not using it. When asked what he intended to use it for, he had said 'to tape the boss'. He had intended to tape his next meeting with Supt Middlemiss, but had not done so. He denied saying that 'she will never know' or that he had said it was for his personal record because 'the boss lies'. He denied that AS Holt had said it was an offence to record a person without their knowledge. In re-examination, SC Gilmour said that this allegation had been investigated and found to be unsubstantiated. 162 Insp Hinds agreed his investigation had taken from July 2006 to January 2007. He explained that he had not been taken 'off line' to conduct the investigation and he had to consider taking witnesses off roster in an operational unit. He had asked for, and was granted, two extensions of time to finish the investigation, which he did as quickly as he could. 163 Supt Middlemiss outlined her involvement in the disciplinary process. On 7 June 2006, she was advised that a second complaint had been made about SC Gilmour. She received a file note and report from Insp Hinds on 8 and 13 June concerning the complaints of Ms Boyle. The complaints and other documents were provided to the Counter Terrorism and Public Order Management, Complaints Management Team as the Dog Unit had no separate CMT. On 14 June 2006, Supt Middlemiss received a further report from Insp Hinds which was also referred to the CMT. On 28 June 2006, the CMT determined that Ms Boyle's complaint was procedural and that the Unit's actions in reviewing the gun steadiness testing procedures was sufficient. 164 Supt Middlemiss said that when she received another complaint from a police officer, she had decided that the risk of SC Gilmour having unsupervised access to dogs required interim management action, involving removing him from his current duties. On 3 July, Supt Middlemiss informed SC Gilmour, after his return from holidays, that he was to be temporarily removed from his duties. On 2 August, Supt Middlemiss met with SC Gilmour, at his request, and he had asked as to the progress of the complaints. 165 Supt Middlemiss said that on 3 August, Ms Flecknoe had told her that SC Gilmour had been making inquiries about the investigation and she felt uncomfortable about his questions. The next day, Supt Middlemiss spoke with SS Irons who had told her SC Gilmour had been asking about locating and accessing Dog Unit records and files and, if it was possible, to access her (Supt Middlemiss') office. SC Gilmour had also been searching the Unit for other records. 166 On 7 August, Supt Middlemiss met with SC Gilmour and SS Irons. She raised Ms Flecknoe's and SS Irons' concerns and advised him to stop seeking access to information and to speak to her if he required advice or information. That evening another officer complained that SC Gilmour had been recording colleagues' conversations in the workplace. 167 On 9 August, Supt Middlemiss considered that given the gravity of the new allegations, the matter needed to be urgently reviewed and SC Gilmour should not remain at the Unit. She said she was extremely concerned about SC Gilmour's behaviour and activities which were now disrupting the work of other officers. On 14 August, SC Gilmour was informed he was to be temporarily transferred to the Lake Illawarra LAC. 168 Supt Middlemiss said that on 18 August an article appeared in the Daily Telegraph making reference to Ms Boyle's complaints. 169 Supt Middlemiss said that in the following months there were two separate investigations into SC Gilmour's conduct. On 10 January 2007, she had received Insp Hinds' report into the first series of allegations. She believed he had been overly fair to SC Gilmour and had erred on the side of caution by finding matters sustained only if two persons had witnessed the incident. Supt Middlemiss believed that, with her experience, the investigation and findings of Insp Hinds were fair. On 29 January 2007, the CMT considered Insp Hinds' investigation and recommended a Commander's Warning and a three month CMP. Insp Freeman's investigation had not been completed at this point. Supt Middlemiss was concerned with this recommendation, in particular, because it had been considered in isolation of Insp Freeman's investigation. She said 'I wanted an outcome where Kim Gilmour would be transferred out of the Dog Unit'. The CMT agreed to review its recommendation. 170 On 14 February, in response to SC Gilmour's inquiry, Supt Middlemiss advised him that the matters were still to be finalised. As a result of concerns of bias raised by SC Gilmour, a further review was conducted by Insp Jenkins. On 21 March 2007, Insp Freeman completed his investigation and made no adverse finding against SC Gilmour. However, as the investigator, he had been aware of the other matters and he now strongly recommended that SC Gilmour not be returned to the Dog Unit until all matters were finalised. 171 During May 2007, the finalised investigation was referred to the Police Force's IRP by the CMT, as required by the Police Force's complaints process. The notice to the IRP noted the Commander's (Wayne Benson's) comment 'Due to the nature of the allegations action considered are removal from the dog unit'. 172 Supt Middlemiss attended the IRP meeting on 14 August 2007, with the Assistant Commissioner, Professional Standards, Assistant Commissioner from Specialist Field Operations, Human Resources, Director Employee Management and legal representatives. The reviewable action was decided upon. Supt Middlemiss agreed with the recommendation based on SC Gilmour's length of service, lack of remorse, the high level of trust of having animals in direct care and the potential damage to the reputation of the Police Force. She informed him on 16 August 2007, and said he had displayed a very confident and arrogant attitude when she told him of the decision. 173 Supt Middlemiss said the next step was the preparation of the Show Cause Notice which could not be finalised until a transfer location could be identified. This was finally located in November 2007 at the Liverpool LAC. Supt Middlemiss met with SC Gilmour on 10 January 2008, and served him with the Show Cause Notice. Supt Middlemiss said that contrary to SC Gilmour's suggestions, there was contact with him before 10 January 2008. The CMT provided him with information about the status of the review and the outcome and she had emailed him in the months of February, August, November and December 2007. 174 In cross-examination, Supt Middlemiss agreed that she does not have any training or experience in training and assessing police dogs. She was shown the discipline policy which defined misconduct in broad terms. Supt Middlemiss said she had relied on Insp Hinds' investigation for the technical aspects of the inquiry. She agreed that she had not spoken to SC Martin, Senior Constable Colleen Bolton, Dog Trainer ('SC Bolton'), SC Collier, Mr Pearse or SS Williamson and had relied on what was reflected in their Duty Books. Supt Middlemiss agreed that none of the duty books of the days in question record an assessment of dogs. (SC Gilmour said it was not his, or any of the trainers' practice, to record individual assessments in their duty books.) 175 In re-examination, Supt Middlemiss said she had also used her own commonsense and as a dog owner herself, and concluded it would be inappropriate and cruel to drop puppies from a height of 160cms, to throw a rubber pipe deliberately at a dog or to fire a gun at a dog from a distance of 10 metres. In reply 176 SC Gilmour acknowledged that he did speak with Ms Flecknoe, but only to ask her about a time frame for the investigation. SC Gilmour denied asking SS Irons for administrative records and files that may assist with the complaint's investigation. SC Gilmour said he had not been informed by the CMT that there was to be a second review of the investigation. He said he could not recall the emails from Supt Middlemiss in February, August, November and December 2007. EVIDENCE AS TO AVAILABLE POSITIONS 177 Supt Middlemiss provided a second statement in which she gave further details of the Corporate Project to restructure the Dog Unit in 2005 and which was completed in March 2007. She gave evidence of the resultant restructure and the availability of positions should SC Gilmour be successful with this application. 178 The Project had been initiated due to ongoing industrial unrest, low morale and significant internal problems. Supt Middlemiss had responsibility for the Project, which was managed by an external Superintendent, Mark Wright. 179 The project issues were confined to seven specific projects; each of which had an allocated police officer from the Dog Unit. The seven were: 1. home kennelling of detection dogs; 2. business processes; 3. training and accreditation of police dogs; 4. structure; 5. best practice / research; 6. equipment / uniform / vehicles; and 7. breeding and acquisition of dogs. 180 There was extensive research, bench marking, consultation and feedback throughout the process to arrive at a new structure. Supt Middlemiss said the Unit had: 1. developed a replacement structure including required funding; 2. consulted, developed and rewrote Position Descriptions for all positions within the Dog Unit; 3. reviewed and amended internal human resource records to reflect the correct positions within the Dog Unit; 4. obtained approval for 10 Leading Senior Constable positions for the Dog Unit; 5. reviewed the recruitment and selection processes for Police Dog Handlers; 6. undertook job analysis questionnaires in order to obtain support for an upgraded structure; 7. obtained Commissioner Executive Team approval for an upgraded Dog Unit structure; 8. obtained approval for an upgraded structure for the Dog Unit which saw the following changes. (i) Commander position - upgraded from Chief Inspector to Superintendent; (ii) Training Managers position - upgraded from Sergeant to Senior Sergeant; and (iii) Unit Coordinator positions upgraded from Sergeant to Senior Sergeant; (iv) Kennel Attendant positions - increased to 5 positions and upgraded from Clerical Assistant 1 to Clerk 2/3; (v) creation of an additional Inspector's position to create a position of Detection Operations manager; (vi) upgraded Senior Sergeant position to the rank of Inspector to create a position of Support Manager; (vii) reviewed functions for one Inspector position with the role and functions amended to create a position of General Purpose Operations Manager at the rank of Inspector; (viii) reviewed functions for five (5) Sergeant positions with the role and functions amended to create two positions of Detection Dog Team Leader; (ix) reviewed and upgraded functions for four (4) Constable positions with the role and functions amended to create four positions of Detection Training Coordinator, General Purpose Training Coordinator, Dog Development Officer (the role that Kim Gilmour had been performing) and Intelligence Supervisor such that all positions upgraded from Constable to Sergeant; (x) created a new position at the grade of Clerk 5/6 - Puppy Raiser Coordinator (the role performed by Mechelle Sahyoun). 181 Supt Middlemiss said that these changes had affected a number of employees who had the option to relieve in upgraded positions with a view to winning promotion to the new upgraded positions. These became temporary overstrength positions in accordance with existing Police Force Guidelines. As a result of the new positions being progressively advertised and filled, not all the original employees were successful. In these circumstances, the officer was required to relocate to another authorised position. As a result of the circumstances of SC Gilmour, he had been in a temporary position of Dog Development Officer classified as a Senior Constable. SC Gilmour would have been able to apply for promotional positions over the last few years, but he had declined to do so. As a result of the position of Dog Development Officer being upgraded to Sergeant she said that he would have to: Participate in the NSW Police Force promotion process and attempt to gain promotion to the level of Sergeant. There is no guarantee that he would have been successful and I expand on what this promotional process involves later in this statement; If successful in his promotion, he could have then applied for the position of Dog Development Officer (or any other of the advertised positions) when it was advertised. There is no guarantee that he would have been successful in those applications; or If he did not apply for promotion, then Mr Gilmour would have had to locate an authorised position within the Dog Unit or elsewhere within NSW Police Force at the level of Senior Constable into which he could transfer. Kim, along with other affected employees occupied temporary over strength positions at the Dog Unit 182 SC Gilmour had now expressed a desire to return to Operational Police Dog Handler duties. Supt Middlemiss said there are two remaining vacant Sergeant positions in the training unit - the Dog Development Officer and General Purpose Training Coordinator. 183 Supt Middlemiss said that AS Wright is completing the three phase promotion and will be offered the Dog Development Officer position next (this) year. The General Purpose Training Coordinator is being temporarily filled by SC Smith. As with AS Wright, SC Smith has successfully completed the three phase promotion process and will be offered the position next (this) year. This overstrength position will then be deleted from the structure. 184 Supt Middlemiss outlined the promotion process for Sergeants which since January 2008 requires the following: · Completion of a computer based pre-qualifying examination; · Completion of a written examination; and · Completion of a 1 week assessment course. 