Industrial Relations Commission of New South Wales CITATION: Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86 PARTIES: Alyson Reid-Frost (Applicant) Commissioner of Police (Respondent) FILE NUMBER(S): IRC 814 of 2008 CORAM: Boland J President CATCHWORDS: POLICE - Removal of police officer - Removal held to have been harsh, unjust and unreasonable on procedural grounds - Appeal - Held on appeal procedural deficiencies found to have existed at first instance, of themselves, did not constitute a proper foundation upon which a determination could be made as to whether the removal was harsh, unjust or unreasonable - Appeal upheld - Matter remitted for retrial - Consideration of merit issues on remittal - Allegations against police officer regarding conduct, integrity, performance and competence - Allegations that over a lengthy period police officer engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct - Allegation that police officer demonstrated an unwillingness or inability to improve her performance, conduct and competence - Allegation that police officer failed to accept any guidance or assistance from her mentor and had an attitude that was aggressive and dismissive - Allegation that police officer worked in secondary employment that was not authorised or approved - Public interest and interests of police officer considered - Held applicant demonstrated an unwillingness to conform to standards of conduct and performance required in a disciplined force - Held applicant's attitude, particularly toward superior officers, was unacceptable - Held removal of the applicant from the Police Force was not harsh, unjust or unreasonable - Application for relief dismissed LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Alexander v Commissioner of Police [2009] NSWIRComm 3 Commissioner of Police v Reid-Frost [2010] NSWIRComm 2 Cook's Construction Pty Ltd v Brown [2004] NSWCA 105; (2004) 49 ACSR 62 Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 CASES CITED: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 Paino v Paino [2008] NSWCA 276 Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 Reid-Frost and Commissioner of Police [2009] NSWIRComm 43 Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 HEARING DATES: 20 and 21 May 2010 DATE OF JUDGMENT: 7 July 2010 Mr D Nagle of counsel with Mr N Keats, solicitor (Applicant) W G McNally Jones Staff Lawyers LEGAL REPRESENTATIVES: Mr M J Kimber SC with Mr A Searle of counsel (Respondent) Bartier Perry Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Wednesday 7 July 2010 Matter No IRC 814 of 2008 ALYSON REID-FROST AND COMMISSIONER OF POLICE Application by Alyson Reid-Frost under section 181E of the Police Act 1990 for review of an order of the Commissioner of Police DECISION [2010] NSWIRComm 86 1 On 15 May 2008, the Commissioner of Police removed Detective Senior Constable Alyson Reid-Frost ('DSC Reid-Frost' or 'the applicant') from the NSW Police Force, acting in accordance with Div 1B, Pt 9 of the Police Act 1990. DSC Reid-Frost had been a member of the NSW Police Force for over 11 years and had progressed to her present rank. 2 DSC Reid-Frost sought a review of the Commissioner's decision to remove her on the grounds that the removal was harsh, unreasonable or unjust. In Reid-Frost and Commissioner of Police [2009] NSWIRComm 43, a decision given on 3 April 2009, Marks J found that the removal of the officer was harsh, unreasonable and unjust and ordered her reinstatement with payment for lost remuneration. 3 The Commissioner of Police appealed the decision of Marks J and a stay of his Honour's decision was sought and granted. In Commissioner of Police v Reid-Frost [2010] NSWIRComm 2, the Full Bench (Walton J, Vice-President and Kavanagh J; Haylen J dissenting) found that Marks J had erred. In this respect, the majority formed a view that the procedural deficiencies found by Marks J, of themselves, did not constitute a proper foundation upon which a determination could be made as to whether the removal was harsh, unjust or unreasonable. 4 The majority observed that whilst the Full Bench would usually endeavour to reconsider the matter for itself so as to avoid the consequences of a new trial, there were significant areas of contest, which had not been the subject of findings by the trial judge in relation to merit. The majority noted that the case was argued before the Full Bench, 'effectively on technical grounds, only peripherally canvassing the merits of the case when it was necessary to pursue the challenges to the decision at first instance based on errors of law'. 5 Consequently the matter was remitted for hearing by a judge other than Marks J. In remitting the matter, the majority stated: [61] Given the history of this matter, however, we do not propose to simply remit the matter for a retrial. The retrial should proceed upon the basis of the record of the proceedings before Marks J and, by leave, with any further evidence admitted by the trial judge. [62] By this approach we have in mind that the proceedings would be essentially resolved upon the basis of the evidence before Marks J and any fresh evidence (with leave only being granted sparingly). [63] We note, in this respect, that Marks J refused an application by the Commissioner at first instance to adduce evidence for which no notice had been given under s 181G(1)(f)(i). This refusal constituted a ground of appeal. It has been unnecessary for us to deal with that matter given the basis upon which we have determined the appeal, but we agree with the conclusion reached by Haylen J that there was no error in the exercise of his Honour's discretion in that regard. ( Marks J did not deal with the question of leave under s 181G(1)(f)(ii), but this may have also represented a proper basis to refuse the admission of the subject evidence.) [64] We should not be taken (by the aforementioned provision for the receipt of fresh evidence by leave) as suggesting that that rejected evidence (formerly sought to be adduced by the Commissioner) should now be admitted. There may well be ample grounds, given his Honour's decision, to refuse leave in the remitter proceedings. Similarly, we should not be taken, by our approach, to have accepted that there has been a proper basis demonstrated for the respondent to adduce evidence regarding her engagement with the Police Force after the refusal of the stay application. Leave may well, however, be appropriate to be granted in other circumstances, such as fresh medical or psychiatric evidence regarding the respondent (and any evidence in reply). [65] We consider that the remitter proceedings should be given expedition and, for these reasons, we do not consider that the matter should be reallocated to Marks J for hearing. 6 The orders made by the Full Bench were that (at [68]): 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The orders of Marks J made on 3 April and 25 May 2009 are quashed. 4. The matter is remitted for hearing before a Member of the Commission allocated by the President to be dealt with in accordance with this decision and upon a direction made pursuant to s 191 of the IR Act, that the record of the proceedings before Marks J in Matter No IRC 582 of 2009 (sic - IRC 814 of 2008) shall form the record of the review proceedings conducted under s 181E subject to, upon leave, additional evidence being admitted and/or adduced in the proceedings and the proceedings be heard with expedition. 7 The remitter was listed before me for directions when it became evident there was a difference of opinion between the parties as to what the Full Bench had intended as to any rehearing. The applicant submitted the rehearing should be conducted 'on the papers', that is, on the basis of the record of the proceedings before Marks J and, by leave, with any further evidence admitted by the trial judge, such leave being granted only sparingly. The respondent submitted that the Full Bench had 'quashed' the orders of the trial judge but not the decision. Accordingly, there was no proper basis for concluding that there was to be a full rehearing of all issues, including those determined by the trial judge and unchallenged by the parties on appeal. In ruling on the issue on 19 February 2010, the Commission said it intended to proceed upon the basis of the record of the proceedings before Marks J and, by leave, which was to be granted sparingly, admit any further evidence where it was considered appropriate to do so, having regard to any relevant observations in that respect made by the majority. The parties subsequently advised that neither side intended to call any further evidence. Relevant Legal Principles 8 The Police Commissioner has the power to remove an officer where the Commissioner no longer has confidence in their suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. The Commissioner's power in this respect derives from s 181D of the Police Act: 181D Commissioner may remove Police Officers (1) The Commissioner may, by order in writing, remove a Police Officer from the NSW Police Force if the Commissioner does not have confidence in the Police Officer's suitability to continue as a Police Officer, having regard to the Police Officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the Police Officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a Police Officer, and (b) must give the Police Officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the Police Officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the Police Officer from the NSW Police Force. (5) The removal takes effect when the order is made. 9 Section 181E of the Police Act provides for a review of the Commissioner's decision to remove a police officer: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 10 Section 181F lays down the procedure for the Commission to follow in conducting a review of the Commissioner's removal decision: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (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. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)). 11 Section 181G applies certain provisions of the Industrial Relations Act 1996 to the review of the Commissioner's decision to remove an officer: 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 12 In the present case, the Commissioner issued a Notice under s 181D(3)(a) of the Police Act to the applicant on 15 November 2007 identifying two allegations regarding the applicant's unacceptable conduct: Allegation 1: Failure to demonstrate the standards of performance, conduct, integrity and competency expected of a police officer, and failure to meet the requirements of the Remedial Performance Plan and Commissioner's Warning Notice. Allegation 2: Unauthorised secondary employment. 13 The Notice was in the following terms: ALLEGATION 1: FAILURE TO DEMONSTRATE THE STANDARDS OF PERFORMANCE, CONDUCT, INTEGRITY AND COMPETENCY EXPECTED OF A POLICE OFFICER, AND FAILURE TO MEET THE REQUIREMENTS OF THE REMEDIAL PERFORMANCE PLAN AND COMMISSIONER'S WARNING NOTICE. C@tsi P0400595 During 2004, a number of issues were identified regarding your performance, specifically in the areas of record keeping, case management, teamwork and criminal investigation. On 22 November 2004, you were served with a Commander's Warning Notice in relation to certain issues. The Commander's Warning Notice made it clear that: You should clearly understand that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under section 173(2) of the Police Act 1990, or removal under section 181D of the Police Act 1990 On 24 January 2005, you were placed on a Remedial Performance Program ( RPP ). It is alleged that, during the period 1 February 2005 to 27 February 2007, you engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct, as documented in the attached Commissioner's Confidence Submission. It is also alleged that you have failed, over a lengthy period, to demonstrate the standards of conduct, performance and competence expected of a police officer and outlined in your RPP, including in relation to record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision making, and planning and organisation/work management. Policies and Procedures I consider there are grounds on which it could be concluded that you have failed, over a lengthy period, to demonstrate the standards of conduct, performance and competence expected of a police officer and outlined in your RPP, including in relation to record keeping, teamwork skills, and technical and professional skills in the area of criminal investigation and prosecution. I also consider that there are grounds on which it could be concluded that you have failed, over a lengthy period, to demonstrate the Investigator Practitioner Competencies set out in JSR4. These include: • Technical Professional Knowledge • Decision Making • Teamwork/Collaboration • Customer Service • Planning & Organising/Work Management I also consider that there are grounds on which it could be concluded that you have demonstrated an unwillingness, or inability, to improve your performance, conduct, and competence to required levels, and that you have, over a lengthy period, displayed conduct and attitude inconsistent with an ongoing career in policing. On this basis, there appear to be ground on which it could be concluded that you have failed to meet the standards set by the NSW Police Code of Conduct and Ethics – 'Professional Competency and Development' (as in operation until October 2006) and the NSW Police Code of Conduct and Ethics – 'Statement of Values' and 'Standards of Professional Conduct' (as applying from October 2006 onwards). The NSW Police Code of Conduct and Ethics – 'Professional Competency and Development' (as in operation until October 2006) stated: Professional competency and development The New South Wales Police is responsible for the training and development needs of its officers. Your (sic) are responsible for maintaining your professional competency and development. Although New South Wales Police recognises honest mistakes do happen, you should not act outside your level of competency and authority. If practicable, you have a duty to consult your colleagues or supervisors if in doubt about how you should exercise delegated powers or fulfilled duties. The NSW Police Code of Conduct and Ethics – 'Statement of Values' (as applying from October 2006 onwards) provides for the following values: • Excellence – Having the highest professional standards and integrity • Trust – promoting community faith and confidence in their police • Accountability – acknowledging ownership and being answerable for your actions • Leadership – acting as a role model for the community and your colleagues The NSW Police Code of Conduct and Ethics – 'Standards of Professional Conduct' (as applying from October 2006 onwards) states: An employee of the New South Wales Police must: ... 2. act with care and diligence when on duty ... 