185 Supt Middlemiss said that as of December 2008, there will be no vacant authorised positions in the Training Unit. During 2008, the Dog Unit had the following vacancies advertised: § 4 February 2008 - Constable vacancies (lateral) - Intelligence Officer and; Coordination Officers; § 28 July 2008 - 2 sergeant vacancies for Training Officers; § 15 September 2008 - Constable vacancy (lateral) - Intelligence Practitioner and General Purpose Police Dog Handler positions; and § 15 September 2008 - Promotional vacancies (Sergeant) - 2 Training Officer Positions 50447486 and 50477498. 186 Supt Middlemiss detailed the role of General Purpose Police Dog Handler. A team (handler and dog) will usually work together for five to six years. This position is unsupervised and the officer provides support specialist dog capabilities to various locations. The officer has a police vehicle and commences and concludes his/her shift from home. The Dog Unit does not have constant recruitment to fill positions for Dog Handlers. Training courses are resource and time intensive and conducted on a preferred ratio of four students to two trainers over three months. Long range planning is required and vacant and projected vacancies are carried over to ensure maximum numbers are trained at the same time. 187 Supt Middlemiss said that an expression of interest was advertised on 29 September 2008, for Dog Handlers at the rank of Constable and Senior Constable. Of 18 expressions of interest, nine were subsequently chosen to progress to the 16 week training course commencing in March 2009. It will involve two courses and dogs have been acquired. A Dog Handler must reside in the Sydney Metropolitan Area. This allows better management and utilisation and is also impacted by certain industrial entitlements. Prior to 1998, a separate Dog Squad existed and a small number of officers living outside the Sydney boundaries remain. Their positions will be 'grandfathered'. However, no new recruits can live outside the area (SC Gilmour does). All recruits for positions as a General Purpose Handler must successfully complete a medical, psychological and fitness assessment. For persons over 40, applicants are required to undertake additional stress/physical assessments. 188 Supt Middlemiss said that she had concerns about SC Gilmour's ability to perform operational duties with minimal supervision. Based on her observation of his interactions with other staff, she had further concerns as to his ability to perform in a team environment. She believed that SC Gilmour's return to the Dog Unit would create conflict and cause stress and angst for other employees who had been involved in this matter. She further believed that the reputation and good image of the Unit and the Police Force would be adversely affected by his return. 189 Supt Middlemiss said that she also had grave concerns about SC Gilmour's lack of ability, knowledge and skill to undertake the core functions of a Police Officer. Dog Handlers are not just about being good at working with, or training a dog. As Senior Constables, officers are required to upskill and maintain current policing practices and skills. She believed that SC Gilmour was not interested in upskilling or learning new methods. 190 Nevertheless, Supt Middlemiss said that if the applicant was returned to the Dog Unit, he could perform the role of Unit Co-ordinator, as it does not involve direct contact with dogs and has a high level of supervision. In reply 191 SC Gilmour said that he had performed work within the Dog Unit, including as a General Purpose Dog Handler and trainer for over 18 years. He said that he had not sought to be promoted during the last two years because he said that there was no point applying while a complaint was outstanding. It would result in an automatic failure. 192 SC Gilmour accepted that the training positions were upgraded to Sergeant rank, but he noted that he had been an Acting Sergeant for a number of years prior to Supt Middlemiss coming to the Unit. He sought a return to the Dog Unit at his present rank, SC Level 6, as an Operational General Purpose Dog Handler; a position he had previously held for nine years. He was fully aware of the requirements of the position and believed he could perform the position to a high standard. In fact, he had trained General Purpose Dog Handlers and dogs for 10 years. 193 As to the boundary requirement, SC Gilmour said two other Police Dog Handlers live in his suburb and three live in the neighbouring suburb. (It was accepted that these were long serving officers whose positions had been 'grandfathered'). SC Gilmour said that he was prepared to undertake medical, psychological and physical assessments, but believed his past experience qualified him as suitable to be a handler. 194 As to upskilling, SC Gilmour said that the current training manuals are almost identical to that which applied in 1998. The training of General Purpose Dog Handlers has not significantly changed. SC Gilmour said that he held no animosity toward anyone who participated in this complaint investigation. He had accepted it would be misconduct if he acted inappropriately towards them as a result of their involvement in this matter. In any event, as a General Purpose Dog Handler, he would have little contact with the complainants. 195 SC Gilmour regarded Supt Middlemiss' comments on his lack of ability to perform the work of a police officer as derogatory, unwarranted and untrue. He has had 20 years experience and he had no choice with the work he performed at the Lake Illawarra LAC. Nevertheless, he had participated in a variety of operational tasks. He did not believe he posed any risk. His skills and knowledge would be an asset. He had a strong work ethic and was passionate about the Dog Unit. 196 SC Gilmour said that the Unit Co-ordinator's role did not involve working with dogs. It involved answering the phone, emailing rosters and taking requests for jobs. It would mean daily contact with the complainants causing greater levels of stress and anxiety for himself and other staff. In any event, SC Gilmour believed he had done nothing which constituted misconduct and his return, as Unit Co-ordinator, was further punishment, which he didn't deserve. 197 Sgt Mayer also responded to Supt Middlemiss' statement. He described re-teaming when a dog reaches the end of its working life. The handler will be re-teamed with another dog. He had done so about five times in his career. As to existing practices, Sgt Mayer had recently completed a full training course training a new novice dog. He said that there had been no major changes since 1989, except assessments are now obtained based on various competencies, rather than reaching a standard of proficiency. 198 Sgt Mayer believed that SC Gilmour had the necessary skills to perform the role of an Operational Police Dog Handler. He considered his knowledge and expertise were far above some others in the Unit. Sgt Mayer had worked closely with SC Gilmour since 1990 and said that he would have no difficulty in recommending him working with dogs or puppies and would welcome an opportunity to work with him again, including on his team as an operational handler. He believed he had always been professional and dedicated to his duty and to his dogs. SUBMISSIONS For the Association 199 In providing detailed written submissions, Mr A Howell submitted that SC Gilmour should succeed in these proceedings on either of two bases; firstly, that the s 173 order of 5 April 2008, was beyond power in that the Commissioner failed to adhere to the mandatory procedural steps required by s 173(5) of the Act and otherwise denied SC Gilmour procedural fairness and, secondly, SC Gilmour did not engage in any misconduct. In the alternative, Mr Howell put that the order was harsh and unreasonable. 200 Mr Howell outlined the Commission's approach to a review of an order made under s 173 of the Act, by reference to Hosemans v Commissioner of Police. He submitted that the correct approach is for the Commission to conduct a fresh and independent review with the onus on the Police Force to prove the misconduct alleged against SC Gilmour. The standard of proof being the Briginshaw v Briginshaw ((1938) 60 CLR 336) standard: See Starr v Commissioner of Police. Mr Howell added that the Police Force should not be permitted to rely on matters outside those which were identified in the reasons supporting the order. See Van Huisstede v Commissioner of Police. Mr Howell dealt extensively with the definition of the term 'misconduct' in the professional disciplinary context. He relied on the dictionary definition of misconduct and the Minister's Second Reading Speech of 21 October 1998, when introducing the police legislation. He said misconduct does not mean mere mistakes, errors in judgment, errors in the exercise of discretion, or minor or unintentional carelessness or negligence. By reference to the Court of Appeal decision in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, misconduct means wrongful, improper or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequence of one's acts. See also O'Connor v Palmer (No 1) (1959) 1 FLR 397 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. 201 He said that SC Gilmour was not guilty of the misconduct alleged against him and, even if it was poor performance, he was not given any opportunity to participate in a remedial performance program. In this case, there were no documented standards of police dog training which SC Gilmour could even be accused of departing from. Thus, he could not have known what he was doing was wrong, yet the Police Force wants to discipline him. Mr Howell put that this is not fair, it is unreasonable and inconsistent with the scheme of the Act. He added that, like many fields of professional endeavour, dog trainers have different views about what is, or is not, appropriate in a given set of circumstances. Having a different view cannot equate to misconduct. This was particularly applicable to Allegation Two and Three. Mr Howell submitted that even on the Police Force's case, the Commission would not be satisfied that SC Gilmour had engaged in any misconduct. 202 Mr Howell further submitted that SC Gilmour was subject to a gross denial of procedural fairness. These matters included five general propositions: 1. The decision-maker, Supt Middlemiss had made up her mind as to what outcome she wanted long before the Show Cause Notice was issued. This was a flagrant denial of procedural fairness: See Sutcliffe v General Motors-Holden's Automotive Limited at 161. 2. The IRP had considered the Investigation Report in the absence of any objective standard against which the findings had been made. Insp Hinds acknowledged he had had no experience in dog training and he and SC Gilmour had had previous disagreements. He was therefore unqualified and biased against SC Gilmour. There was no evidence of a pattern of behaviour and SC Gilmour had a previous unblemished career of 18 years in the Dog Unit. 3. The delays between the alleged misconduct and the commencement of the investigation were so great as to make the allegations, old and stale, and subject to the vagaries of memory. 4. The conduct of the investigator was totally flawed. SC Gilmour was not given details of the allegations, until he was interviewed. He was given no opportunity to obtain his training records or properly recollect and prepare for the interview. It was an unreasonable and unfair investigative procedure: See RV and NSW Department of Commerce [2009] NSWIRComm 21 at 138. 5. There was a totally unreasonable and unexplained delay between the commencement of the investigation and the issuance of the Show Cause Notice. SC Gilmour was stressed and anxious about the delay and having been transferred to a 'mind-numbing' position. The delay was inexcusable and outrageous and was itself unreasonable: See Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176; Burrows v Commissioner of Police and Owens v New South Wales Police Service (1998) 87 IR 1. 203 In dealing with Allegation One, Mr Howell submitted that the Commission would reject Ms Sayhoun's evidence as it was both inconsistent with Ms Ralph's and SC Gilmour's recollections and so totally exaggerated as to be unbelievable. At his interview with Insp Hinds, SC Gilmour recalled two occasions of testing the puppies: at 49 days and six months. At the 49 day test, SC Gilmour said he had conducted the test in the demountable shed and this location is corroborated by the only contemporaneous record of the incident. Mr Howell noted that agility tests are not performed on Labradors at any time and Insp Hinds had not obtained the assessment documents. Ms Sayhoun said she had seen the 49 day test being conducted outside and said she saw SC Gilmour encourage the puppies up the ladder and letting them fall. He had then he picked up all nine puppies and dropped them. She could not recall what the other puppies were doing and she and Ms Ralph did not report the incident. SC Gilmour said he would never intentionally hurt a dog and, if Ms Sayhoun was correct, the conduct would be inappropriate and cruel. He had strenuously and consistently denied the allegation. He had been a trainer for over 10 years, an Acting Sergeant and had never been previously disciplined in relation to his handling or training of dogs. 204 In respect to Allegation Two, Mr Howell noted that the inexperienced investigator sought no information from anyone, with the relevant experience, as to the correct or usual procedure for controlling a dog off-lead. It was now common ground that an article would be thrown near the dog to attract its attention and distract it from unwanted behaviour. The article might sometimes hit the dog accidentally, but even Insp Hinds agreed that this would not constitute misconduct. While SC Gilmour had difficulty recalling the incident at the interview, this was perfectly understandable given he had conducted numerous assessments on many dogs and he had not been provided with any details of the allegations beforehand. His training notes recorded the incident, notes a witness was present, but Insp Hinds didn't obtain the records or interview the witness. Moreover, there was nothing in the Show Cause Notice, or indeed anywhere, to indicate what objective standard SC Gilmour was being held to and Insp Hinds admitted he did not have training experience. 