4. treat everyone with respect, courtesy and fairness 5. comply with any lawful and reasonable direction given by someone in the New South Wales Police who has authority to give the direction ... There also appear to be grounds on which it could be concluded that you did not display the highest standards of integrity in the manner in which you completed the records for your work on 10 March 2005 without initially recording yourself as having taken T.O.I.L. On this basis, there appear to be grounds on which it could be concluded that you have breached the NSW Police Code of Conduct and Ethics – 'Statement of Values' (as in force at the relevant time). It stated: Each member of the New South Wales Police is to act in a manner which: • Places integrity above all… ALLEGATION 2: UNAUTHORISED SECONDARY EMPLOYMENT C@tsi P0703547 On 29 March 2007, you made an application for secondary employment. On 6 July 2007, your application for secondary employment was declined. At not stage were you informed that your application for secondary employment had been approved. You admit that, during the period 4 June 2007 to 6 July 2007, you engaged in secondary employment as a credit controller. You further admit that this secondary employment was not authorised. 14 There was annexed to the Notice a submission which was referred to in the proceedings as the 'Commissioner's Confidence Submission'. The submission was said to supplement the matters referred to in the Notice and that any response should take into account the material in that submission. The submission was extensive, consisting of some 223 pages of material in all. 15 As Marks J noted at [14] of his Honour's decision: [14] After service of the Notice and the accompanying submission, there was correspondence between solicitors acting for the applicant and the Commissioner's office seeking further documents and seeking an extension of time in which the applicant might respond. A number of extensions of time were granted by the Commissioner's office, the last extension expiring on 16 April 2008. On 17 April 2008, the applicant's solicitor requested a further two days to respond, that is until 18 April 2008. On that day, the Commissioner considered the Notice and the attached submission and determined that he had lost confidence in the applicant and directed that an order be prepared removing her from the police force. Before the order was prepared and signed, the applicant's solicitor provided a detailed written response to the Notice which was received by the Commissioner's office on 21 April 2008. The order removing the applicant from the police force was signed by the Commissioner on 24 April 2008. [15] After receipt of correspondence from the applicant's solicitors requesting that the order be revoked, an officer within the Commissioner's Professional Standards Command prepared a memorandum to the Commissioner recommending that he consider the submission made by the applicant's solicitor on behalf of the applicant and determine whether he wished to revoke the previous removal order dated 24 April 2008. The recommendation together with the original Notice and the attached submission was considered by the Commissioner on 1 May 2008. The Commissioner wrote on the foot of the recommendation document: "I have taken into consideration the attached response from this officer. Order to stand." This was then dated 1 May 2008. [16] I should add for completeness that the applicant's response to the Notice consisted of lengthy written submissions containing altogether 254 paragraphs of closely typed material. Those submissions dealt in great detail with the large number of incidents that were referred to in the Commissioner's submission document. The applicant's submissions also contained attachments in the nature of medical reports, character references and the like. [17] The Commissioner's order removing the applicant from the police force, consequent upon the decision made by him on 1 May 2008, was signed on 15 May 2008. 16 The Commissioner provided to the applicant a 'Statement of Reasons' for his decision to remove the applicant from the NSW Police Force: Detective Senior Constable Alyson Reid-Frost STATEMENT OF REASONS I am required to make a determination under section 181D(1) of the Police Act 1990, in respect of whether I have confidence in you as a member of the New South Wales (NSW) Police Force. In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990, the material contained in the Commissioner's Confidence Submission, which were served on you on 22 November 2007 and your response to my Notice. I have given careful consideration to all the material that has been presented to me in this matter and provide the following reasons for my determination: The following grounds, as set out in my Notice to you, refer to your conduct, integrity, performance and competence. During 2004, a number of issues were identified regarding your performance, specifically in the areas of record keeping, case management, teamwork and criminal investigation. On 22 November 2004, you were served with a Commander's Warning Notice in relation to certain issues. The Commander's Warning Notice made it clear that: You should clearly understand that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under section 173(2) of the Police Act 1990, or removal under section 181D of the Police Act 1990 . You declined to sign for this document however you acknowledged the contents and the implications. You were informed of your position in regard to possible further management action. On 24 January 2005, you were placed on a Remedial Performance Program. The Remedial Performance Program states, among other things: Failure to complete the outcomes as described in this Remedial Performance Program may lead to consideration of reviewable action in accordance with Section 173(2) of the Police Act (1990) or termination in accordance with Section 181D of the Police Act 1990. You also declined to sign this document, stating that you did not agree with the contents. The Performance Program was provided to you and you were appointed a mentor under the Remedial Performance Program. During the period 1 February 2005 to 27 February 2007, you engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct. You continued to fail, over a lengthy period, to demonstrate the standards of conduct, performance and competence expected of a police officer and outlined in your Remedial Performance Program, including in relation to record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision making, and planning and organisation/work management. I also consider that you have failed, over a lengthy period, to demonstrate the Investigator Practitioner Competencies set out in JSR4. These include: • Technical Professional Knowledge • Decision Making • Teamwork/Collaboration • Customer Service • Planning & Organising/Work Management Furthermore, I consider that you have demonstrated an unwillingness, or inability, to improve your performance, conduct, and competence to required levels, and that you have, over a lengthy period, displayed conduct and attitude inconsistent with an ongoing career in policing. You have failed to meet the standards set by the NSW Police Code of Conduct and Ethics - 'Professional Competency and Development' (as in operation until October 2006) and the NSW Police Code of Conduct and Ethics - 'Statement of Values' and 'Standards of Professional Conduct' (as applying from October 2006 onwards). The NSW Police Code of Conduct and Ethics - 'Professional Competency and Development' (as in operation until October 2006) stated: Professional competency and development The New South Wales Police Force is responsible for the training and development needs of its officers. You are responsible for maintaining your professional competency and development. Although New South Wales Police recognises honest mistakes do happen, you should not act outside your level of competency and authority. If practicable, you have a duty to consult your colleagues or supervisors if in doubt about how you should exercise delegated powers or fulfilled duties.' The NSW Police Code of Conduct and Ethics - 'Statement of Values' (as applying from October 2006 onwards) provides for the following values: • Excellence - having the highest professional standards and integrity • Trust - promoting community faith and confidence in their police • Accountability - acknowledging ownership and being answerable for your actions • Leadership - acting as a role model for the community and your colleagues The NSW Police Code of Conduct and Ethics - 'Standards of Professional Conduct' (as applying from October 2006 onwards) states: An employee of the New South Wales Police must: 2. act with care and diligence when on duty ... 4. treat everyone with respect, courtesy and fairness 5. comply with any lawful and reasonable direction given by someone in the New South Wales Police who has authority to give the direction You did not display the highest standards of integrity in the manner in which you completed the records for your work on 10 March 2005 by not initially recording yourself as having taken T.O.I.L. You have breached the NSW Police Code of Conduct and Ethics - Statement of Values (as in force at the relevant time). It stated: Each member of the New South Wales Police is to act in a manner which: • Places integrity above all… In your written response you provide details of your experience with the New South Wales Police Force and the various locations where you have performed duties. I note that you refer to an incident in July 1997 when you were a Probationary Constable and were required to report the conduct of another officer. I note that you also state that as a result of you reporting the conduct of this officer it ' was never confidential and unfortunately has followed you, in various forms, from station to station .' Aside from this matter you describe in detail each occurrence that encapsulates your failure to complete the Remedial Performance Program. You describe your assigned mentor Detective Sergeant Evatt as being abusive and intimidating. You dispute the evidence of poor performance provided by Detective Sergeant Evatt. You also dispute the comprehensive account provided by Sergeant Evatt about your failure to meet the requirements of the performance agreement. In regard to your absence from work on 15 February 2005 I note and accept your explanation that you were admitted to Gosford District Hospital with chest pains. In regard to your inadequate preparation of witness statement in mid to late February 2005 you believe that Detective Sergeant Evatt elevated his involvement in this matter in a contrived attempt to have you appear in bad light. It appears that you were on sick leave during this time and Detective Sergeant Evatt forwarded outstanding statements to the defence and followed up various inquiries and requests for information to assist the production of papers as required by the court. His involvement in this matter appears to me to be an essential requirement. Throughout your involvement with your mentor while you were on a performance program I can see no evidence that you fully accepted any guidance or assistance. I believe that your attitude was aggressive, dismissive and you were unable to take advice. Evidence of your dismissive behaviour is also provided by your Commander and other senior officers who sought to assist you. You continue to dispute the facts provided by Detective Inspector Jubelin in his report to the Police Medical Officer. You state that 'Detective Inspector Jubelin's report is erroneous as to fact and unqualified as to opinion'. In addition to this, you criticise a report provided by Dr Kirby, the Police Medical Officer. You provide that Doctor Kirby's report is based on false, misrepresented and erroneous material. I do not believe that the reports from this senior officer and the medical practitioner are misdescriptions and exaggerations of the facts as you describe. Your response to my Notice has only provided further evidence of your inability to be consulted or to accept advice and directions. You have failed to comprehend the importance of the Commander's Warning Notice served on you in November 2004 and you have failed to meet the requirements of the Remedial Performance Program. On 29 March 2007, you made an application for secondary employment. On 6 July 2007, your application for secondary employment was declined. At no stage were you informed that your application for secondary employment had been approved. In your response to my Notice you admit that, during the period 4 June 2007 to 6 July 2007, you engaged in secondary employment as a credit controller. You further admit that this secondary employment was not authorised. By commencing unauthorised secondary employment you have breached the New South Wales Police Secondary Employment Policy and Guidelines which state: "Employees are not permitted to commence secondary employment until such time as they are formally advised that the application has been approved." I have taken into account all the details in your written submission in response to the grounds set out in my Notice provided by your legal representative. I can see no reasons of mitigation or explanation for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act: professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer. 17 The matters that constituted the basis of the Commissioner's decision to remove the applicant may be summarised in the following terms: 1. During 2004, issues were identified regarding the applicant's performance, specifically in the areas of record keeping, case management, teamwork and criminal investigation. 2. 22 November 2004 - the applicant was served with a Commander's Warning Notice ('CWN'), which she declined to sign. 3. 24 January 2005 - the applicant was placed on a Remedial Performance Program ('RPP') (which the applicant declined to sign) and was allocated a mentor. 4. Between 1 February 2005 and 27 February 2007 the applicant engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct. 5. That 'over a lengthy period' the applicant continually failed to demonstrate 'the standards of conduct, performance and competence expected of a police officer …' in particular regarding 'record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision-making, and planning and organisation/work management'. 6. That 'over a lengthy period' the applicant failed to demonstrate certain competencies related to an investigator, namely 'technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management'. 7. The applicant demonstrated an 'unwillingness or inability, to improve her performance, conduct and competence'. 8. The applicant failed to meet certain standards described in a police code of conduct and ethics. 9. 10 March 2005 - the applicant failed to demonstrate standards of integrity by not initially recording taking time off in lieu ('TOIL'). 10. The applicant inadequately prepared witness statements in mid to late February 2005 with the Commissioner finding that Detective Evatt's involvement was necessary and he did not elevate his involvement to cast the applicant in a bad light. 11. Throughout the RPP period the applicant failed to accept any guidance or assistance from her mentor and had an attitude that was aggressive and dismissive. 12. The applicant criticised both Detective Inspector Jubelin in his report to the Police Medical Officer and the findings of Dr Kirby, the police medical officer. The Commissioner accepted these reports. 13. The applicant's response to the CWN provided further evidence of an inability to be consulted or to accept advice and directions. She failed to comprehend the importance of the CWN served on her in November 2004 and failed to meet the requirements of the RPP. 14. The applicant worked in secondary employment as a credit controller from 4 June 2007 to 6 July 2007. This secondary employment was not authorised or approved. 18 The Commission's task in these proceedings is to determine whether the Commissioner's decision to remove the applicant was harsh, unreasonable or unjust. In undertaking that task the Commission is required to consider, in the following order: (i) the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force; (ii) the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and (iii) the case presented by the Commissioner in answer to the applicant's case. 19 In carrying out its task, the Commission as presently constituted is doing so in a somewhat unusual context. Marks J has already heard the applicant's claim for relief. His Honour determined, on procedural grounds, that the dismissal was harsh, unjust and unreasonable. Whilst the Full Bench found the trial judge did not make a decision as to the 'merits' of the respective parties' cases (save in some limited respects), his Honour did make a number of significant merit findings and in doing so had the advantage of assessing the reliability and credibility of the witnesses in the proceedings, having seen them give evidence and be cross-examined with respect to it. 20 Given that in this remitter hearing the witnesses are not to be recalled on matters of merit (or otherwise), it is inevitably very difficult to reach fundamentally different conclusions to those reached by Marks J about that oral evidence, given that, as the respondent submitted, such conclusions were undoubtedly substantially based upon the trial judge's assessment of the reliability and credit worthiness of the witnesses. There is no doubt that his Honour's assessment of the credibility and the reliability of the applicant as opposed to that of the witnesses for the respondent, was central to his Honour's consideration of the 'merit' cases pressed by the parties. 21 Although I am not sitting as an appeal tribunal, I consider the appropriate course is that I should accept the trial judge's findings unless I consider they are 'clearly wrong'. I could find no instance where his Honour was clearly wrong in respect of his assessment of the reliability and credit worthiness of the witnesses. 22 In his submissions, the respondent referred to the statutory context in which this matter is required to be determined and the nature of the work and work environment of a police officer. I accept these are important matters to be taken into consideration in proceedings such as these, especially in the context of the requirement placed on the Commission, when considering applications for relief under Div 1C of Pt 9 of the Police Act, to have regard to '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))'. The matters raised bring to light the powers of the Commissioner and obligations on him in managing a disciplined force, the special nature of policing and the obligations imposed on police officers and accepted by them in swearing an oath or affirmation, in carrying out their duty. One will not normally find such special obligations on employees in the private sector, nor in most branches of public sector employment. 23 The matters raised that I consider relevant were as follows: (a) The State and Commonwealth Parliaments of Australia all saw fit, many years ago, to introduce separate, special purpose legislation for the establishment, regulation and management of their respective police forces. In New South Wales that legislation is currently the Police Act 1990, said to be an act "to establish the New South Wales Police Force, to provide for the management of the New South Wales Police Force and for the employment of its members of staff; and for other purposes". (b) The Police Act has the following express provisions of relevance to the Commission's consideration of this matter, namely:- (i) In s3 "Definitions" the term "merit" in relation to a decision of the Commissioner to appoint or recommend for appointment a person to a position in the New South Wales Police Force or rank or grade within a rank of police officer, means: i. "The possession by the person or qualifications determined in respect of the position or rank or grade by the Commissioner, and ii. The aptitude of the person for the discharge of the duties of the position or rank or grade; and iii. The integrity, diligence and good conduct of the person." (underlining added) (c) Section 8 of the Police Act provides, inter alia, that: i. "The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the New South Wales Police Force. ii. The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the New South Wales Police Force." (underlining added) (d) Section 13 of the Police Act provides that an oath is to be taken by persons exercising police functions. The terms of that oath are found in the Police Regulation 2008, as follows: "7 Oath or affirmation of office for police officers (1) The form of the oath required to be taken by a police officer under section 13 of the Act is as follows: I do swear that I will well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until I am legally discharged, that I will cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. So help me God. (2) The form of the affirmation is the same as the form of the oath , except that: (a) the words "solemnly, sincerely and truly declare and affirm" are to be substituted for the word "swear", and (b) the words "So help me God" are to be omitted." (e) Regulation 8 (previously in exactly the same terms as reg 9 in the Police Regulation 2000) provides: " 8 Performance of duties by police officers (1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. (2) In particular, a police officer is required: (a) to serve wherever the officer is duly directed , and (b) to perform such police duty as may be duly directed , whether or not during the officer's rostered hours of duty." (underlining added). (f) Section 64 of the Act bestows a power on the Commissioner to appoint persons (whether by way of transfer or promotion or otherwise) as non-executive police officers and s66(2) requires the Commissioner (other than in the context of promotions) to select the person for any such appointment "who has, in the opinion of the Commissioner, the greatest merit" and, in deciding on such "merit", the Commissioner is required to take into account, inter alia, the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties: see s66(3)(b) of the Act. (underlining added) (g) Section 69(1) of the Police Act bestows a power on the Commissioner, if he considers it to be "in the interest of the New South Wales Police Force to do so", to transfer a non-executive police officer from one "position" to another position: see Commissioner of Police v Skelly [2010] NSWIRComm 18 (Skelly). (h) Part 8A of the Police Act is an exhaustive code dealing with complaints about the conduct of police officers (unless made by the Respondent), with s26 enshrining the right of any person to make a complaint about such conduct. Obviously, the Commissioner must endeavour to manage the Police Force so as to minimise the incidents of such complaints: see also s171(2) of the Act. (underlining added) (i) Part 9 of the Police Act "Management of Conduct within New South Wales Police Force" is divided into two divisions namely Division 1 "Misconduct and Unsatisfactory Performance"; sections 173-181 (dealing with circumstances wherein removal is not seen as appropriate, as discussed fully in Skelly) and Division 1B "Summary Removal of Police Officers in whom Commissioner does not have confidence": s181D. That section relevantly provides in sub-section (1) that: " The Commission may, by order in writing, remove a police officer from the New South Wales Police Force if the Commissioner does not have confidence in the Police Officer's suitability to continue as a police officer, having regard to the police officer's competence , integrity , performance or conduct " (underlining added). It is to be noted that the Police Act contains no other provision that authorises the Commissioner to terminate a police officer's services for poor performance, unsatisfactory conduct or unacceptable attitude etc. 24 As it has been observed, the Police Force is a disciplined force. If a person accepts the role of a police officer one must presume they do so also accepting the obligations that imposes upon them and the levels and standards of discipline that apply. 25 The importance of maintaining police discipline was referred to by Brennan J in Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 at 412: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. 26 These proceedings involve allegations of unacceptable conduct by a police officer over a substantial period of time relating to competence, performance and conduct. It may be distinguished from the 'loss of confidence' removal order cases involving a discrete act(s) of 'misconduct'. As the respondent submitted, it would appear the first such case of its kind to come before the Commission where the Commissioner has lost confidence in a police officer because the officer was allegedly not competent, under-performed and had a poor attitude towards authority. Nevertheless, it cannot be doubted that if his case is made out and the officer has not met the standards required, the Commissioner was entitled to remove the officer. The Commissioner, however, has the onus of proving that he was justified in dismissing the applicant. 27 Whilst I have given some emphasis to the Commissioner's powers, his responsibilities in managing a disciplined force and the strict obligations on a police officer to maintain a high standard of performance, integrity and competence, these are not the only relevant considerations. What must also be weighed in the balance in determining whether a dismissal was harsh, unjust or unreasonable are the interests of the applicant. It has been my experience that very many police officers do not regard what they are doing as just another job, but a calling. And to lose the opportunity of pursuing that chosen career can have a crushing effect on them and their families. That is why, in cases involving a one-off - usually serious - error of judgment by an officer, the Commission might ask itself whether it is truly a case attracting the condign punishment of dismissal or is it an aberration that may be excused in the interests of a valuable, ongoing career and where reinstatement or re-employment can be sustained by the Police Force without causing damage to the Commissioner's authority, to police discipline and public confidence. This is not to establish a new test; it is simply to illustrate how issues of removal and the balancing exercise that must be undertaken might be approached. 28 As I have already stated, this is not a case involving a one-off episode of serious misjudgment. Rather, it allegedly involves an unacceptable course of conduct over a considerable period of time and raises the question of whether the applicant is suited to the work of a police officer and the disciplinary environment that necessarily goes with that role. Nevertheless, after undertaking the tasks laid down in s 181F(1) of the Police Act, one must still carry out the balancing exercise. 2004 Issues 29 During 2004, the applicant's supervisors identified a number of performance issues specifically in the areas of the applicant's record keeping, case management, teamwork and criminal investigation. These issues were addressed in two meetings with the applicant during that year and reference is made to these issues in the applicant's file held in the Employment Management Branch. 30 The contents of the Employment Management Branch file gave some indication as to the background of incidents occurring in 2004, which led the Commissioner to consider them in his statement of reasons. 31 The applicant's file within the Employment Management Branch was tendered into evidence before Marks J. His Honour summarised the content of the file with respect to the applicant's 2004 workplace issues at [143]-[148]. The Employee Management Branch ("EMB") involvement [143] ... The Employee Management Branch file contains some material that predates the applicant's arrival at North Shore LAC. There is a memorandum of 15 January 2004 created by a consultant, Liz Cowie, which summarises material discussed with her by the applicant, who at that stage was stationed as a detective at Surry Hills, and who had just returned from some months of stress leave after being attached to Burwood LAC. The memorandum refers to difficulties encountered by the applicant after a prosecution had been dismissed because she had left a certain document out of a police brief. She was later informed that she would be placed on a "Performance Agreement" as a result of this. The applicant complained about action being taken against her and blamed a more senior officer who should have discovered that the document was missing from the brief when he checked it. She also blamed the prosecutor for not having drawn it to her attention. She was upset that the more senior officer was not to be the subject of any disciplinary action of any kind. There was another incident arising out of a difference of opinion with another detective about which a report had been submitted although she had not been spoken to about that matter. When it was suggested to the applicant that she should consider discussing this matter with her superior officer, she stated that she had no confidence in him and did not feel that speaking to him would achieve anything. She agreed with the suggestion that she should write a report outlining the various issues to which she had referred but stated in addition that she was going to make a complaint to the Ombudsman. [144] A further memorandum dated 20 January 2004 made by Constable Rosemary Roberts reported discussions with other officers concerning the applicant and indicated that she had refused to accept service of a copy of the Performance Agreement referred to above. There is a further report of 6 February 2004 from Constable Roberts of a discussion with a member of the Professional Standards Unit which indicated that the applicant