205 Mr Howell observed that a second review (by Insp Jenkins) following SC Gilmour's complaints about Insp Hinds' lack of training and bias, noted that it would have been helpful to have interviewed SC Martin. It was grossly unfair for the Police Force not to interview an independent witness, still employed by the Police Force. Significantly, Insp Jenkins conducted the second review premised on the penalty being recommended by the CMT of a Commander's Warning and a three month CMP. Supt Middlemiss had changed the recommendation of the CMT to the transfer out of the Dog Unit and reduction in increment. This was consistent with what outcome she had wanted 12 months earlier. 206 The Police Force had alleged that SC Gilmour intended to hit the dog Roscoe. However, Mr Howell said that this ignored three things; firstly, SS Williamson said that in throwing the article, reasonable force was necessary to obtain a loud noise and, if the dog was accidentally hit, it would not amount to misconduct. Secondly, all of the trainers accepted that, in certain circumstances, such as if the dog was about to bite someone, it was appropriate to hit the dog. The only persons who were interviewed by Insp Hinds were two kennel attendants, who had no training, qualifications or experience in the appropriate methods for training and assessing police dogs. Moreover, they could hardly give evidence of SC Gilmour's intentions. Mr Howell said that because of the way the investigation was conducted, SC Gilmour could not give Insp Hinds any insight into the appropriate training methods. 207 In respect to Allegation Three, Mr Howell described it as nonsense, considering the whole purpose of the gun steadiness test was to establish if the dog was frightened by gun fire. Having conducted a test for this purpose, it could hardly be said to be misconduct. Mr Howell submitted, in addition, that there was no accepted standard practice at the time. SC Gilmour said the test would usually be at a distance of 20 metres. Other trainers did not consider 10 metres, in certain circumstances, to be inappropriate. Mr Howell said that the first time SC Gilmour knew the RSPCA had been involved was in September 2008. SC Gilmour could not have responded to it in his reply to the Show Cause Notice, yet it would seem Supt Middlemiss considered it of relevant concern. 208 Mr Howell said that there didn't appear to be any dispute about the usual practice involved in the gun steadiness test. It was not apparent from the Show Cause Notice what inappropriate conduct SC Gilmour was said to have engaged in, except that the dog was frightened. Even if he had fired the gun at 10 metres in the dog's direction (which was denied) it would still not constitute misconduct. SC Gilmour's account of the incident is consistent with his contemporaneous report he prepared on the day. Ms Sayhoun and Ms Ralph's versions of the incident are so markedly different as to be unreliable. Even if the Commission accepted either one of their versions, it would not amount to misconduct. 209 Mr Howell rejected any suggestion that, in any event, the gun steadiness test shouldn't have been conducted, because the dog had exhibited fear. This view goes against all the weight of evidence to the contrary. It had been a mandatory requirement and Insp Hinds had directed SC Gilmour to do it, despite his protests that it was unnecessary as the dog was a 'fear biter'. 210 Mr Howell submitted that the personal consequences for SC Gilmour of the s 173 order were manifestly disproportionate and grossly unreasonable given his otherwise unblemished career. 211 Mr Howell said the Commission would reject the submissions that the delay in dealing with the matter had not now prejudiced SC Gilmour. He was denied an opportunity to properly defend himself and the investigation was unfair. In tracing the history of the matter, Mr Howell observed that SC Gilmour received the Show Cause Notice 12 months after the investigation concluded and 18 months after it had commenced, without any rational or reasonable explanation. This delay created a very real prejudice for SC Gilmour; four potentially relevant witnesses had all since left the Police Force - Ms Eckhart, SC Collier, SC Inglese and SC Martin. SC Gilmour was transferred out of the Dog Unit and had no access to his training records and has had to endure 'mind-numbing' desk work duties, for two and a half years, while the issue was resolved. 212 As to appropriate relief, Mr Howell submitted that the Commission is required to consider and balance the Police Officer's interests and the public interest, with no one element given priority: See Van Huisstede v Commissioner of Police. The Commission should revoke the order, or in the alternative, revoke the order and make such other order as in the Commission's discretion it considers appropriate. In the case of a disciplinary transfer, the approach would be similar to a reinstatement case and whether it would be impractical to return SC Gilmour to the Dog Unit: See IGA Distribution Pty Ltd v Moses (No 2) (2002) 14 IR 307. SC Gilmour could be returned to an available position as an Operational General Purpose Dog Handler, or in the alternative, to a position of Dog Development Officer, albeit at his current rank and grade (as the current Dog Development Officer position has been upgraded to the rank of Sergeant). SC Gilmour would be willing to undertake the necessary medical and fitness assessments required for either position. For the Police Force 213 Ms K Nomchong of Counsel, firstly submitted that SC Gilmour's transfer to the Lake Illawarra LAC had nothing to do with these proceedings. She then traced the methodology for dealing with s 173 orders by the Commission. Ms Nomchong agreed with Mr Howell that this case was not an appeal, but a full merits review with comprehensive cases advanced by both parties. She noted that SC Gilmour had all relevant materials available to him and had run a full defence, without any impediment. 214 In relation to onus, Ms Nomchong said that this was not a case of criminal prosecution, or even, serious misconduct. There was no third higher standard of proof, but simply the civil standard, on the balance of probabilities: See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. Ms Nomchong submitted that in determining the issues in this case, the Commission would take account of the following: (a) the Applicant's age and experience; (b) evidence as to the Applicant's demeanour, attitude and practices; (c) custom and practice at the Dog Unit in relation to the types on (sic) events the subject of the allegations; (d) the lack of any motivation on the part of the Respondent's witnesses to lie; (e) that the effluxion of time may have impinged the memory of witnesses as to some details of the events but their memory as to the essential features of the misconduct is reliable; (f) prevailing community standards in relation to the appropriate treatment of dogs and cruelty to animals; (g) prevailing community expectations as to the standard of care provided by the Police Service to puppies and dogs in its care and control; (h) the attitude and expectations of Commander Middlemiss, Inspector Hinds and the Police Commissioner in relation to the Applicant's behaviour and in particular, their characterisation of it as misconduct warranting a demotion. 215 Ms Nomchong said that in the Roscoe incident, SC Gilmour had no recollection of the event at all. However, two experienced kennel attendants did. They had known what was appropriate and what was not. They both presented as open and honest witnesses, who made concessions where necessary, and where small discrepancies were obvious, it demonstrated they had not colluded. On the other hand, SC Gilmour offered no reasons why they would lie and they hadn't been the complainants in the first place. It had never been put to either witness, that they were giving false evidence. (Ms Nomchong later conceded that this applied only to the Roscoe and Tyson incidents.) The closest it got was that Ms Sayhoun may have been exaggerating the puppy incident. Ms Nomchong submitted that SC Gilmour's evidence was like 'shifting sands' and the Commission would therefore be cautious in accepting it. 216 In respect to the Roscoe incident, SC Gilmour said he had had no recollection of it, but had earlier told Supt Middlemiss he did have a recollection. He had said SC Martin was present, but yet he couldn't recall the incident. In addition, there was no motivation for Ms Ralph and Ms Sayhoun to lie about the Tyson incident. 217 Ms Nomchong referred to the failure to call as witnesses, SC Collier, SC Martin and SC Inglese, with no explanation. A Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298) inference was clearly available. Ms Nomchong submitted that the evidence of other organisations, entities and persons whom SC Gilmour sought responses from, should be ignored. They were hearsay; they all gave varying stories of what material they received; the instructions from SC Gilmour were self serving; and, save for SS Williamson, none of them were actually present during the incidents. 218 Ms Nomchong submitted that the Commission would have no hesitation in finding that there was sufficient evidence that the three incidents had occurred and a finding on one, or all of them, would be sufficient to justify the s 173 order. 219 Turning to the puppies incident, Ms Nomchong said that the date was immaterial. It was the age of the puppies which was relevant and Ms Sayhoun and Ms Ralph both gave unchallenged evidence that they could tell the difference between an eight week old puppy and a six month old one. They had not reported the incident because their earlier complaints to Mr Pearse were ignored and they had been in junior roles. There was a certain dynamic in the Dog Unit where they would be reluctant to 'dob in' a superior officer who had treated them poorly in the past and who had been protected by Mr Pearse. 220 Ms Nomchong compared the two assessment forms SC Gilmour had said related to the same 49 day test of the puppies. She submitted that on a close analysis, they don't marry up and must give rise to a concern with the credibility of SC Gilmour's evidence. She said that there were two tests and the second test involving a height test on 14 September was what Ms Sayhoun and Ms Ralph saw. While there was no explanation as to why a second test was necessary, it is immaterial, as the objective evidence says there was a second test. 221 Turning to the Roscoe incident, Ms Nomchong submitted that the evidence was 'all one way'. Ms Ralph and Ms Sayhoun observed the incident from different positions. They said SC Gilmour was angry and frustrated with Roscoe and when only five metres away threw a hardened rubber pipe, with full force, aiming for the dog, which he hit. If it was inadvertent, it might be expected that SC Gilmour would express some remorse. Ms Nomchong said that Mr Pearse's evidence should be disregarded because he had a motive to protect himself. His view of the standard practice was inconsistent with every other witness, who had said the only circumstances where a dog might be hit, is if it was in danger of hurting someone or itself. To do otherwise was mistreatment. 222 In respect to the Tyson incident, there were three reasons why the gun steadiness test was improper. Firstly, it wasn't appropriate for a nine month old puppy; secondly, it wasn't appropriate where the dog was already exhibiting signs of fear and anxiety; and thirdly, the manner of how the test was carried out wasn't appropriate. SC Gilmour had had an argument with Insp Hinds about the need to conduct the test and was determined to prove Insp Hinds wrong. Such an approach was inappropriate and arrogant. 223 Ms Nomchong concluded that there doesn't need to be known written standards which say that hitting a dog with full force and dropping puppies is inappropriate. The Police Force's disciplinary process refers to a conscious disregard for known standards and directions. This is what occurred in the puppies and Roscoe incidents, and to a lesser extent in the Tyson incident, where there was some disagreement about the distance from which the gun was fired. The process also refers to knowing not to do something and then choosing to do it. On SC Gilmour's own evidence, he had accepted that the allegations were made out, he knew what he did was wrong, but chose to do it anyway. 224 Ms Nomchong put that SC Gilmour had developed a reputation of being aggressive, abrasive, dismissive and contemptuous of the kennel staff. The three incidents were manifestations of a person who considered himself answerable to no-one. He says he is willing to do a medical assessment, but doesn't need an interview or further training, which all other members of the Police Force are required to undertake. She said the incidents were indicative of an employee spending too long in one area and under the protection of Mr Pearse. Moreover, he had shown no expressions of remorse. 225 As to procedural fairness, Ms Nomchong conceded that there were explanations for some, but not all aspects of the delay in finalising the investigation. There were two investigations. Insp Hinds had difficulty interviewing witnesses and there were other operational difficulties which meant SC Gilmour wasn't interviewed until 22 November 2006. Of 15 allegations, Insp Hinds took the view that unless each allegation was corroborated by two people, it couldn't be sustained. After the investigation report went to the CMT, SC Gilmour sought a second review. Ms Nomchong submitted that Supt Middlemiss was perfectly entitled to have a view and her view was taken into account by the CMT and IRP. In any event, the notification of transfer was not signed by Supt Middlemiss. Ms Nomchong said it was irrelevant that Insp Jenkins agreed with a lesser penalty because he had accepted the misconduct had occurred. The delay between the IRP's recommendation (of a disciplinary transfer) on 14 August 2007, until the Show Cause Notice in January 2008, arose because a transfer involved finding a LAC willing to accept SC Gilmour. 