had been "causing a number of problems within the Surry Hills detectives' office, even for the short period that she had been there, approximately two weeks." There was a note that the applicant was to be transferred again to Redfern LAC on a temporary basis. There was a discussion about whether she should be placed on a performance plan or program of some kind. [145] A file note of 12 February 2004 by Constable Roberts of a contact by a member of the Professional Standards Unit indicates that the applicant "had continued to cause problems at Surry Hills LAC" and there was concern that the acting Local Area Commander could no longer manager her appropriately. [146] There is a note of a telephone contact by the applicant to Senior Constable John Foley of 16 February 2004 in which the applicant is recorded as having become "very emotional". She stated that she believed she was being victimised and ostracised with respect to a RPP. There is reference to a psychiatric report, to the fact that the applicant did not want to work at Burwood, and that there were concerns about reprisals against her upon transferring to Surry Hills arising out of a report made by her alleging misconduct by another officer whilst she was on probation. The applicant telephoned Rod Sherring on 17 March 2004. She said that as a result of a complaint made about her handling of a matter, she was to be returned to Burwood LAC from Surry Hills. She said that she would not return to Burwood because of a "harassment issue." There was a discussion about the applicant's obligations under a Performance Management Plan and the matter was to be pursued by other consultants at the EMB who were more familiar with the applicant's circumstances. [147] Further material indicates that attempts were made by members of the EMB to contact senior officers at Burwood LAC. These discussions continued throughout all of April whilst senior officers at Burwood LAC went about completing their enquiries concerning a number of issues involving the applicant. [148] The next notation in the material is dated 2 August 2004. It appears that at that stage, the position at Burwood LAC, with respect to the applicant, had not yet resolved. There were complaints made concerning the applicant that investigations being conducted by the Burwood LAC were still outstanding. At that stage, the applicant had been transferred to Ku-ring-gai LAC where Superintendent Gallagher had reported favourably on her performance there, over the prior 12 weeks. 32 Marks J stated at [162] that the Commissioner sought to have tendered into evidence a number of documents that related to matters that had occurred during 2004 and two matters, which appear to have occurred in October and November 2003. His Honour rejected the tender of this documentation because, he said: [T]he issues which occurred in 2004 were not specifically referred to in any way in the Commissioner's Statement of Reasons, could not therefore have been relevantly relied upon by him, were not included within the Commissioner's Confidence Submission and, in all the circumstances, it would have been unfair and inappropriate to allow these proceedings to have been conducted by reference to these matters. 33 It should be noted that the applicant had been stationed at Hornsby between April and December 2004. Immediately before leaving that station, the applicant had received an email from now Assistant Commissioner Peter Gallagher, which said: Sorry I missed you mate. All the best for your future career. If you need any help or advice, please don't hesitate to call me. Thank you for your help to all my police, especially my young police. Pete. 34 Marks J took the view (at [168]) that the consideration by the Commissioner of the 2004 issues regarding performance in record keeping, case management, teamwork and criminal investigation as reasons supporting removal: [W]ould constitute a prima facie denial of natural justice to the applicant because there was insufficient specificity to allow her to understand what they were and they were not raised with any specificity in the Notice to which the applicant responded. 35 However, it was not denied by the applicant that there were issues in 2004 regarding her performance in record keeping, case management, teamwork and criminal investigation. Indeed, the applicant acknowledged in her evidence such issues did arise. Whilst not much can be made of these matters, the fact that there were issues in 2004 does tend to suggest that such issues were not confined to the period the applicant was at Chatswood and were not limited to her fraught relationships with Detective Sergeant Evatt and Detective Inspector Jubelin. 36 As noted, the applicant did spend a period at Hornsby before moving to Chatswood. In this respect the applicant stated: It is noted that while I joined the New South Wales Police Force in May 1997 I incurred no adverse mention until 2004 when I transferred to Burwood Local Area Command and later attached to Chatswood Local Area Command. In the interim, I performed duty at, among other places, Hornsby under now Assistant Commissioner Gallagher and not only were there no complaints but I was the recipient of complimentary remarks about my performance and dedication to duty. 37 The question was asked of Mr D Nagle, counsel for the applicant, why the applicant had not called Mr Gallagher, who, apparently, had been the applicant's supervisor at Hornsby for five months and who had reportedly stated the applicant was 'progressing well'. Mr Nagle submitted that the applicant did not bear the burden of calling Mr Gallagher. 38 There were only two witnesses for the applicant: herself and Sergeant Gooley. Given the number and quality of the witnesses called by the respondent about the applicant's lack of skills and abilities in certain areas and the numerous complaints made against her, one would have thought that Mr Gallagher's evidence would have been critical to her case. Rather than rely on an email and a second hand statement that Mr Gallagher had said the applicant was 'progressing well', his evidence, if it was to be consistent with the tenor of the email and the 'progressing well' comment, would have been invaluable. There was no explanation as to why Mr Gallagher could not have been called by the applicant other than the applicant did not bear the burden. 39 It was submitted for the respondent that I should draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference that Mr Gallagher's evidence would not have assisted the applicant's case: see Cook's Construction Pty Ltd v Brown [2004] NSWCA 105; (2004) 49 ACSR 62 at [32], per Young CJ in Eq; and Paino v Paino [2008] NSWCA 276 at [74]. I think the respondent is correct. But even if he is not, all I am left with is some indication that at Hornsby the applicant was, according to Mr Gallagher, 'progressing well'. The weight I would be able to place on what is a general comment at best is substantially diminished by the fact I do not know what was the precise working relationship between Mr Gallagher and the applicant, including how close Mr Gallagher was involved in the supervision of the applicant. I do not know whether Mr Gallagher was truly in a position to know how the applicant was performing: was it merely a general impression or the result of a mentoring relationship similar to that with Detective Sergeant Evatt or a supervisory relationship akin to that of Detective Inspector Jubelin? Commander's Warning Notice 40 When the applicant was at Hornsby, she was served with a Commander's Warning Notice ('CWN'), issued by Superintendent C Burn, Commander, Burwood LAC, on 22 November 2004. The background to the CWN was explained by Marks J at [38]-[45]: [38] ... The Warning Notice issued on 22 November 2004 arose out of allegations of unsatisfactory conduct on two occasions and findings that had been made against her as a result of investigations into those matters. [39] The first concerned the circumstances in which the applicant had adopted an interview for another police officer. She had given contradictory evidence about those circumstances, which involved a breach of police procedures. [40] The next matter concerned information which the applicant had given to an investigating police officer arising out of an infringement notice that had been issued with respect to a police vehicle which had exceeded the speed limit on 8 May 2003. Information made available for the purpose of these proceedings, but which was not available to the Commissioner, consisted of a report into this incident by Acting Inspector Coffen dated 30 July 2004. It seems that there were no positive means available to identify who it was that drove the police vehicle on the day in question and at the time that the infringement notice referred to. The applicant was interviewed about the incident more than 12 months after it occurred. Acting Inspector Coffen concluded that it was likely that if a prosecution had been instituted against the applicant "an acquittal was more probable than not." Despite this, on the basis of all of the information gathered by Acting Inspector Coffen, he formed the opinion that there was "a high probability" that the applicant was driving the vehicle at the time. He relied on inconsistencies in information furnished by the applicant, on the fact that she had failed to complete a duty book immediately after the day's duties and that, in his opinion, the explanations given by the applicant as to where she was at the time of the incident and where she had been on the morning of the incident were not plausible or attracted considerable doubt. [41] It was submitted for the applicant that the conclusion reached by Acting Inspector Coffen was logically flawed in that any inconsistencies which he found in information furnished by the applicant and the other matters set out did not necessarily result in a finding that it was the applicant who was the driver on the relevant day. Furthermore, the applicant relied on material which was produced during the course of the hearing of these proceedings which indicated firstly that if any "reviewable action" had been taken by the Police Service against the applicant as a result of this incident, advice had been given by the "legal services representative at the IRP" that "any reviewable action would be seen as harsh and unreasonable at the IRC." Furthermore, there was a file note produced by the Police Service indicating that there were "evidentiary deficiencies in investigation" about this matter. [42] As I have said, none of this material which the applicant asserted must cast some doubt upon one of the bases upon which the Warning Notice was issued was put before the Commissioner for consideration by him when determining to remove the applicant from the Police Service. [43] The final paragraph of the Warning Notice said: "You should clearly understand that continued unsatisfactory conduct and/or performance duties may result in further management action, which may entail consideration of reviewable action under s 173(2), Police Act 1990, or removal under s 181D, Police Act 1990." [44] There was a notation, presumably in the handwriting of Superintendent Burn, the Commander of the Burwood Local Area Command, to the effect that the applicant had "declined to sign for this document. She acknowledged the contents and implication. She understands her position with regard to possible further management action." [45] One of the reasons given by the Commissioner in deciding to remove the applicant from the police force was the fact that she had "declined to sign for this document" whilst acknowledging, however, its contents and the implications for her. 41 At [186] Marks J observed, 'there must be some doubt about the ability of the Commissioner to rely upon the driving incident on 8 May 2003 and the emphasis placed on it in the Commissioner's Confidence Submission documentation.' I assume his Honour was referring to what he said at [42], namely, that none of the material concerning the traffic infringement notice 'was put before the Commissioner for consideration by him when determining to remove the applicant from the Police Service.' Of course, reference was made in the Notice to the CWN and the fact it was issued in relation to 'certain issues', the most prominent being the traffic infringement notice. Moreover, the applicant in the proceedings before Marks J dealt comprehensively with the issue in her evidence. 42 In any event, the Commission as presently constituted is entitled to have regard to the traffic infringement notice issue: Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 at [134]. 43 The applicant was the subject of a directed interview regarding the issuing of a traffic infringement notice on 8 May 2003 in relation to a police vehicle. The applicant denied she was driving the vehicle at the relevant time and place. The applicant stated: On 8 May 2003 I had use of police vehicle XQC661 for duties between 7.00am and 11.00am. The ticket indicates that the infringement took place at 11.17am which is after the vehicle was returned to Balmain. It also must be noted that the area where the infringement took place is not an area that I recall having driven the vehicle on that date. The investigation I was involved in did not require me to attend the Lane Cove area with the majority of use being in the Newtown, Balmain, Burwood and City CBD area. 44 The applicant's oral evidence was that on 7 May 2003 she had taken the car home with her and, on the morning of 8 May 2003, she drove to Burwood station at about 0700 hours and to Balmain station at about 1100 hours and she stayed there for the rest of the day. 45 An investigation into the matter was conducted by Acting Inspector E A Coffen who was responding to a complaint about other matters by Detective Inspector MacNamara who had been the applicant's supervisor at the time of this incident. 46 Acting Inspector Coffen concluded that: a. there was a high probability that the most reasonable hypothesis is that the applicant was driving departmental vehicle XQC-661 at the time of the detected infringement; b. that the applicant's versions and records pertaining to the incident on the balance of probabilities were more than likely untruthful; c. there can be no other reasonable hypothesis other than the applicant intentionally falsified at least some records to assist her in avoiding blame for the subject infringement; d. there was a great probability that the applicant lied in her response in the directed interview as to whether she knew who was driving the subject vehicle at the relevant time, as there was no suggestion as to another driver having the vehicle during the time of the infringement incident; e. there was no other feasible explanation other than the applicant drove the subject vehicle at the relevant time and place; f. the applicant was dishonest; g. despite being confronted with the facts the applicant elected to maintain her stance and relied on records that were most probably false; h. the applicant should be placed before an Internal Review Panel ('IRP') whereby her suitability to operate in plain clothes be re-assessed. 