226 Ms Nomchong accepted that there was a delay in the provision of materials once the order was made, but the real issue was whether SC Gilmour had been prejudiced. Here, SC Gilmour has had the opportunity to run a de novo hearing. 227 Ms Nomchong said that the s 173 order was not beyond power, nor was it harsh, unreasonable or unjust. There was a modest demotion and SC Gilmour was an officer of the Police Force, not of the Dog Unit. Officers can be transferred for operational reasons and there is no right or entitlement to be a member of the Dog Unit. The disciplinary transfer was reasonable in circumstances where SC Gilmour had been found guilty of cruelty to animals and of deliberately mistreating dogs in his care. These were not minor infractions and he had shown no contrition. The disciplinary transfer was protective, not punitive, both for SC Gilmour and the Dog Unit. 228 Ms Nomchong said that despite his complaints with his present work, SC Gilmour had taken no opportunity to apply for promotion or engage in further training, yet he wants to return to the Dog Unit as a Sergeant and doesn't want to undertake the training assessment that all other officers are required to undergo. He merely wants to 'leapfrog' other experienced and meritorious candidates for the position. 229 As to remedy, Ms Nomchong said it was extraordinary, and contrary to all past authority, that SC Gilmour not only wanted the s 173 order revoked, but for him to be promoted as a Dog Development Officer, or put in a Dog Handlers position and not undertake the necessary training and interviews. 230 As to the criteria for a dog handler's position, Ms Nomchong said it required the person to live in the Sydney Metropolitan area (which the applicant doesn't). He last held the position in 1998 and since then there has been a substantial restructure involving new assessments, training, interview and selection. It is a largely unsupervised position, working from home with the provision of a car. As such it would be entirely inappropriate to put someone of SC Gilmour's disposition into the role. It also involves some general police duties which SC Gilmour hasn't done for some time. She said it would be entirely inappropriate to put SC Gilmour back in a position for which rank he does not hold, or in a position he is totally unsuited for. In the alternative, an offer had been made that SC Gilmour could return to the Dog Unit as a Unit Co-ordinator. This would simply involve revoking the order and doing no more until SC Gilmour took steps to transfer from his interim transfer at Lake Illawarra LAC. Such a return would still constitute an overstrength position and SC Gilmour could then apply for promotion to the position of Dog Development Officer, or undertake the necessary training and assessment for a Dog Handler's position. In reply 231 Mr Howell emphasised that the interim nature of the transfer to Lake Illawarra LAC evaporates at the conclusion and determination of these proceedings and he has a right to return to the Dog Unit. 232 Mr Howell submitted that he had not put that there was a different evidentiary burden in these proceedings to that referred to in Neat Holdings v Karajan Holdings. The Commission need only be satisfied that, on the balance of probabilities, the allegations had, or had not been made out, taking into account the inherent improbability of the behaviour occurring. 233 He rejected Ms Nomchong's submission that this wasn't a termination case, as the effect of the order was to terminate SC Gilmour's 18 years of unblemished service in the Dog Unit. 234 Mr Howell said that the only reason SC Gilmour couldn't give any evidence as to his intention in the Roscoe incident was because initially he couldn't recall it. In any event, the contemporaneous record indicated that a reasonable inference could be drawn of his intentions to comply with accepted training procedures. 235 Mr Howell said Ms Nomchong sought to criticise SC Gilmour for not calling witnesses yet, it was Insp Jenkins who suggested SC Martin be interviewed, and he wasn't. SC Gilmour understandably sought the views of his colleagues as to accepted practices, in the context of him not being told what procedures and practices he was alleged to have not followed. As to the failure of Ms Sayhoun and Ms Ralph to complain, Mr Howell noted that Supt Middlemiss had commenced duty around that time and they could have both complained to her, if dissatisfied with Mr Pearse. In any event, the evidence was that their complaints to her were about SC Gilmour's attitude and rudeness towards them, not about a very serious allegation of cruelty to nine puppies. Moreover, there are legislative requirements on persons in the Police Force to report inappropriate incidents and protections for such complainants from reprisals. 236 As to the inconsistencies in the two assessment sheets, Mr Howell said SC Gilmour was never given an opportunity to explain any inconsistencies in the witness box. The claim first appears in the Police Force's written submissions. 237 As to the Roscoe incident, there is a contemporaneous record of the dogs fighting and neither Ms Ralph nor Ms Sayhoun said the dogs were fighting. The evidence was that dogs fighting could lead to injury. In any event, to suggest the article could be thrown anywhere at the fence defeated the purpose and was contrary to accepted practice. It had to be thrown close to the dog and could accidentally hit the dog. There was no reason why SC Gilmour would falsify training records. As to Mr Pearse protecting himself, he had given sworn evidence in these proceedings in circumstances where he is no longer in the Police Force. There was absolutely no reason for him to lie. 238 On the Tyson incident, Mr Howell said it had been accepted practice to gun test a dog within 48 hours of it being brought to the Unit and he had done nothing more than comply with Insp Hinds' direction. 239 Mr Howell said it was simply wrong for Ms Nomchong to point to some perceived poor attitude of SC Gilmour, which should be taken account of, in determining whether the order was beyond power, or was harsh, unreasonable or unjust. The basis of this review, is the order itself, based on the three allegations. It was never put to SC Gilmour that a perceived poor attitude had anything to do with the order. It cannot be rewritten now to reflect additional allegations. As to how this might impact on his return to the Unit, Mr Howell said that it would be entirely inappropriate for Supt Middlemiss and Insp Hinds to interview SC Gilmour for any position at the Dog Unit. 240 Mr Howell said there was a very real prejudice to SC Gilmour in the delay in concluding the investigation. It was a lost opportunity and recollections fade - as was evident in these proceedings. It is something which is lost and never able to be regained, notwithstanding these proceedings are a de novo review. 241 Mr Howell submitted that SC Gilmour's lack of remorse doesn't come into it. He had nothing to be remorseful about. He believed he conducted all of the assessments in an appropriate and consistent way. 242 Mr Howell rejected Ms Nomchong's criticism of SC Gilmour for not applying for promotion. He understood that because of the allegations being investigated he would face an automatic fail. He had to await the outcome of these proceedings. 243 Mr Howell said that the relief being sought was not extraordinary. SC Gilmour had performed the job of a General Purpose Dog Handler before and he was prepared to undergo the medical, physical or psychological assessments as required. There are current vacancies and there is no issue of 'leapfrogging' other worthy applicants. 244 In further written submissions, Mr Howell said that SC Gilmour had already been assessed as suitable to work with police dogs. He had been recommended by fellow trainers and supervisors as being competent to perform the duties of a General Purpose Dog Handler. 245 Mr Howell said the issue of practicality of reinstatement to his former position in the Dog Unit was akin to the reinstatement provisions under s 89(2) of the Industrial Relations Act where a position need only be available, not necessarily vacant: See IGA Distribution v Moses. 246 Mr Howell said that an order for reinstatement as a General Purpose Dog Handler was appropriate in light of: (i) Mr Gilmour's lengthy period of service in the Dog Unit, including in excess of nine years as an Operational General Purpose Police Dog Handler; (ii) A further ten years working full-time as the trainer of General Purpose Dog Handlers; (iii) the fact there are currently a number of vacancies for operational general purpose police dog handler's within the Unit; and (iv) there are a number of trainee dogs there are no discretionary factors that would cause the Commission to not grant the relief sought. He said that Insp Hinds' evidence was that at September 2008, the Unit's authorisation was for 40 general purpose handlers, with 30 currently appointed. As there are a number of available vacancies, SC Gilmour would not be 'leapfrogging' anyone else, or displacing other more meritorious candidates. 247 Mr Howell added that there was no reason why SC Gilmour could not be 'grandfathered' in the position due to the boundary requirements of the position, just as other long serving Dog Handlers had been. 248 As to the Dog Development Officer position, Mr Howell submitted that SC Gilmour should not be disadvantaged by the restructure and promotion process, considering the extraordinary delay in finalising the investigation. The position is substantially the same as SC Gilmour previously occupied as an Acting Sergeant. CONSIDERATION The Puppies Incident 249 By any measure, this allegation must be said to be the most serious of the three identified in the Commissioner's s 173 order. Based on the evidence of the Police Force's primary witness, and as told to Insp Hinds, Ms Sayhoun, alleged that SC Gilmour encouraged nine, six to eight week old puppies, up a ladder to a platform approximately 1.6 metres high and allowed all nine puppies to fall from the platform. Further, he was alleged to have then picked up all nine puppies and drop each of them from waist height. 250 I would agree with Ms Nomchong that the fact that none of the puppies were reported to have been injured is irrelevant, for if this allegation is found to be true, I would have no hesitation in refusing to revoke or vary the Commissioner's s 173 order. It would be considered cruel, even barbaric behaviour, let alone totally inappropriate. Moreover, I consider that this allegation, on its own, if substantiated, would be sufficient to justify the making of the order and, on one view, the order might, in fact, be said to be inadequate, given the objective seriousness of what is alleged. 251 Putting aside evidentiary inconsistencies (which I will come to shortly), it seems to me that the correct approach in considering whether the Commission can be reasonably satisfied that the allegation has been proven, is to apply that now well known test established by the High Court in Briginshaw v Briginshaw. The oft quoted passage of Dixon J is as follows: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made , the inherent unlikelihood of an occurrence of a given description , or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (my emphasis) See also Neat Holdings v Karajan Holdings where the High Court said " there is a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct... ". 252 A Police Officer is not automatically attached to the Dog Unit. He or she will usually apply to the Unit after working in general duties for a period and will be required to undergo various medical, psychological and fitness assessments. 253 SC Gilmour is accused of deliberately risking serious injury to a group of nine, helpless and immature puppies by inappropriate conduct. Until these allegations, SC Gilmour has had an unblemished career in working closely with dogs and puppies for over 18 years. His experience in raising, caring and training puppies and dogs is far in excess of what even the most avid and dedicated dog owner would ever encounter. I accept his evidence, supported by his colleagues, that he loved his job and loved working with dogs, and would never intentionally hurt a dog. 254 It is relevant, in my view, to observe that there was absolutely no need to perform an assessment of six to eight week old puppies, such as this, to see if they would fall off an elevated platform. Any trainer of rudimentary experience, let alone an experienced one, would see no intrinsic value in such an agility assessment of immature puppies. In other words, why would SC Gilmour waste his time performing such an assessment, if it was both, completely unnecessary and utterly useless, as a genuine assessment measure? Moreover, the evidence was that agility assessments are not performed on Labradors of any age, as they are used as detection dogs. It makes no sense at all to me, nor, I apprehend would it make any sense to any objective observer. 255 Even more remote from reality, is the proposition that an assessment of eight week old puppies would include dropping each puppy from waist height. All witnesses agreed that this would be unnecessary, cruel and likely to cause injury to the animal. In quiet reflection, I have asked myself many times, why would anyone, let alone an experienced handler and trainer, conduct themselves in such a fashion? If it had happened, what criterion or trait in the puppy could such an exercise hope to establish or discount? In my opinion, there is absolutely no rational basis why anyone, in their right mind, would subject helpless, immature animals to such cruelty. 256 It seems to me that such a conclusion is fortified by another pertinent rhetorical question. Why would anyone - indeed a police officer - for whatever sadistic purpose, conduct themselves in such a completely unacceptable - indeed unlawful - manner, not once, or a few times, but 18 times, in an open compound, within plain view of anyone who might be in the vicinity? 257 In postulating these inexplicable and illogical questions, it follows that I am satisfied that there is an inherent unlikelihood of such an incident having occurred. Accordingly, I would conclude, on the balance of probabilities, that this allegation against SC Gilmour, cannot be sustained. Even if I were to be wrong about this conclusion, I am satisfied that, on the state of the evidence, the Police Force has not satisfied the onus it bears of proving the misconduct as alleged. This leads the Commission to making observations and findings on the applicant's evidence, crucial inconsistencies in the eyewitness evidence and other improbable evidence. 258 In my view, if the Commission accepts that SC Gilmour conducted a 49 day (acknowledged as 44 days) assessment on the puppies on or about 1 September 2005, in the demountable, then the allegation based on Ms Sayhoun's evidence must collapse. That is so because she could not have seen the assessment from outside the building; let alone observe any inappropriate conduct therein. 259 The only documentary record of where this assessment was conducted is found on the Puppy Behaviour and Drive Assessment Sheet indicating that the test was performed in the 'demountable'. It is dated 14 September 2005, and this later date was explained by SC Gilmour as when he transferred the assessment results, some two weeks after the test was conducted, at the time the puppies were named. There is no suggestion that this document was anything other than a contemporary account of the assessment. Similarly, there was no proposition advanced that the document had been reproduced at a much later time or that the word 'demountable' had been inserted at a later time. Moreover, the practice of performing the 49 day test in the 'demountable' was reinforced by the example of another similar test in January 2005, which again referred to where it was performed as being in the 'demountable'. It was said that the reason for the test being conducted indoors was that the puppies at that age were very susceptible to distractions; a proposition which seems perfectly sensible. 260 It is strange that Ms Sayhoun asserted that the assessment she observed and attached to her statement was that first recorded by SC Gilmour and dated 1 September 2005. She recognised his handwriting as a test conducted 'hight (sic) on table'. If this is correct then it is entirely consistent with SC Gilmour's description of such an assessment being conducted on a table. In other words, the 'hight (sic) on table' test was what Ms Sayhoun was later to describe as the inappropriate test conducted on the ladder and plank. 261 Of relevant note is the kennel attendants' own diary records. These show the daily movements of dogs and other unusual events. There is a note, 'Pups x 9' on 1 September 2005. This would seem to suggest the attendants had done something with nine puppies on that day. There is no corresponding notation for 14 September 2005. 262 Importantly, it seems to me, that the first time SC Gilmour gives his version of events was in his interview with Insp Hinds on 22 November 2006. Until then, SC Gilmour had no specific knowledge of what was alleged against him, who had made the allegations or what they allege they saw. He knew only that it related to 'cruelty to dogs'. In other words, it would have been impossible for SC Gilmour to construct a false defence involving the initial test being conducted in the 'demountable' when he didn't even know the specifics of what was being alleged. However, he told Insp Hinds that he conducted the initial test in the 'demountable' and a later test (six month test) in the puppy compound. His evidence in this regard has not deviated since that time, up to and including his sworn evidence to the Commission. It seems to me that all of the objective evidence must lead to a finding that SC Gilmour conducted the 49 day test on the six week old puppies in the 'demountable' on or about 1 September 2005. It follows that Ms Sayhoun could not have seen what she alleges and the evidentiary burden on the Police Force cannot be satisfied. This finding would seemingly settle any argument as to the puppies incident. However, lest there be any doubt about this finding, I would also intend to highlight a number of other inconsistencies in the evidence of the Police Force's witnesses. 263 Firstly, Ms Sayhoun said that Ms Eckhardt was present and they were both 'mortified' by what they saw. Ms Ralph claims she was present, but Ms Sayhoun makes no mention of her at all. Ms Ralph makes no mention of Ms Eckhart being present. Curiously, Ms Eckhart was never interviewed. Thus, it is difficult to positively conclude whether Ms Eckhart or Ms Ralph were with Ms Sayhoun at the time, and therefore what any of them saw. 264 Secondly, Ms Ralph said she saw SC Gilmour encourage one puppy jump off the plank and made no mention at all of SC Gilmour dropping any puppies from waist height. Ms Sayhoun said all the puppies fell off the plank and all nine were dropped from waist height. 265 Thirdly, neither Ms Sayhoun nor Ms Ralph could say what the other eight puppies, who were not being encouraged up the plank, or being dropped from waist height, were doing when it wasn't their turn for assessment. 266 Fourthly, Ms Sayhoun said she couldn't recall seeing anyone with SC Gilmour at the time, and Ms Ralph said she didn't see anyone with him. SC Gilmour said SC Collier was present and this is seemingly corroborated by his name being recorded on the Puppy Assessment Form. In my view, it would be a recipe for chaos, and therefore highly improbable, that one would assess all nine puppies, without assistance. How could one person conduct the assessment and manage the eight other puppies at the same time and how would you later know which puppy related to which assessment? 267 Fifthly, the first reference to a puppy on a ladder and plank equipment is found in Insp Hinds' report which included the interview with SC Smith who told him on 19 July 2006: "Q39 Are you aware of anybody else that may have witnesses any incidents similar to this? A. Yeah, a couple of kennel girls Nicole Ralph and Michelle (sic) Sahyoun have informed me that they saw Kim with a pup, a German Shepherd pup on the ladder and plank, which is the, part of the agility, after the dog has walked across the plank, Kim has removed the dog from the plank at approximately five and half feet off the ground and then just dropped the dog onto the, on the ground." As this is the first reference to a puppy on a ladder and plank equipment and was, in fact, the trigger which led to the two kennel attendants being interviewed, it may safely be assumed that this exchange records the same complaint. If this be so, then either SC Smith got the whole story completely wrong, or Ms Sayhoun and Ms Ralph 'escalated' the incident from a single German Shepherd puppy on the agility equipment, not falling from the equipment, but being dropped by SC Gilmour, to a vastly different, and more damaging allegation, involving nine Labrador puppies. 268 Sixthly, there was much disagreement about the height of the ladder and plank equipment. All witnesses said there were two pieces of the same style of equipment. The difficulty in reconciling the witness evidence, is compounded by the fact that the equipment in 2005 is no longer in place. Ms Sayhoun and Ms Ralph said they were the same height. Mr Pearse said the ladder and plank in the agility compound was 5 ½ feet high and the puppy ladder and plank had four steps at 20cms intervals, making it around 100cm, or around knee high. SC Gilmour said there was no way puppies would be allowed onto the higher piece of equipment, only on the puppy equipment. 269 Initially, Ms Sayhoun described to Insp Hinds the ladder and plank equipment as the 'little ramp thing'. This was a strange and, of course, inapt description of what she later said was the same thing. The 'little ramp thing' then became the 5 ½ foot ladder and plank. Of course it was neither little, nor a ramp. Was this an example of Ms Sayhoun being confused by her own recollections? 270 It seems to me that it would make little sense to have two ladder and planks of the same height, if the purposes were very different; that is for use by puppies to test height sensitivity and the higher equipment used for agility testing of older or adult dogs. In addition, there was documentary evidence that the puppy equipment was not even constructed by 1 September 2005. Kennel Diary entries record on 26 June 2005 'Handyman started puppy equipment construction' and on 6 September 2005 'Puppy equipment finished'. How was it possible then for Ms Sayhoun to observe puppies on equipment not yet constructed? I would conclude therefore, that at the relevant time, there were two sets of ladder and plank equipment. The puppy equipment was around 90 to 100cm high, while the adult equipment was approximately 1.5 metres. 271 There are other highly improbable pieces of evidence which, to my mind, must cast serious doubt on whether Ms Sayhoun, and to a lesser extent, Ms Ralph should be believed. One of the most disturbing questions I have had to grapple with in this case, is why neither Ms Sayhoun or Ms Ralph reported this incident soon after it occurred; indeed they never reported it at all. Not only did they have a direct obligation under the Code of Conduct, to immediately report such an incident, but here were two persons, trained in caring for animals, allegedly witnessing the cruelty and risk of injury to a number of very young puppies. I'm afraid I cannot reconcile, or understand, why they didn't report it if it was true. Nor do I consider their reasons for not doing so, to have any credibility. To suggest that they were uncomfortable in doing so because SC Gilmour was the trainer, or that they didn't think Mr Pearse would do anything about their complaints, does not stack up. It was simply wrong to suggest that Mr Pearse had not acted on her complaints before. Duty book records show that SC Gilmour was counselled about his attitude and demeanour towards staff after Ms Sayhoun had complained. Moreover, Ms Sayhoun certainly wasn't shy in bringing her earlier complaints about SC Gilmour's disrespectful treatment of the civilian staff to Mr Pearse's attention. How much more important was a complaint of cruelty to young puppies; yet Ms Sayhoun says nothing! She said that none of the Unit's senior officers would have taken cruelty by the trainers seriously. This is an outrageous and defamatory claim which I reject unreservedly. 272 In any event, Mr Pearse was not her direct supervisor - Ms Flecknoe was. In addition, Ms Sayhoun's explanation that her other complaints had not been unattended to, sits rather uncomfortably with the fact that there was a new Commander in place, just four days after 1 September 2005. There is no sensible explanation why she could not have raised her concerns with Supt Middlemiss. 273 In addition, it was not disputed that Ms Eckhart was, at the time, in a relationship with the former Commissioner and the puppies were actually his puppies. If Ms Eckhart did see what was alleged, it defies logic that she did not mention it to him. 274 Of course, Ms Sayhoun and Ms Ralph did not report any of the three incidents. Ms Sayhoun said she reported the Roscoe incident to Mr Pearse, which he denies. (I will later find his evidence to be preferred.) The Kennel Attendants had their own daily diary which records movements of dogs and by whom, particular tasks, such as taking a dog to the vet, noticing and treating particular injuries or recording an escape. It is extraordinary, given these daily records are specific to the attendants themselves, that there is not a single notation of any of the incidents which Ms Sayhoun and Ms Ralph said they saw; even more extraordinary, given that incidents involving injury to, or illness of a dog are carefully notated. 275 Nevertheless, Ms Nomchong submitted that Ms Sayhoun and Ms Ralph had nothing to gain by making up the allegations against SC Gilmour and they should therefore be believed. With respect, this submission ignores the very real antipathy demonstrated by Ms Sayhoun towards SC Gilmour and which might reasonably be assumed as a motive for the claims she has made against him. The evidence disclosed complaints made by her about SC Gilmour's attitude and demeanour. She said he was rude and abrupt and spoke in a derogatory way to kennel staff in order to embarrass and humiliate them. She believed (wrongly) that her complaints were ignored and that everyone had to accept SC Gilmour's way of doing things. She said SC Gilmour constantly undermined and degraded the kennel attendants. She agreed that she didn't like SC Gilmour and wouldn't go to him for assistance. It has not escaped my attention that Ms Sayhoun had taken over some of SC Gilmour's duties when he was transferred from the Unit. Ms Ralph's view of SC Gilmour was a little more temperate. She said he was not overly friendly, was always very abrupt and he believed the kennel attendants were never right. 