47 Having considered all of the material regarding the traffic infringement notice issue, I can understand why the investigator concluded that, on the balance of probabilities, the applicant was untruthful. 48 Counsel for the applicant complained that: The investigator's findings as to untruthfulness require an evidentiary 'quantum leap' from a hypothesis that the applicant was driving the vehicle to the applicant must be lying because she says she cannot remember the events of the day even though she remembers the route she would have taken when she drove to the station at Balmain. 49 The applicant gave evidence that she did not have any independent recollection of the day, 8 May 2003, at the time that she was giving evidence. The applicant also gave evidence that she probably did not have a proper recollection of what happened on 8 May 2003, even at the time that she was creating her duty book entry for that day sometime later in August 2003. Nevertheless, the applicant was adamant about the route she travelled from her home at the Central Coast to Balmain Police Station, about conducting a suspect identification in the morning of 8 May 2003 at Burwood and her travel from Burwood back to Balmain on that day. 50 The relevant objective facts regarding 8 May 2003 were as follows: (i) the applicant had use of the police vehicle XQC-661 from the afternoon of 7 May 2003 and garaged it overnight; (ii) the applicant's mobile phone was activated at the Central Coast at about 0831 hours. The applicant gave evidence that she may have loaned it to one of her daughters. There was an inconsistency in her evidence in that regard: at first the applicant said she probably raised with her daughters 'quite some time ago' whether she loaned her phone to one of them and they probably said 'No, mum, I didn't touch it'; then she said she did not know whether she raised it; then she said she probably mentioned it to them; then she said emphatically she did not raise it with them; (iii) the applicant said she was at Burwood at 0700 hours, but if she had made a phone call from the Central Coast at 0831 hours she could not have been at Burwood at 0700 hours; (iv) the speed camera at Lane Cove was activated at 1117 hours; (v) the distance from the speed camera location to Balmain Police Station was 8.5 km, a journey that was estimated to take about 13 minutes in peak traffic conditions; (vi) the car diary entry indicates the car was at Balmain at 1100 hours; (vii) the applicant's first log-on to memo was 1140 hours; the first log-on to COPS was 1147 hours; (viii) the applicant was taken to Burwood Police Station by Detective Sergeant MacNamara in the afternoon of 8 May 2003; (ix) the applicant obtained a statement and conducted an identification procedure at Burwood that concluded about 1721 hours; (x) there was a phone call from the applicant's mobile phone about 1931 hours on 8 May 2003 at Burwood; (xi) the duty book entry for 8 May 2003 was constructed by the applicant in August 2003 and the entry was consistent with the applicant's version of events notwithstanding that the applicant did not have a clear recollection of her movements on 8 May 2003. 51 Thus, the position was that, according to the applicant, she did not have a proper recollection of what occurred on 8 May 2003 when giving evidence or even when creating the duty book entry three months after the incident. In that respect, the applicant was correct: she said she was at Burwood in the morning when in fact she was not there until the afternoon and said she returned to Balmain at about 1100 hours when in fact she was still at Burwood at 1721 hours. It is perfectly understandable that after 12 months (which is when the directed interview of the applicant occurred) events may not be able to be accurately recalled. However, it is difficult to believe the applicant can be so firm about recollecting certain matters that would be otherwise adverse to her (such as she was at Burwood by 0700 hours) and not recollecting, or wrongly recollecting, others (such as where she was on the morning of 8 May 2003), and when no satisfactory explanation was provided for a retrieval from her mobile phone at 0831 hours near her home in Springfield on the Central Coast when the applicant said by this time she was at Burwood, and a call from the same mobile phone at Burwood at 1931 hours the same day when the applicant said she had returned to Balmain. 52 There is a major inconsistency in the applicant's version that she first went to Burwood at 0700 hours on 8 May 2003 and performed certain functions there and returned the vehicle at 1100 hours to Balmain, and the fact that she was at Balmain in the morning and taken to Burwood by Detective Sergeant MacNamara in the afternoon of 8 May 2003, where it is clear she remained until at least 1721 hours, if not 1931 hours. That the vehicle was logged in at 1100 hours at Balmain is more consistent with the applicant having arrived first at Balmain at 1100 hours after travelling from the Central Coast. 53 The applicant accepted that she did not have a clear recollection of her movements on 8 May 2003 at the time she constructed her duty book entry for that day in August 2003. Nevertheless, she constructed her duty book entry in such a fashion that it was consistent with her version that she first went to Burwood and then back to Balmain at 1100 hours so that she could not have been in Lane Cove. 54 The applicant was provided at the directed interview with all of the information at the investigator's disposal regarding the applicant's movements on 8 May 2003, yet the applicant, whilst pleading difficulty recollecting her movements, continued to insist on a version of her movements that was inconsistent with the objective facts. 55 In my opinion, there was a strong circumstantial case against the applicant, and the Commander was entitled to issue the Warning Notice and to order non-reviewable action. The Warning Notice made it clear that the applicant needed to 'clearly understand' that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under s 173(2) of the Police Act, or removal under s 181D of the Police Act. The applicant refused to sign the Warning Notice, however, the applicant indicated that she understood 'her position with regard to possible further management action'. 56 The Warning Notice, therefore, was not without reasonable foundation and in arriving at his decision to remove the applicant, the Commissioner was entitled to rely on the fact that such a Warning Notice had been issued against the applicant, with the warning that further unsatisfactory conduct or performance might result in further management action against the applicant. Remedial Performance Program - failure to sign 57 The applicant was placed on a Remedial Performance Program commencing on 24 January 2005 for a period of six months. Detective Sergeant Evatt was assigned as the applicant's mentor and Detective Inspector Jubelin was the reviewing officer. The Program was instituted as a consequence of issues regarding the applicant's performance in the areas of recordkeeping, case management, teamwork and criminal investigation. More specifically, these were described as 'deficiencies with regard to maintaining accurate and timely duty book and car diary records, working in a team environment and knowledge with regard to some aspects of criminal investigation and prosecution (eg. insufficient evidence to prove the offence, important documents omitted, application of legislation, exhibit handling, correct recording of adoption questions).' 58 Marks J provided a description of the RPP document: [50] The document set out by way of background the fact that there had been a number of "issues" concerning the applicant during 2004, specifically in the areas of record keeping, case-management, teamwork and criminal investigation. It referred to meetings in October and November 2004 where these issues had been discussed. [51] A number of strategies were set out in the Program document. It was noted that the applicant would be assigned to Detective Sergeant Evatt as a mentor who would meet with her weekly "to provide feedback regarding her current performance, assess the officer's current workload, progress and provide support for the officer on an ongoing basis." The mentor was to provide the Local Area Commander with monthly written feedback. A second strategy was a requirement for the applicant to produce her completed duty book entries and other material to the "Investigations Manager" on a weekly basis, which would then be reported to the mentor who would provide feedback. A third strategy required the applicant to "provide all briefs of evidence to the Investigations Manager who will act as the brief handling manager for review prior to the time of service." A fourth strategy was the placement of the applicant in Detective Sergeant Evatt's team within the detectives' office, to review "her ability to work effectively with the team to accomplish workplace goals." [52] A series of "outcomes" were set out with respect to each of the strategies. [53] The document included a warning that failure to complete the outcomes as described might lead to action being taken against her including her removal under s 181D. [54] The applicant was required to sign the Program as having received, read and concurred with the contents of the document. She declined to do so, explaining in a memorandum that she did not concur with its contents. That memorandum contained a lengthy recitation about the applicant's "rights" as a police officer which traversed a number of matters, about which she complained, which occurred during her period as a police officer. The fact that the applicant declined to sign the document was a ground noted by the Commissioner in his Statement of Reasons for her removal. 59 As his Honour noted and as was the case with the CWN, the applicant refused to sign the RPP. In this respect, the respondent submitted: [I]t is clear that the Applicant again regarded having been placed on a RPP as entirely unwarranted and again she refused to sign it (even by way of acknowledgement of receipt). This behaviour is, again , at odds with how a 'disciplined force' does and must operate, and this is so even if (which is denied) it could be said there were insufficient reasons to warrant such a program being put in place. (emphasis in original) 60 I do not consider too much can be made of the fact that the applicant refused to sign the CWN and the RPP except that it indicates that the applicant considered she had done nothing to deserve either because she had the view that there were no shortcomings in her performance, competence or attitude and that she has been, in effect, the victim of a 'conspiracy' against her, allegedly because of a complaint she made about a fellow police officer in earlier times. This view about absence of any fault on her part persisted throughout the period of the RPP and a revised RPP issued in May 2006. On the evidence, the applicant's view about her lack of shortcomings cannot be sustained and her refusal to acknowledge such shortcomings was irrational. Moreover, there was no corroborative evidence regarding any conspiracy against the applicant. Conduct while on Remedial Performance Program: 2005 to 2007 behaviour 61 The Commissioner alleged in his Notice under s 181D(3)(a) that during the period 1 February 2005 to 27 February 2007, the applicant engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct. This period was broken by a period of sick leave taken by the applicant from 6 April 2005 to 22 July 2005 when the applicant returned to work on restricted duties. Although the applicant had been attached to criminal investigation duties at Chatswood, she was required to perform general duties because of the restrictions placed on her. Accordingly, the RPP was suspended. On 27 February 2006 the applicant returned to full-time duties and later resumed her RPP. From about late February 2007 the applicant commenced a period of extended leave. On 15 May 2007, the applicant was suspended with pay pending consideration of whether the applicant should be removed. On 15 May 2008, the applicant was removed from the Police Force. 62 In May 2006, the RPP was amended by 'Annexure 1', which stated: Due to medical/health reasons you have been temporarily placed on restricted duties. Therefore, the Remedial Performance Program dated 24/01/05, has been amended with this 'Annexure 1', to reflect your current position and the tasks that you will be performing whilst on restricted duties … You have thus far, completed approximately three (3) months of the original Remedial Performance Program and you will have the remaining three (3) months to complete when you resume full duties. 63 Sergeants Bear and Taylor replaced Detective Sergeant Evatt as mentors. The Annexure outlined four strategies to be followed relating to improving the applicant's performance and conduct including record keeping, teamwork and compliance with lawful directions and the expected outcomes for each of these strategies. 