276 The mere dislike of a person would not ordinarily result in that person deliberately intending to destroy the other person's career by making serious untrue allegations against him/her. However, it is plain enough that Ms Sayhoun and Ms Ralph would have hardly been unhappy when SC Gilmour was transferred out of the Dog Unit. In making these observations, I do not wish to convey any hint of condonation of SC Gilmour's attitude and demeanour towards other employees in the Unit. That his own supporting witnesses would variously describe him as 'abrupt with a hint of arrogance', 'sometimes difficult to work with', 'abrasive', and 'a cantankerous old bloke from time to time', is testament to the difficulty he has in dealing with work colleagues in a respectful and appropriate manner. I can well understand and sympathise with the kennel attendants when they observed that the use of the term 'kennel maids' was a hurtful and derogatory description. Indeed, in my view, it was totally inappropriate and unacceptable. Perhaps all staff at the Dog Unit should undergo some specific training on appropriate conduct and behaviour in the workplace. Certainly SC Gilmour needs to have a good hard look at himself, as I don't believe he acknowledges or appreciates the hurt and discontent his past conduct and behaviour has caused in the workplace. It is simply not good enough to think that one person is the font of all wisdom as to police dog training or that a person's age or personality can be an excuse for not treating fellow employees with respect, courtesy and good heartedness. That said, it cannot be lost sight of that all of the character references of SC Gilmour gave evidence that his personality flaws did not effect the quality of his work with the dogs, his dedication to his work or his professionalism. It follows, that I agree that these workplace conflicts have nothing to do with SC Gilmour's work ethic and the performance of his duties. Consequently, they have nothing to do with the task of the Commission in this s 174 review. 277 For all these reasons, I am satisfied, on the balance of probabilities, that this allegation as to the puppies incident has not been proven. The Roscoe Incident 278 There does not appear to me to be any dispute that in a 12 monthly assessment of the German Shepherd, Roscoe on 1 November 2005, the dog, when released into the compound, began fighting with other dogs through the fence and could not be distracted to perform retrieval exercises. He was later assessed to be unsuitable to be trained as a police dog. Notwithstanding that SC Gilmour could not recall the incident, he said that he would have thrown the article at the fence and that he had never thrown an article to hit a dog. He agreed it could be injured. Such action would only be necessary if the dog was biting, in danger of biting someone or in danger of injury. 279 I interpose to observe that I draw no adverse inference from SC Gilmour's initial inability to recall this incident or the name of the dog in question. He would have performed many such assessments on the same breed of dog. When the allegation was first raised, it was hardly specific. The incident was said to have occurred between August and September 2005 and he was first asked about it in his interview on 22 November 2006. Is it any wonder that he might have had some difficulty in recalling such an incident? 280 It seems to me that consideration of this allegation falls under three questions of what might have been SC Gilmour's intention when he threw the rubber hose at Roscoe. Firstly, if the intention was to hit the animal to cause it pain, then clearly such conduct was cruel and inappropriate. Secondly, if the intention was to attract the dog's attention by hitting it, then that question raises issues of appropriate training methods in such circumstances. Thirdly, if the intention was to throw the object to distract the dog and it was hit accidentally, then I agree with Insp Hinds' evidence that this would not constitute misconduct. 281 In my opinion, the first of these questions must be answered in the affirmative for the Commission to determine whether this allegation has been proven. Obviously, no one, including this Commission, can know what a person's intent might be in a particular set of circumstances. In my view, a person's intent can be assessed on the balance of probabilities, having regard for the inherent unlikelihood of a person, particularly one whose livelihood involves working with animals, of committing an act with the deliberate intent of injuring or hurting that animal. I consider that this observation is entirely consistent with the judgement of Fullagar J in Pascoe v Commission of Taxation (1956) 30 ALR 402, where his Honour said at p 403: Where a person's purpose or object or other state of mind in relation to a given transaction is in issue, the statements of that person in the witness box provide, in a sense, the "best" evidence, but, for obvious reasons, they must, as Cussen J., observe in Cox v Smail ((1912) V.L.R 274, at p. 283), "be tested most closely, and received with the greatest caution." I have already considered the inherent unlikelihood of SC Gilmour's alleged conduct in respect to the puppies allegation and consider it has similar application to this allegation. I begin by making a number of observations of the evidence of the trainers themselves. 282 Firstly, there was no reported injury to the dog. Secondly, I accept the evidence that a dog may yelp when it is startled, not only if it is actually hit by an object. Thirdly, it is a common training technique to throw an article such as a hose, a ball or a chain to distract a dog from unwanted behaviour or to redirect its attention. Fourthly, it would seem an entirely reasonable proposition that, by throwing an article close to a dog, it may occasionally and accidentally, hit the animal. Fifthly, at least one experienced former trainer considered that it may be appropriate, in certain circumstances, to throw an article at a dog with the intention of hitting it, but not injuring it. 283 As to the evidence of Ms Sayhoun and Ms Ralph, I agree with Mr Howell's observation that their views must necessarily be qualified by the fact that neither of them were trainers or necessarily informed as to what might, or might not be, appropriate training procedures in this situation. The same admission was made by Insp Hinds, whose primary role had been supervisory. That being so, I consider that the evidence of the trainers themselves must be accorded more weight than that of the Police Force's eyewitnesses. Nevertheless, I again consider Ms Sayhoun and Ms Ralph's evidence must be treated with the utmost caution given my finding as to the puppies incident and the inconsistencies in the evidence, even in this incident. These were firstly, that neither of them records the other as being present and witnessing the incident. Obviously, there is no mention of what either one might have said to the other at the time. This seems at odds with Insp Hinds' reliance on two corroborating eyewitness accounts to justify his findings that the allegation was proven. 284 Secondly, Ms Sayhoun said SC Gilmour was two to three metres from Roscoe when he threw the pipe. Ms Ralph said it was 10 metres. To my mind, such a difference is a significant conflict in their accounts. 285 Ms Sayhoun said she had raised the matter with Mr Pearse, but heard nothing more about it. In cross-examination, she could not recall when she had done so. There is no record in the Duty Book of Mr Pearse receiving such a complaint and he denied ever having received it. If Mr Pearse had deliberately omitted recording the complaint and, more significantly, had done nothing about it, it would be regarded as a serious dereliction of duty and one amounting to actionable conduct under the Act. Given that Mr Pearse does record other complaints from Ms Sayhoun about SC Gilmour's attitude, and the likely consequences of failing to record and action a complaint as serious as cruelty to an animal, I am satisfied that Mr Pearse's evidence is to be preferred and Ms Sayhoun made no such complaint. I note also that Ms Ralph makes no mention of making a complaint about the matter. Significantly, had Ms Sayhoun been really concerned with lack of follow up by Mr Pearse she had ample opportunity to raise her concerns with Supt Middlemiss or her direct supervisor, Ms Flecknoe. Supt Middlemiss had now been at the Unit for a number of weeks. The first time the matter was raised was 10 months later when it just happened to come up in the interview with Insp Hinds. Having found that there was no report of the incident by either one of the eyewitnesses, I am struck again by their apparent indifference to their obligations to immediately report such conduct. What is even more curious is that the Roscoe incident is only a month after their alleged witnessing of the puppies incident. If there really was a pattern emerging of SC Gilmour's conduct amounting to cruelty to animals, their silence must raise grave concerns as to the credibility of their evidence overall. 286 In addition, much attention was directed in Ms Sayhoun's oral evidence to the force with which the object was said to be thrown. In my view, significant force was necessitated by the nature of the assessment itself; to create a loud enough distraction for the dog to be diverted from what it was doing. It would simply have had no effect if the object was limply thrown such as to make little, or no impression. 287 Given all these matters I cannot be satisfied, on the balance of probabilities, that SC Gilmour deliberately intended to hit Roscoe when he threw the rubber hose towards him on 1 November 2005. Accordingly, I find that this allegation cannot be sustained. The Tyson Incident 288 Apart from some controversy about the appropriate distance between the trainer firing a gun at the dog during a mandatory gun steadiness test, there would appear to be little factual dispute in respect to this incident. The issue, it seems to me, is whether SC Gilmour fired the gun at a distance of 10 metres such as to intentionally frighten the dog, Tyson. It will be readily apparent that the allegation itself actually contains an inherent inconsistency. Mr Howell was correct, in my view, in observing that the very purpose of the gun steadiness test is to establish whether a dog is frightened by the sound of sudden loud noise, such as a gunshot. There is no dispute that, if it is, then it is unlikely to be of any use as a police dog. It followed, so the argument goes, that as the test proved the dog Tyson was frightened then the purpose of the test had been well and truly demonstrated. Therefore, SC Gilmour could hardly be criticised, particularly as it seems he was instructed by Insp Hinds to test the dog, notwithstanding that SC Gilmour believed it was unnecessary because the dog was a 'fear biter', which rendered it unsuitable in any event. He had had an argument with Insp Hinds about it. The first matter that springs to mind is that I consider it was absolutely inappropriate for Insp Hinds to have conducted the investigation into this incident, given his direct involvement in the circumstances he was investigating. Nevertheless, a number of other issues are pertinent to determining this allegation. 289 Firstly, prior to July 2006, there were no documented approved protocol or operating procedures for the performance of gun steadiness tests on dogs at the Unit. Indeed, it is true to say that the now documented procedure arose from this incident and an earlier incident involving a dog 'Storm'. Secondly, what is relevant here are the views of the trainers themselves as to what constituted the usual practice of gun steadiness testing, as distinct from the observations of those eyewitnesses who neither conducted such tests, nor were informed as to the usual practice. 290 Thirdly, I accept that the usual practice was that the dog is released into an enclosed area and given time to familiarise itself with its surroundings. A play article is tossed towards the dog to gain its attention and having done so a blank shot is fired by the trainer at a distance of approximately 20 metres. The undisputed evidence was that the test had been conducted in this way for many years. 291 Fourthly, there is a contemporaneous note of this incident by SC Gilmour dated 26 April 2006, which demonstrated that he followed the procedure on Tyson; although I accept he made no reference to the distance the shot was fired at. 292 Fifthly, the preponderance of evidence (Sgt Mayer, AS Wright, SS Williamson and Mr Pearse) would suggest that the usual distance was 20 metres. I accept this evidence. Only Insp Hinds said the usual distance was 30 metres. 293 Sixthly, SC Gilmour believed the dog was already unsuitable because it was a 'fear biter' and there was little point in proving the obvious. All of the witness evidence would suggest that the dog was already fearful when he was released into the compound. In light of this evidence, it would seem that SC Gilmour could hardly have intentionally frightened the dog (by firing at a distance of 10 metres, or even 20 metres), if it was already exhibiting signs of fear and anxiety. Even so, I do not accept the evidence of Ms Sayhoun and Ms Ralph for similar reasons of inconsistency that I have referred to earlier. These inconsistencies include: 294 Firstly, Ms Ralph corroborated SC Gilmour's contemporaneous note and his consistent evidence ever since, that he threw a play article at Tyson in order to have him retrieve it. Yet, Ms Sayhoun was most insistent, in her interview with Insp Hinds, that no toy had been thrown. 295 Secondly, Ms Sayhoun said that he fired the gun 'directly' at the dog from a distance of 10 metres. Earlier she had told Insp Hinds it was two metres. Ms Ralph said he fired the gun at a distance of 10 to 15 metres. She had told Insp Hinds she had seen SC Gilmour fire the gun at the furtherest of 20 to 30 metres and closest at 10 to 15 metres. In my view, from two to 15 metres is too great a distance to be considered merely a vagueness of recollection. 296 Thirdly, Ms Sayhoun makes no reference to Ms Ralph being present and witnessing the incident. Yet, Ms Ralph said Ms Sayhoun 'may' have been there. 