64 The Annexure, completed by Detective Inspector Jubelin, outlined a number of further incidents, which had occurred while the applicant was on the RPP. The incidents were all referred to in the Commissioner's Confidence Submission attached to the Commissioner's Notice. The incidents referred to were as follows: · On the 10th February 2005, as per Strategy 2 of your Remedial Performance Program, a repeated request was made from D/Sgt EVATT that you provide a list of your current work commitments. You supplied this list approximately one hour later and displayed a dismissive and defensive attitude. It was apparent that you were reluctant to supply the list from the initial request, which took you ten days to fulfil. · On the 1st March 2005, you were required to serve outstanding brief items for a malicious wounding charge (Kurin Gai (sic) LAC). As a result of you availing yourself of sick leave in the week leading up to the 1st March 2005, D/Sgt Evatt was required to compile the outstanding brief items and arrange service. Improved time management and organisation by you, would have ensured that all the required documents were prepared and available for service on the defence to negate the need for another officer to follow this up for you on your behalf. · On the 1st March 2005, you sought advice from D/Sgt Evatt regarding a fraud matter. D/Sgt Evatt provided advice which was contrary to your own view regarding sufficiency of evidence. Your response to D/Sgt Evatt was indignant, dismissive and aggressive. You demanded that you be given respect considering your experience. D/Sgt Evatt attempted to placate your response by explaining the benefits of discussion amongst Criminal Investigation staff however you walked off upset, stating that you were not given the respect your experience demanded. · On the 7th March 2005 during a weekly meeting with D/Sgt Evatt you stated that you had another 'aggravated sexual assault on your plate'. In making this statement you implied that you had carriage of the matter. D/Sgt Evatt asked why you had not included the matter on your list of outstanding work and in doing so, he identified that in fact you were only required to supply a statement for the matter. When Evatt spoke to you about this matter, you showed great indignation and appeared aggressively resentful at being queried. It has become necessary for Supervisor's to examine all information supplied by you, to establish its veracity. · On the 17th March 2005, you discussed a fraud brief with another member of staff during which, this officer indicated a view contrary to your own. As a result, you reacted in an aggressive tone telling the other officer to give you "some credit" whilst rolling your eyes and then walking off. · In early March 2005, Sergeant Williams had cause to speak with you regarding inaccurate recording of times/duties in your duty book. This type of conduct is a repeat behaviour of what was a significant component, for the reasons as to why you were served with a 173 Non-reviewable Warning Notice on 22nd November 2004. · On the 1st April 2005, you attended the Commuter Crime Unit at Chatswood prior to 10am, even though you were advised that the staff attached to the unit don't normally commence their shift until 10am. You returned to the Detectives office at 10.45am carrying a large parcel. You then recorded in your duty book (as a 'note' below the finished entry) that you contacted the supervisor, D/A/Sgt Burns to inform him that the office was unattended. D/A/Sgt Burns has indicated that he never received such a call. · On the 5th April 2005, you were spoken to by the Local Area Commander in regards to your request to access your personal file. During this meeting you continually interrupted the Superintendent whilst she was speaking and you were contemptuous and dismissive towards the Commander by huffing and sighing. You were also spoken to about the incident, as mentioned above on April 1st where you initially denied having gone shopping until it was pointed out to you that you were seen carrying parcels back to the police station. · In March 2006, you were dismissive and defensive towards Sgt EVATT when being provided with advice and guidance regarding a witness statement that you had taken. It is apparent that you have difficulty accepting advice where improvements can be made and you respond inappropriately to senior officers by using sarcasm, aggression and patronising dismissive comments. · On numerous occasions you have been reluctant to accept advice or guidance from supervisors or peers. You become defensive, emotional and aggressively sarcastic. These outbursts have been described by colleagues as volatile and irrational behaviour. You often make continual reference to your past experience and investigations in an apparent attempt to justify your behaviour, decisions and opinions. 65 The parties each responded to the foregoing matters and I have had regard to their submissions and to the relevant evidence. It does not seem to me that any one of the incidents identified by Detective Inspector Jubelin in the Annexure and taken in isolation would justify the applicant's removal. Some of the incidents are relatively minor and did not deserve the weight placed on them by the respondent. Indeed, one could say the interpretation by the respondent of some of the incidents, or aspects of them, portrayed the applicant in an unfairly harsh light because they arose through mis-communication or misunderstanding between the applicant and her mentor; problems that could not reasonably be wholly attributed to the applicant. 66 However, one must view the incidents and others that I later describe in the context of a course of conduct that occurred whilst the applicant was in a program to remedy shortcomings in her performance and conduct. In that circumstance, the applicant was under scrutiny in a disciplinary environment with a strict hierarchy of authority. Whilst the applicant felt she should not have been subject to the Program and was undoubtedly highly resentful about it, she was required to comply with both the spirit and the letter of the Program. 67 It was, therefore, necessary for the applicant to comply with the obligations imposed upon her under the RPP and to apply herself to achieving the objectives of the Program. Instead, there is more than sufficient substance in the respondent's complaints about the incidents to demonstrate that the applicant continued to harbour resentment about being placed on the Program. That resentment was reflected in a lack of unqualified commitment by the applicant in applying herself to the tasks assigned to her in the Program and completing them with expedition and diligence or, if she was not able to do so, seeking advice about them, which on some matters she failed to do. The resentment was most particularly reflected in the applicant's inability to accept criticism, constructive or otherwise, and her difficulty with authority where she could be dismissive, disrespectful, querulous and resistant to suggestions as to how she might undertake a task. The applicant's objective in the Program should have been to avoid coming under further adverse notice, but her conduct including her attitude produced precisely the opposite result. 68 I have had regard to that evidence of the applicant favourable to her. There was her own evidence, of course, and the evidence she called from Sergeant Gooley. Sergeant Gooley said that during the period from March 2004 until September 2006 he was required to supervise the applicant and to monitor and verify her work 'including COPS events, radio messages created, General Station Pad Entries and general paperwork …'. Sergeant Gooley said: Alyson performed the tasks required of her and I had no reason to either reprimand or praise her. I found in this environment Alyson was competent, efficient, respectful and responded to direction.' 69 Surprisingly, given the applicant had been with the Police Force since 1997, Sergeant Gooley was the only witness called by the applicant. This may be contrasted with the 12 supportive witnesses called by the appellant in McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 and the support the applicant received from fellow officers, including the officer put at risk by the applicant's conduct, in Alexander v Commissioner of Police [2009] NSWIRComm 3. In that case at [54] it was said: [M]ost significantly, police officers up to the rank of sergeant and including SC Borg (who was the officer who may have been placed at risk by Mr Alexander's failure to challenge Mr L), indicated their preparedness to work with him despite knowing Mr Alexander had lied. Whilst I would accord more weight to the Police Commissioner's view about the implications of a lack of integrity for his Force than how individual officers might feel towards an officer who lied, the fact that these experienced officers have volunteered to give evidence in the applicant's favour is a significant consideration given it is they who would have to work with Mr Alexander on a day to day basis if he were to be reinstated. 70 The applicant referred to pre-Police Force character references and some 'complimentary remarks' from serving members of the Police Force, but these were of little probative value: see Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420. Reference was also made by the applicant to favourable evidence given by witnesses for the respondent. These included Acting Detective Sergeant Burn, Sergeant Taylor, Senior Constable Hawkins, Sergeant Bear and Mr Gallagher. I dealt with Mr Gallagher's comments earlier and I will deal with Sergeant Bear's evidence in another context later. 71 As for Acting Detective Sergeant Burn, this related to the shopping incident. Acting Detective Sergeant Burn was one of the applicant's supervisors during the period she was in the Detective's office at Chatswood LAC. He directed the applicant to pick up some material from the Chatswood Transit Office. Despite his direction that the applicant telephone ahead before she set off, the applicant did not do so. The office was closed when she got there, with the result being that she did not retrieve the material she was supposed to collect. Thereafter, when she returned she was carrying a shopping bag. Later that day when Acting Detective Sergeant Burn tried to find the applicant, she was not present in the station, as she had gone shopping again at a sale. When he raised this with her, she became 'emotional and a little teary'. She then 'became angry for the barest moment, stating that the police would not run her out of her job.' The meeting ended with the applicant stating she would 'get even with the Command.' 72 Acting Detective Sergeant Burn was asked to speak to the applicant about her shopping trip because Acting Superintendent Cruikshank had seen the applicant returning to the station with shopping bags. In his evidence Acting Detective Sergeant Burn stated: I think my Ma'am asked me to speak to Alyson about her being away from the office but I think the catalyst for it all was the fact that Ma'am saw her out her office window and she had shopping bags. Basically I think Alyson was flagged was because she was on this programme, and I think that was the only reason she was flagged because Ma'am saw her. Like from a supervisor's perspective in the six months I was acting I never had an issue with Alyson, not a problem and I think she was flagged for that and Ma'am asked me to speak to her about it just the fact she had been away from the office. 73 The applicant's reliance on Acting Detective Sergeant Burn was in relation to his evidence that the applicant had been 'flagged' and that he never had any issue or problem with the applicant. I agree with the respondent that it is not surprising the applicant was 'flagged'. She was, after all, on an RPP and subject to closer scrutiny than what otherwise would be the case. I can find no suggestion out of this incident that the applicant was being deliberately targeted or harassed. I take into account that Acting Detective Sergeant Burn did not have any problem with the applicant but I also note his other observation that 'I couldn't comment on her, though, in relation to being a police officer, only that I never had a drama with her.' 74 It was submitted by the applicant that Sergeant Taylor 'was positive about the applicant's ability and competency whilst she was under his supervision.' Sergeant Taylor was effectively the applicant's mentor only during the month of June 2006 in circumstances where the applicant's direct supervisor was Senior Constable Hawkins. Sergeant Taylor had very little direct contact with the applicant. Sergeant Taylor's assessment of the applicant was essentially based on what Senior Constable Hawkins told him. Sergeant Taylor's view of Senior Constable Hawkins was that he was a hard-working, honest officer, although he had not supervised Senior Constable Hawkins directly. Detective Inspector Jubelin's opinion of Senior Constable Hawkins was that he was not strong-willed and avoided conflict. 75 Senior Constable Hawkins had reported to Sergeant Taylor that the applicant 'was progressing well and doing everything asked of her' and that he was very happy with her work performance; that the applicant was able to complete all tasks allocated to her in a timely manner and that 'she has carried out her specific tasks to a satisfactory manner'. Senior Constable Hawkins was not called to give evidence. I note that it was only for a short period that Senior Constable Hawkins supervised the applicant in the exhibits section. 76 Part of the applicant's duties involved working on briefs. Senior Constable Harridge was the Brief Manager. There was in evidence a report by Senior Constable Harridge. The report indicated that the applicant was assigned to assist Senior Constable Harridge in August 2006 in the archiving of briefs of evidence. The report stated: Detective Senior Constable Reid-Frost has filed 216 briefs of evidence, thus updating the COPS entries. Of these entries 46 were error free. In the remaining 171 entries errors were detected, these being: wrong offender or victim name, wrong offence and where Case File Filed was closed, no Action being recorded in Action Field. Of these COPS entries 49 had multiple errors. 77 The applicant submitted, however, that: Sgt Gooley gave evidence of the required training brief handlers go through and that the process takes some time. Sgt Gooley was of the understanding that the course to become a brief handler is "undertaken over some months by both attending Parramatta and by course work". The applicant has never had the opportunity to review the errors said to have been made in the brief handling area at Chatswood LAC. There is not detail given of what the errors consist of. The applicant's position is that this incident was never properly proven and that the lack of detail renders it useless in an evidentiary sense in the case against the applicant. 78 I do not consider I am able to regard the alleged brief handling errors as a matter adverse to the applicant. District Court trial 79 The applicant was involved in preparing a brief in relation to a matter that went to trial in the District Court in August 2006. There was a complaint about the quality of the brief by an officer of the Director of Public Prosecutions. The officer spoke to the applicant about the complaint. The officer apparently indicated to Sergeant Baker, who had accompanied the applicant to the Court that 'it was the worst case that he had been involved in and blamed Reid-Frost for the stuff up, as he put it'. The applicant reacted emotionally and it appeared to Sergeant Baker, who had accompanied the applicant to the Court that the applicant 'was on the verge of a breakdown'. Sergeant Baker stated in his report on the matter: She [the applicant] blamed Burwood for the problems associated with the trial, including lack of support, the lack of a vehicle and that she had to attend the trial whilst on restricted duties. Because she was in such an uncontrollable state I could not calm her down. 80 On 21 August 2006, after the first day of the trial, the applicant spoke with Sergeant Bakos, a Team Leader at Chatswood Police Station. Amongst other matters, the applicant said to Sergeant Bakos: I need help with this bloody trial and I'm not getting any help. The DPP are asking for things to be done and I just can't do it all myself. I'm on restricted duties and I can't wear my appointments or drive a police car. How can I be expected to get things organised for this trial. 81 Sergeant Bakos said the applicant appeared flustered and on the verge of tears. He said he asked the applicant whether she had asked for help and whether she had asked Detective Inspector Jubelin. Her answer was 'no' because 'every time I go up there he screams at me'. Sergeant Bakos said to the applicant that she should have spoken to Detective Inspector Jubelin about getting help for the trial before now and the applicant replied: Yeah, I know. I'm the one who has kept putting my hand up to do everything. It's probably my fault for not asking … 82 As I have indicated later in these reasons it was Detective Inspector Jubelin's evidence that the applicant had spoke to him about the trial and his response was that 'the offer was there if she needed any assistance we would provide assistance or if there were problems let me know …'. Detective Inspector Jubelin stated that the applicant chose not to seek that assistance. Insofar as a vehicle was concerned, it was the evidence of Sergeant Bear and Detective Inspector Jubelin that the applicant would have been able to have access to a vehicle if she needed to. 83 The applicant said in her evidence she was under significant stress at the time of preparing the brief because of an illness in her family. The problem was, however, based on the evidence I have been taken to, the applicant simply did not seek the help that she so obviously needed and proceeded to provide a brief that was deficient. TOIL 84 Marks J dealt with the Time Off In Lieu (TOIL) issue at [56]-[59] and at [174]. I agree with his Honour that this incident was a minor matter and did not demonstrate in any way a failure by the applicant to 'display the highest standards of integrity' as alleged. I have nothing further to add. Issues with supervisors including RPP mentor Detective Sergeant Evatt, Detective Inspector Jubelin, the Local Area Commander and medical officer Dr Kirby 85 There was undoubtedly a significant conflict in the evidence as to whether the fault lay with the applicant and her inability to meet proper standards of performance and conduct as a member of the Police Force, or whether she was a victim of the system, and more particularly the treatment she received at the hands of senior officers, including Detective Sergeant Evatt and Detective Inspector Jubelin. 86 On the one hand, senior officers claimed there were considerable shortcomings in the applicant's conduct, performance and attitude such that the applicant continually failed to demonstrate 'the standards of conduct, performance and competence expected of a police officer …'. in particular regarding 'record keeping, teamwork skills, technical and professional skills in the area of criminal investigation and prosecution, customer service, decision-making, and planning and organisation/work management'; failed to demonstrate certain competencies related to an investigator, namely 'technical professional knowledge, decision-making, teamwork/collaboration, customer service, planning and organising/work management'; demonstrated an 'unwillingness or inability, to improve her performance, conduct and competence'; failed to meet certain standards described in a police code of conduct and ethics; failed to accept any guidance or assistance from her mentor; and had an attitude, which was aggressive and dismissive. 87 On the other hand, the applicant claimed that she was personally disliked by her supervisor/mentors, harassed and deliberately targeted by them and generally cast in a negative light. The applicant, in her response to the Commissioner's Notice under s 181D, described Detective Sergeant Evatt and Detective Inspector Jubelin as 'bullying' and 'harassing' her. She described Detective Sergeant Evatt as 'always confrontational' with 'limited interest in my wellbeing.' The applicant criticised Detective Inspector Jubelin for his report to police medical officer Dr Kirby about her behaviour as unsubstantiated, and criticised Dr Kirby for diagnosing her with a personality disorder without examining her personally and without possessing a degree in Psychiatry. 88 Having reviewed the evidence before Marks J and considered the submissions before me, I am unable to conclude in the applicant's favour regarding her treatment by senior officers. In that regard, as I stated earlier, I must acknowledge the advantage the trial judge had in assessing the reliability and credibility of witnesses, having seen them give evidence and be cross-examined with respect to it. 89 Marks J, with respect, well understood the tension in the relationship between the applicant and Detective Sergeant Evatt. At [83]-[84] his Honour stated: [83] As is patently clear, the relationship between Detective Sergeant Evatt and the applicant was rapidly deteriorating. The applicant, in her evidence and in her submission to the Commissioner, accused Detective Sergeant Evatt of harassing her to such an extent that she was emotional and unable to deal with him. As will be seen, there is no doubt that the applicant was unable to cope in her dealings with Detective Sergeant Evatt, as was readily apparent to a number of officers working in the Command, including those at the highest level. [84] Whether and to what extent the reason for the applicant's difficulty in coping emotionally at that stage can be attributed to Detective Sergeant Evatt is not clear. In a written joint statement dated 15 March 2006, Detective Sergeants Andrew Birch and Gary Williams referred to a conversation between Detective Sergeant Evatt and the applicant which had occurred the previous day. They referred to "constructive comments" made by Detective Sergeant Evatt to the applicant and the fact that he "spoke in a controlled manner focussing on the issue being discussed." They said that "It was apparent by the body language and the tone and dismissive responses that (the applicant) gave in reply to comments that she did not digest the advice given, and in fact was dismissive to any suggestions that she could have improved on the way she had obtained the statements."… 90 Marks J referred to the evidence of a number of episodes or assessments by senior officers that demonstrated some of the applicant's shortcomings: [88] On 5 April 2005, the applicant was spoken to by the Commander concerning her request to access her personal file and concerning also the incident that had occurred on 1 April. The report of Detective Sergeant Evans indicated that he was present at that meeting and he described the applicant as continually endeavouring to interrupt the Commander while she was speaking and as being "visibly contemptuous and dismissive towards the Commander by huffing and sighing as she was spoken to." The applicant was reported to have denied having gone shopping. … [98] … In a further referral to Dr Kirby on 23 March 2006, Detective Inspector Jubelin said: My concerns with my dealings and observations of Alyson is a (sic) follows, she demonstrates what appears to be disproportionate emotional response to situations. These emotional outbursts are demonstrated in tears, anger, frustration through body language and words. She has in inability to accept criticism of any of her past actions. She is on a Remedial Performance Program that is not overly onerous, but she refuses to accept she should be on the program in the first place. Alyson also demonstrates what appears to me to be a need to be respected in regards to her policing experience by her work colleagues. This is demonstrated in her frequently talking about what a good police officer she is and talking up the jobs she has been involved in. Alyson's dedication to her work is not in question, however the manner in which she conducts herself is disruptive to her work colleagues. … [114] … The memorandum contains a summary of Detective Inspector Jubelin's assessment of the applicant and her circumstances in the following terms: "The details in this report outline some of the issues that have arisen with (the applicant). In summary the emotions displayed by (the applicant) are volatile and her reactions are disproportionate to situations. It appears through her conversations and actions that she craves recognition. (The applicant) can not and will not accept advise (sic) from more senior and experienced officers. (The applicant) has alienated herself from her work colleagues and does not appear capable of working in a team environment. (The applicant) is totally disruptive in a work environment. The impact (the applicant) has had on this command since her arrival is negative and affects the efficient working of the LAC. (The applicant) has been placed on restricted duties and referred to the Police Medical Officer on three occasions whilst attached to this command. This will be continued whenever (the applicant) displays the type of emotion as outlined. There appears to be absolutely no progress made with (the applicant) since the time she arrived at this LAC. As her supervisor I have no confidence in her abilities to carry out duties as a sworn police officer. This LAC has had trouble placing (the applicant) in any section in this LAC where she does not cause disruption. As unpleasant as this is to document, there is no person I know within this LAC who is happy to work with (the applicant). Staff both junior and senior have approached me and specifically requested that (the applicant) not be placed in their section or team. Despite all efforts to manage (the applicant) appropriately, her personality type prevents even the slightest of progress being made." … [122] At his first meeting on 4 July 2006 concerning the amended RPP, Sergeant Bear discussed the restricted duties which she was then undertaking in the exhibits section and the brief handling portfolio. The applicant said that the duties she was performing were "mundane". She told Sergeant Bear that she had "been to see the Commissioner's Office and it was her understanding that she would be returning to full duties sooner rather than later." Sergeant Bear noted that in relation to that and other conversations that day concerning the applicant's contact with the Commissioner's Office that: "I got the clear impression that she did not accept her current role and that she question (sic) my authority to enforce the current situation. Reid-Frost either did not believe my summation of the situation or could not accept the reality of her situation."… [123] Sergeant Bear's report concludes in this fashion: "Over the period of this report, I have had numerous encounters with her, in respect to initiating meetings or conversations with me. I have further informed her that she only needed to report to her supervisor and not me every time she wished to do an activity. Her supervisor would then inform me at a later date to give a situation report and a work progress report. I have had constant reminders from Reid-Frost that she was required to inform me of every movement or different course of activity she undertook day to day. I found this to be over the top and stressful to me. I further informed her that she was not required to inform me on her every movement. There continues to be a theme of questioning decisions made in regard to her duties and supervision. I find that she disputes or at the very least appears to try to justify her actions to me, even when I am trying to advise her as to the best practice or course of action as her mentor. I believe that this relates directly to her plan as one of her remedial objectives that she has clearly either not complied with or had simply misunderstood. In respect of her work, I have spoken to her supervisors that are directly responsible for her day to day supervision. I have been informed she has carried out her specific tasks to a satisfactory manner." 91 At [124] Marks J described Sergeant Bear as 'a most impressive witness who, in the manner in which he addressed himself to informing the Commission about the applicant, appeared to me to be completely honest, objective and sincere': [124] Sergeant Bear gave oral evidence which consisted predominantly of cross-examination. Whilst one must be careful in assessing witnesses from a brief opportunity only of observing them in the witness box, having regard to the evidence which he gave, I found Sergeant Bear a most impressive witness who, in the manner in which he addressed himself to informing the Commission about the applicant, appeared to me to be completely honest, objective and sincere. In making these comments, I should not be thought to have assessed any other witness as lacking in any of these qualities. Rather, I regard the evidence of Sergeant Bear as being untainted in any way by any suggestion, as maintained by the applicant during the course of the proceedings, that there was in some way a conspiracy to remove her from the New South Wales Police Force and to adduce evidence in support of such a conspiracy. 92 At [129] Marks J referred to Detective Inspector Jubelin's evidence regarding his dealings with the applicant: [129] Detective Inspector Jubelin was principally concerned in the determination that the applicant had failed to satisfactorily complete the RPP's established for her, as referred to in the Commissioner's Statement of Reasons. He was cross-examined extensively concerning the opinions that he had formed about the applicant and the basis for those opinions. With respect to a number of incidents, he conceded that he relied solely on information provided to him by others, for example Detective Sergeant Evatt in whom he had complete confidence, GSO Fallon with respect to the "road rage" incident and other incidents of a similar kind in which Detective Inspector Jubelin was not personally involved. However, it is clear that he did have contact with the applicant from time to time and that he found such contact unsatisfactory. This commenced with her refusal to acknowledge the initial RPP that was created for her and what he perceived to be her reluctance to participate in it. Furthermore, he found the applicant dismissive of him and other officers in authority and he found it difficult to communicate with her because of the emotional way in which she reacted to any criticism or attempt by him to deal with any difficulty which had arisen. There is included within the evidence a memorandum from Detective Inspector Jubelin to the Employee Management Branch in which he complained of not having taken any sick leave over the last 10 years, but being concerned that he would be forced onto sick leave by reason of his dealings with the applicant. 93 At [154], in quoting from a note of a conversation Constable Moscatelli of the Employee Management Branch had recorded with Detective Inspector Jubelin, his Honour referred again to the difficulty Detective Inspector Jubelin experienced in dealing with the applicant: [154] ... "Insp Jubelin was unhappy with this information due to his frustrations in feeling the organisation was not assisting the North Shore LAC ... I believe he is simply extremely overwhelmed and frustrated that (it appears) nothing can be done with Reid-Frost. He stated he felt like the organisation has and continues to bend over backwards for people like Reid-Frost at the expense of good hard working staff members, such as himself. He stated that he felt like he was getting flicked passed between the PMO and the organisation because neither wanted to make a decision. Insp Jubelin appears at his wits' end in managing Reid-Frost." 