297 Again, Ms Ralph and Ms Sayhoun made no complaint about the matter at the time, despite Ms Ralph being aware of the earlier gun steadiness test issue involving 'Storm' (she had returned 'Storm' to its owner, Ms Boyle). For the reasons earlier expressed this failure raises real and serious questions, in my mind, as to the credibility of the evidence of Ms Sayhoun and Ms Ralph. In my view, Ms Sayhoun sought to exaggerate her claims about this matter in order to have the incident appear much more serious than it was. 298 For the reasons I have expressed, I find that SC Gilmour conducted an appropriate gun steadiness test on Tyson on 26 April 2006, and he did so according to the Unit's usual practice. It follows that the allegation of intentionally frightening Tyson has not been made out and no misconduct occurred. 299 Even if I be wrong about the distance the gun was fired at, I would not be able to conclude, given the lack of any standardised documented procedures, that SC Gilmour would have been guilty of the misconduct alleged against him. 300 Mr Howell submitted that the definition of misconduct, in the disciplinary context, cannot mean mere mistakes, errors in judgement, errors in discretion, carelessness, negligence, inefficiency or poor performance. He put that misconduct means 'wrongful, improper or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts'. He submitted that none of the allegations against SC Gilmour fell into the definition of misconduct. Strictly speaking, it is unnecessary for the Commission to make findings on these submissions, as I have found that the evidence advanced in these proceedings, on the balance of probabilities, does not permit a finding that any of the allegations have been proven to the requisite standard. The question of whether the conduct was misconduct does not, therefore arise. That said, I consider Mr Howell's submissions are thoughtfully made and soundly based. 301 Similarly, the conclusions I have come to would invariably result in my revoking the Commissioner's order without consideration of such other matters as the procedural deficiencies Mr Howell has identified in this case. That said, in deference to the parties detailed submissions on this subject, I would make the following observations and findings. Issues of Procedural Unfairness 302 As these proceedings are in the nature of a fresh and independent review of the basis for the s 173 order, (see par 9) Mr Howell correctly acknowledged that SC Gilmour had now received all of the relevant information which was necessary for him to properly and thoroughly prepare his defence of the allegations which were made against him. 303 Ms Nomchong submitted that as these proceedings were in effect a de novo hearing and because SC Gilmour now had had an opportunity to thoroughly put all matters he wished to put in these proceedings, that any claims of procedural unfairness in the Police Force's investigation and decision making, related to the making of the s 173 order, were not relevant, or at the very least, would not have prejudiced his ultimate defence advanced in these proceedings. With respect, I must disagree. If this was so, then the statutory requirements of ensuring procedural fairness in s 173 reviews, or indeed in any disciplinary process, including dismissals, would have no work to do. An employer could merely overcome any procedural deficiencies in the process by rectifying them in a second review by this Commission. Such a proposition is obviously untenable and contrary to all well settled authority. With that said, it is my view that the investigative process, as revealed in the uncontested evidence in this case, was so infected by procedural deficiencies as to contaminate the process and make the ultimate result for SC Gilmour harsh, unreasonable and unjust. These deficiencies include the following and are not ranked in any priority order. 304 Firstly, Supt Middlemiss was the ultimate decision-maker, under delegated authority of the Commissioner of Police, who made the order pursuant to s 173 of the Act on 5 April 2008. Significantly, before doing so, there are mandatory requirements on the decision-maker under s 173(5)(c) of the Act 'to take into consideration any written submissions received from the police officer in response to the notice'. However, in a startling and brutally frank admission found in her statement in these proceedings, Supt Middlemiss said that after becoming aware of the CMT recommendation in January 2007, she had 'wanted an outcome where Kim Gilmour would be transferred out of the Dog Unit'. Accordingly, it is very clear that the decision-maker had made up her mind about what outcome she wanted from the investigation, not only before the investigation was completed, but before SC Gilmour was given a fair and proper opportunity to respond to the investigator's findings and to the Show Cause Notice. This was patently unfair. Supt Middlemiss' determination to secure the outcome she wanted when, in fact, she was the only person who could ensure it happened, was contrary to the principles of procedural fairness and, in my opinion, was in plain breach of s 173(5)(c) of the Act. This is self evident because Supt Middlemiss could not have sufficiently considered, or at all, SC Gilmour's reply of 1 February 2008, because her mind was made up long before and nothing he could have put would have (and didn't) alter her position. 305 Mr Howell's reliance on Von Doussa J, in Sutcliffe v General Motors-Holden's Automotive Limited (1998) 80 IR 142 at 161, is entirely apposite to these circumstances, and I quote the following passage from that decision: Further, the evidence of both Mr Fox and Mr Brown strongly suggests that they had each decided, on seeing the film, that Ms Sutcliffe had been guilty of serious and wilful misconduct, and that the interview process was merely a matter of form and had to be gone through. If the purported opportunity extended to an employee under s 170DC to defend himself is no more than a ritualistic exercise by the decision-maker who has a closed mind, no real opportunity is extended to the employee. An employee does not receive an opportunity to defend himself unless the decision-maker before whom he presents his defence has a mind that is still open: see de Smith , Judicial Review of Administrative Action (5th ed, 1995), p 505. 306 What is even more disconcerting is that Supt Middlemiss' determination to obtain the only outcome she wanted, was against a background where the CMT had recommended that SC Gilmour receive a Commander's Warning and a three month CMP, and where this view was endorsed by a second review of Insp Hinds' investigation by Det Insp Jenkins. While I acknowledge that both these outcomes were recommendations only, I consider Supt Middlemiss' rejection of the recommendation to be entirely partisan and without foundation. She merely said that she didn't consider the penalty was sufficient and it had not taken account of the uncompleted investigation by Insp Freeman. (I note that this investigation ultimately found SC Gilmour had 'no case to answer' and therefore should not have influenced the outcome at all.) While I accept that the IRP (of which Supt Middlemiss was a member) recommended a reduction of increment and disciplinary transfer on 14 August 2007, I believe Supt Middlemiss had a predetermined outcome of what she wanted and nothing was going to change her mind. That being so, she should not have participated in the IRP's deliberations. I think it also relevant to note that Supt Middlemiss did not independently interview any of the persons involved in the allegations. In my judgement, Supt Middlemiss' predetermined view was such a serious denial of procedural fairness towards SC Gilmour, that it would be sufficient, without anything else, for the Commission to safely conclude that the s 173 order was harsh, unreasonable and unjust. 307 Secondly, in my opinion, it was entirely inappropriate for Insp Hinds to have conducted the investigation. It was not disputed that he and SC Gilmour had had past disagreements about dog training methods and procedures. Moreover, Insp Hinds was actually directly involved in one of the allegations; that concerning Tyson, where he and SC Gilmour had disagreed about whether the gun steadiness test should be conducted. SC Gilmour was justified in raising concerns about Insp Hinds participating and indeed, the CMT had accepted these concerns by appointing Insp Jenkins to conduct a second review. In addition, on his own admission, Insp Hinds had no training qualifications or experience in the handling and training of Police dogs. 308 Thirdly, two serving police officers SC Collier and SC Martin were said to be present at two of the three incidents, the subject of the allegations. Neither of them were interviewed by Insp Hinds, nor did they give evidence in these proceedings. Unsurprisingly, Insp Jenkins concluded in his second review 'If anything needs to be looked at in review, I would suggest the interviewing of SC Chris Martin'. It was said that the reason that he wasn't interviewed was because he was on long term sick leave. I do not accept this is a sufficient explanation. He was at the relevant time, a serving officer and, at the very least, could have been approached to give his version of what happened in the Tyson incident. In addition, there was no explanation as to why SC Collier was not interviewed. 309 Fourthly, Mr Howell strongly criticised the delay SC Gilmour had to endure between the commencement of the investigation (June 2006) and the issuance of the s 173 Show Cause Notice (January 2008). I have no doubt that the delay caused him stress and anxiety. In my view, such a delay itself was totally unreasonable. 310 While I accept that there are a number of unavoidable circumstances and unusual complications associated with this matter, which might take it out of the ordinary (in Police Force terms), it seems extraordinary to me that an investigation of this kind would take over one and a half years. There are at least two inexplicable and unexplained gaps of inactivity which exacerbated this delay. Firstly, SC Gilmour was not interviewed for over four months from the commencement of the investigation in June 2006 to 22 November 2006. This was notwithstanding he was told it would be in three to four weeks after he made an inquiry on 2 August 2006. Secondly, from the date Insp Hinds handed his report to Supt Middlemiss (11 January 2007), there is a period of a year before the issuance of the Show Cause Notice of the proposed order. Even putting aside the legislative requirements relevant to the process, I consider that such delays are completely unacceptable. I do not accept the excuse that it took five months, from the date of the IRP's decision (14 August 2007) to the issuance of the Show Cause Notice (10 January 2008) to find a LAC willing to accept SC Gilmour. In addition, I would conclude, as did the second reviewer, Insp Jenkins, that SC Gilmour was entitled to be told of the progress of the investigation and the reasons for the delays. There can be no doubt that he was stressed, upset and anxious about the delay in concluding the investigation, particularly in circumstances where he had been transferred from a specialised activist role he had been in for many years, to one which he regarded as 'mind-numbing' and boring. To my mind, this is a case which falls squarely within the concerns I raised in Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176, and with those expressed by his Honour, the President, in Burrows v Commissioner of Police (see paras 17 and 18). It was manifestly unreasonable and rendered the s 173 order unreasonable. 311 Fifthly, at no time from the commencement of the investigation until he was interviewed by Insp Hinds, was SC Gilmour given details of the allegations against him. All he knew was that it concerned cruelty to dogs. Obviously, he had no opportunity to review his training records, given no time to recollect the incidents or otherwise appropriately prepare for the interview. Given that he had conducted numerous and varied assessments of puppies and dogs over many years, and was faced with 15 allegations (some dating over 12 months earlier), it is little wonder that he would have had difficulty recalling particular dogs and individual assessments on certain days. In my view, this was a gross denial of natural justice. In addition, SC Gilmour didn't even know a second review had been undertaken, let alone been given an opportunity to put his position to that review. 312 Sixthly, it is difficult to know what weight Supt Middlemiss gave to the issues surrounding SC Gilmour's attitude and demeanour towards other staff, particularly the kennel attendants. It is plain that she was well acquainted with SC Gilmour's accepted deficiencies in this regard. However, in my opinion, it is a reasonable inference to draw that Supt Middlemiss did have regard to these matters when she made the s 173 order. Indeed, from the tenor of her evidence, she could hardly be said to be favourably disposed towards him. This is exemplified by her comment that she had 'grave concerns about the applicant's lack of ability, knowledge and skill to undertake the core functions of a Police Officer'. Unsurprisingly, SC Gilmour took great offence to this comment. I consider his offence to be justified. None of these concerns formed part of the grounds for the s 173 order and obviously SC Gilmour was given no opportunity to refute them or otherwise defend his position and reputation. Accordingly, to the extent these matters intruded into the decision making process, it was both wrong and irrelevant to the actual allegations made against him. 313 In addition, I am further satisfied that SC Gilmour was not provided, in a timely fashion, with a copy of all the documents relied upon by Supt Middlemiss in issuing the s 173 notice in accordance with the Police Force's own policy. He was not told in the Notice what accepted practices and procedures he was alleged to have breached, or in what way he had departed from them. In the absence of standardised training methods and procedures, it was perfectly understandable that he would seek the views of his fellow trainers of what were the usual practices and procedures at the Dog Unit. 314 Having regard for the breaches of the mandatory statutory procedures and the other procedural deficiencies I have referred to above, I am satisfied that the Commissioner's s 173 order was beyond power and was otherwise unreasonable. Accordingly, the Commission is able to properly conclude that SC Gilmour's case must succeed on both substantive and procedural grounds. 315 That said, there is a mandatory obligation on the Commission, in consideration of this matter, to have regard to both the public interest and the interests of the police officer, noting that neither wing has priority over the other; see s 175(4). However, I concur with Mr Howell's submission that there is a significant overlap in the interests of SC Gilmour and the public interest such as to starkly demonstrate that the weight is overwhelmingly in his favour. 316 Such matters include the following: Firstly, I believe that there is an obvious public interest consideration in the Police Force not losing the significant knowledge, skills, experience and expertise of SC Gilmour as a long standing police dog trainer. That SC Gilmour possesses such skills and experience was not really put in doubt during these proceedings and, in fact, all of his fellow trainers attested to his experience and knowledge as a police dog trainer and assessor. Police dog training is a valuable and specialised field of policing and, in my opinion, it would be a great shame if someone of SC Gilmour's experience was lost to it. 317 Secondly, there is no doubt that SC Gilmour considers the allegations against him to be a smear on his professional reputation and have caused him great stress and anxiety. I do not cavil with how he must feel after the long and sorry history of this matter. As the Commission has found all of the allegations not to be proven, there is both a public interest and personal interest in SC Gilmour being publicly cleared of any wrongdoing so that this smear does not attach itself to him, in terms of future promotion, and the Police Force more generally. In this latter regard, there is a need to ensure the maintenance of the standing, integrity and reputation of the Police Force and the Police Dog Unit, in particular, which only a properly considered fresh and independent review of the allegations has been able to achieve. 318 Thirdly, it will be plain from my critical comments about the investigation of the allegations and the delay it took to conclude the investigation, that there must be a recognition by the Police Force that it needs to conduct its disciplinary processes in a fair, transparent and expedient way. A failure to do so will engender a lack of confidence amongst its officers and the wider community. It behoves the Police Force to treat its own employees with the dignity and fairness that all employees expect and deserve. There could hardly be a greater public interest consideration than this. 319 Fourthly, as to SC Gilmour's direct personal circumstances, I consider that the financial penalty, its effect on his superannuation at his age and years of service and the indignity of being transferred out of a specialist area of policing which he loved to a desk job, was a grossly disproportionate response. It would seem the CMT itself did not regard transfer and loss of increment as an appropriate penalty. Appropriate relief to be ordered 320 Mr Howell sought the following orders be made by the Commission: 1. The Order be revoked pursuant to s 177(1)(b); and 2. Make either of the following additional orders which we put in the alternative: a. The Commissioner is to immediately return, by way of non-disciplinary transfer, Mr Gilmour into an "available" position as an Operational General Purpose Police Dog Handler within either the Sydney metropolitan or Illawarra area; or b. The Commissioner is to immediately return Mr Gilmour to the position of "Dog Development Officer" occupied prior to the imposition of the Order at his current rank and grade. 321 Given that this is the first occasion the Commission has been asked to make orders under s 177(b) of the Act, I am compelled to make some observations about that subsection. Ms Nomchong neatly described the orders proposed by Mr Howell as the 'otherwise' orders, meaning other than simply revoking the order, the Commission might make alternative orders. There was no challenge to the jurisdiction of the Commission to make the 'otherwise' orders sought by Mr Howell, although Ms Nomchong strenuously submitted the Commission would not do so as a matter of discretion. She contended that extraordinary conditions would have to exist for the Commission to make such an order. With respect, I cannot agree. There is no reference, either explicit or implicit, in the language used in s 177(1)(b) to any requirement for 'extraordinary' conditions to exist before an order sought under this section would be granted. The terms used are 'such other order as it (the Commission) considers appropriate'. The word 'appropriate', in my opinion, mandates to the Commission a very wide discretion to make such orders as is suitable or proper in all the circumstances. It does not require a more onerous test of conditions or raise it to a higher plane of being extraordinary or special. That the Commission has a wide discretionary power under the subsection would seem to be reinforced by the subsequent expansive words used in the section 'whether or not an order that the Commissioner is empowered to make under s 173'. 322 Accepting the synergy between the reviewable order provisions of the Act and Ch 6 Pt 2 of the Industrial Relations Act, it would seem to me that s 177(1)(b) is akin to the re-employment provisions in s 89(2) of the Industrial Relations Act. That section permits the Commission to order the re-employment of a dismissed employee 'in another position that the employer has available and that, in the Commission's opinion, is suitable'. As will be seen, it is evident that the parties conducted their respective cases as to relief on the very points of the suitability, availability and vacant positions in the Dog Unit. Indeed, during the course of argument, the lead authorities on the meaning of 'available' in s 89(2) of the Industrial Relations Act were cited: See Riley v WorkCover Authority (NSW) (2006) 151 IR 396 and IGA Distribution v Moses. 323 As I understood Ms Nomchong's alternative submission, if the Commission finds in SC Gilmour's favour and is minded to revoke the s 173 order, it should do so by making no other orders (the 'otherwise' orders). The practical effect of this approach would be to restore him to the Dog Unit as a Unit Co-ordinator - the position he held immediately before being transferred to Lake Illawarra LAC. It is a position which involves no contact with puppies and dogs or their training and assessment and is largely an administrative role. I note that this position was offered to SC Gilmour in conciliation and remains 'on offer'. For obvious reasons, he has, and continues to reject it. Nevertheless, the Police Force's approach is curious, given Supt Middlemiss' opinion that SC Gilmour's return to the Dog Unit would cause stress and angst for other employees involved in this matter. Presumably she means the kennel attendants, as this view is plainly not shared by SC Gilmour's fellow trainers and supervisors. It is obvious that the Unit Co-ordinator's role would involve significantly more day to day contact with other officers and the kennel attendants, than if SC Gilmour was returned to a position as a General Purpose Dog Handler. 324 With that said, I concede that there is some force to the proposition that SC Gilmour should not be returned to the position of Dog Development Officer, as it is now substantively upgraded to the rank of Sergeant. That is not to say that I consider that SC Gilmour is not eminently qualified and experienced, in practical terms, to fulfil such a role, as he had done so in the relatively equivalent position of Puppy Development Officer in 2005/06; noting, in addition, he did so as an Acting Sergeant. Nevertheless, it seems to me that the 'eggs cannot be unscrambled' in respect to the restructure, such as to make an order which would be inconsistent with the objectives of a restructure, which was completed two years ago. In my opinion, it would be an undesirable and unrealistic outcome of this case. Even so, I would envisage no impediment to SC Gilmour seeking, at some point in the future, to be promoted to Sergeant and applying for the position of Dog Development Officer in the usual way. 325 For present purposes, however, I see absolutely no reason at all, given my findings in this case, why SC Gilmour cannot, and should not, be returned to the Dog Unit as a General Purpose Dog Handler. Using the words of the statute, I consider it 'appropriate' to do so. It is not in dispute that he worked in the position for some nine years and has trained other officers for the position for over 10 years. Despite any new requirements for the position, I cannot accept that they are any more than the requirements for any new officer applying for the position. This is, in no way, how SC Gilmour could be described. My view as to the appropriateness of such an order, is fortified by SC Gilmour's willingness to undertake the necessary medical, psychological and fitness assessments. However, I agree with Mr Howell that it would be inappropriate and unnecessary for him to be interviewed for the position; inappropriate because Supt Middlemiss and Insp Hinds would ordinarily be involved in the interview; and, unnecessary because he has demonstrated, by real experience in the field, that he is more than capable of doing the job. Moreover, this latter view is supported by the references from his fellow trainers and supervisors, namely Sgt Mayer, SS Williamson and AS Wright. The question then becomes not whether there are any 'vacant' positions, but whether there are any 'available' positions. The distinction was referred to in IGA Distribution v Moses. In any event, I consider that there are both 'available' and 'vacant' positions for General Purpose Dog Handlers. The only evidence of the extent of any such vacancies is that of Insp Hinds who said that as of September 2008, there were 30 current dog handlers in an approved strength of 40. No evidence of the current position is available; but it is reasonable to assume that given the number of strength positions, that vacancies would frequently arise. As it is also highly likely there are current vacancies, I see no operational impediment to SC Gilmour returning as a General Purpose Dog Handler. I make two further observations: firstly, given the likelihood of current vacancies and with SC Gilmour's experience and knowledge, any suggestion that SC Gilmour would be displacing other more meritorious applicants for the positions is, to my mind, unfounded and nonsensical. 326 Secondly, there is no cogent or valid reason why the 'grandfathering' arrangements applying to other officers living outside the Sydney Metropolitan area, should not apply to SC Gilmour. Indeed, it might be justly said that he has more of a claim to the 'grandfathering' concession than others, given his previous 18 years of service in the Dog Unit. Summary of Findings 327 I propose to summarise my findings in this matter as follows: 1. The Commission finds that: a) the allegations against SC Gilmour in respect to the puppies incident are not sustained; b) the allegation against SC Gilmour in respect to the Roscoe incident is not sustained; and c) the allegation against SC Gilmour in respect to the Tyson incident is not sustained. 2. It follows that SC Gilmour was not guilty of any misconduct or unsatisfactory performance in respect to the allegations subject of the s 173 order made by Supt Middlemiss on 5 April 2008. 3. Pursuant to s 174(1) of the Act, I find that the s 173 order was beyond power. 4. I find that the mandatory requirements of s 173(5) of the Act were not complied with and would also render the s 173 order as beyond power. 5. SC Gilmour was denied procedural fairness as detailed in paras 302 to 313 of this decision. 6. The denial of procedural fairness to SC Gilmour would have also rendered the s 173 order as harsh, unreasonable and unjust in accordance with s 174(1) of the Act. 7. Orders should be made to: a) revoke the s 173 order; b) immediately restore SC Gilmour to the position of General Purpose Dog Handler within the Dog Unit; c) require SC Gilmour to undertake the necessary medical, psychological and fitness assessments for the position; and d) ensure that there shall be no requirement for SC Gilmour to be interviewed for the position. ORDERS 328 Pursuant to s 177(1)(b) of the Police Act 1990, the Industrial Relations Commission of New South Wales makes the following orders that: 1. The order of reviewable action made under s 173(2) of the Act, by Detective Superintendent Julie Middlemiss, Commander, Dog Unit, State Protection Group on 5 April 2008, in respect to Senior Constable Kim Gilmour, is revoked; 2. The Commissioner of Police is to immediately return Senior Constable Kim Gilmour, by way of a non disciplinary transfer, into an available position as an Operational General Purpose Dog Handler within either the Sydney Metropolitan or Illawarra regions; 3. Senior Constable Kim Gilmour shall undertake the necessary medical, psychological and fitness assessments for the position of Operational General Purpose Dog Handler, but shall not be required to be interviewed for the position; 4. These orders shall take effect this day, 30 April 2009; and 5. These proceedings under s 174 of the Police Act 1990 are concluded. Peter J Sams, AM Deputy President - 98 - 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.