94 Further reference was made by his Honour at [157] to Detective Inspector Jubelin's difficulties with the applicant, including her refusal to see him unless an independent person was present: [157] Detective Inspector Jubelin forwarded an email to Constable Moscatelli on 27 June 2006 after obtaining a further report from Dr Kirby. That report had confirmed his opinion that the applicant had an ingrained personality disorder and that her behaviour was unlikely to change. He rejected a suggestion that there should be perseverance with the applicant's RPP. Firstly, she openly resisted being on it and her attitude to it was hostile. Secondly, she was unable to complete the RPP as originally formulated because she was on restricted duties. She was on restricted duties because she reacted unduly emotionally to any attempt to apply the RPP to her. It was this that caused the need to put her on restricted duties. This in turn resulted in an assessment that the applicant would not be able to return to duties as a detective carrying out criminal investigations even if she were declared fit to return to full duties. Furthermore, Detective Inspector Jubelin said: "Alyson through her behaviour and personality has alienated herself from the majority of the officers attached to the Detectives' Office. This is to the extent where she has stated that she does not trust the two Senior Officers in the Office and is not prepared to talk to them unless the conversation is recorded or an independent person is present. These Officers are her supervisor and mentor. The issues Alyson has with these Officers are a direct result of them managing her in their appointed roles. I feel as an organisation we have a responsibility to all our employees to create an acceptable work environment. I think it would be unfair to the other Officers if Alyson was returned to the office. Could you also consider my position as Crime Manager and Reviewing officer for Alyson at this LAC. My last communication with Alyson was through her new mentor scheduling a meeting with Alyson to discuss an issue she has raised. Alyson indicated that she would not see me unless an independent person was present. This makes my position difficult. I am now on Alyson's list of people she does not trust. This again is direct result of my performing duties in managing Alyson." 95 At [187] Marks J described what his Honour considered to be aspects of the applicant's inappropriate behaviour: [187] On the other hand, however, there is material that is indicative of the applicant displaying an attitude that rejects authority and that endeavours to reject the systems and processes within the New South Wales Police Service. In my opinion, the applicant acted inappropriately in the manner in which she dealt with a number of her superior officers. The documentation and evidence is replete with examples of this, many of which I have referred to earlier in these reasons for decision. She resisted the authority of the Local Area Commander, of Detective Inspector Jubelin, of Detective Sergeant Evatt, and many others. She was unduly argumentative and unduly resistant to directions and suggestions made to her on many occasions. Her professed refusal to speak to Detective Inspector Jubelin and others without an independent witness being present concerning matters which clearly related to the carrying out of her work duties was inappropriate and, arguably, ludicrous. 96 Marks J at [191] explained why he was not persuaded that Detective Inspector Jubelin's assessment of the applicant's personality was incorrect: [191] The other difficulty that seems to me to arise in the circumstances of these proceedings is that the failure to comply with the spirit of the RPP was but one element of what was troubling Detective Inspector Jubelin and others about the applicant. It is clear, in my opinion, from the evidence of Detective Inspector Jubelin that his principal concern with the applicant was not as a person but as a personality type. Detective Inspector Jubelin set out eloquently and clearly his assessment of the applicant and her circumstances in a memorandum, the relevant extract of which I have earlier set out and which was made on 23 March 2006 (see [98]). Accordingly, it is the applicant's temperament, her manner, and all of the other matters which go to make up her personality which, in the opinion of Detective Inspector Jubelin, constitute the difficulties which he foresaw with the applicant's continued presence in the New South Wales Police Service. I readily acknowledge the applicant's submission that Detective Inspector Jubelin's assessment of her must have been based in part on what he had been told by Detective Sergeant Evatt and which was not either necessarily completely accurate or had been exaggerated, but nevertheless there are other matters which Detective Inspector Jubelin could have used as the basis for forming his opinion. Included within these are, of course, his own dealings with the applicant. Included within Detective Inspector Jubelin's assessment is a professed concern by other staff in the Local Area Command about working with the applicant. Of course, on one basis, the only means of litigating an assertion of this kind would be to engage in some evidentiary process involving all of the members of staff who worked with or who interrelated with the applicant and taking some form of evidence from them. To state such a proposition is to demonstrate that it would be counterproductive both to the Local Area Command and especially to the applicant. Having had the benefit of evidence from Detective Inspector Jubelin whilst he was principally subjected to cross-examination over some days, I accept that he fervently believes that his assessment of the applicant is correct and that the applicant was a most difficult person to deal with. On the basis of such evidence as has been elicited for the purpose of these proceedings, I am not persuaded that Detective Inspector Jubelin's assessment of the applicant's personality is incorrect. In view of the decision that I have reached as to the determination of these proceedings, I have deliberately stated my conclusion in this manner. There is, in my opinion, sufficient corroborative evidence from other witnesses to allow such a conclusion to be reached. 97 The specific assessment of Detective Inspector Jubelin that his Honour referred to was that: § the applicant demonstrated what appeared to be disproportionate emotional response to situations; § the applicant's emotional outbursts were demonstrated in tears, anger, frustration through body language and words; § the applicant had an inability to accept criticism of any of her past actions; § the applicant refused to accept she should be on the Remedial Performance Program; § the applicant demonstrated what appeared to be a need to be respected in regards to her policing experience by her work colleagues; § the applicant conducted herself in a way that was disruptive to her work colleagues. 98 Additionally, at about the same time Detective Inspector Jubelin made the foregoing assessment, he also expressed the opinion that (see [114]): § emotions displayed by the applicant were volatile and her reactions were disproportionate to situations; § the applicant appeared through her conversations and actions to crave recognition; § the applicant cannot and will not accept advice from more senior and experienced officers; § the applicant alienated herself from her work colleagues and did not appear capable of working in a team environment; § the applicant was totally disruptive in a work environment; § despite all efforts to manage the applicant appropriately, her personality type prevented even the slightest of progress being made. 99 Marks J did not accept that all of the complaints made against the applicant were legitimate and regarded some as falling into the category of trivial. Nevertheless, his Honour accepted that Detective Inspector Jubelin's assessment of the applicant's personality was not incorrect and accepted that the applicant: § displayed an attitude that rejected authority and endeavoured to reject the systems and processes within the New South Wales Police Force; § acted inappropriately in the manner in which she dealt with a number of her superior officers; § was unduly argumentative and unduly resistant to directions and suggestions made to her on many occasions; and § failed to comply with the spirit of the RPP. 100 In February 2005, Detective Inspector Jubelin had referred the applicant to the senior police medical officer, Dr W Kirby. As Marks J observed at [98]: [98] ... The referral document noted that the applicant became very emotional, cried frequently and presented herself in a distressed state when discussing the fact that she had been placed on the RPP. She was given restricted duties on 10 February 2005 and her firearm was secured. ... 101 Detective Inspector Jubelin made a further referral on 23 March 2006 and on 9 June 2006 Dr Kirby provided a report that was referred to by Marks J in the following terms: [99] ... Dr Kirby concluded from a review of certain material, which appears to have been forwarded to him by the Local Area Commander, that the applicant: · "is not able to isolate and control her emotions when challenged · has a need for recognition that inappropriately intrudes into her workplace relationships · reacts with exaggerated emotion to the extent that it affects her policing performance · appears to have a belief in her capabilities that is inappropriately optimistic, maybe unrealistic · has difficulty with authority figures and a workplace hierarchy that she is required to work within · although not untruthful would appear to be selective with her information and the emphasis put on facts" [100] Dr Kirby from his review of what appear to be opinions and reports of health professionals, who are unnamed, expressed the opinion that there was no evidence that the applicant was "delusional or suffers a psychological or psychiatric disorder. Therefore, her behaviour can only be explained on the basis of her personality type." He thought that the applicant's behaviours were "a product of her personality, are deeply ingrained, she does not have the capacity to control them and there is minimal or no chance at this stage that they can be changed by therapy." Dr Kirby recommended that the applicant remain on restricted duties. 102 On 3 July 2006, Dr Kirby recommended that the applicant (see decision of Marks J at [120]): [120] ... by reason of her conduct and behaviour, be permanently restricted from access to her appointments. This recommendation entailed not wearing a uniform in public, not driving a marked police vehicle, being limited to station duties and, obviously, an inability to have access to the usual appointments. 103 I note that Dr Kirby, who was not a psychiatrist or psychologist, was not required for cross-examination. I note also that in the evidence was a Statement by Dr Julian Short, a psychiatrist, who examined the applicant on 13 September 2006, 7 November 2006, 2 October 2007 and 21 July 2008. Attached to Dr Short's Statement was a report provided to the applicant's solicitors. Dr Short was not required for cross-examination. 104 Dr Short indicated in his report that he did not believe the applicant attracted a psychiatric diagnosis; that she was not 'psychologically disordered' and there was no indication of a requirement for continuing treatment. Dr Short expressed the opinion that 'Mrs Reid-Frost would be capable of discharging her duties as a police officer at a level significantly superior to the average.' That opinion was expressed in the context of advice from the applicant's solicitors regarding the range of duties a police officer may be called upon to perform and whether the applicant was incapable of performing those duties. The duties listed included: getting in and out of cars; liaising with the public and third parties; making effective observation and recording the same in statements that are in admissible form to a court process; sitting at a desk; and exercising a range of technical options from mere presence to lethal force. 105 It was not part of the respondent's case that the applicant was suffering from a psychiatric disorder and it was not Dr Kirby's opinion that the applicant was afflicted by such a disorder. Dr Kirby said there was no evidence that the applicant was 'delusional or suffers a psychological or psychiatric disorder'. It was also not the respondent's case that the applicant was incapable of performing what were largely duties of a physical nature. 106 The respondent's case was essentially that the applicant was not suitable for the role of a police officer for the reasons provided by Detective Inspector Jubelin and Dr Kirby, including her inability to isolate and control her emotions when challenged, her inappropriate attitude towards authority figures, her inability to accept advice from more senior and experienced officers, her argumentativeness and resistance to directions and suggestions. Dr Short did not address the criticality of the requirement that the applicant had to function in a disciplined force that demanded due respect for authority and the capacity to work productively and in the absence of conflict as part of a team. Refusal to speak with supervisor without independent person present 107 The Commissioner's Confidence Submission stated: On 21 June 2006, Sergeant Taylor (the new mentor under the amended RPP) states that he told Detective Senior Constable Reid-Frost that she could carry out tasks in regard to a brief … but informed her that Detective Inspector Jubelin had asked that she not contact the victims as he wished to speak with the Department of Public Prosecutions first to see if they had already informed the victims of the accused's release. 108 The applicant reacted adversely and became both angry and upset, claiming that Detective Inspector Jubelin was questioning her integrity. In her response to the Commissioner's Notice, the applicant stated: Up until that point I was unaware that Detective Inspector Jubelin had any interest in the ... matter ... It was inexplicable to me why Detective Inspector Jubelin would think that the Director of Public Prosecutions would telephone the victims and inform them of the accused's release. In my experience that type of task is delegated to the informant. … I thought Detective Inspector Jubelin was micromanaging me even though as crime manager he no longer had direct supervision of me. 109 When the applicant was informed later that day that Detective Inspector Jubelin would speak with her, she refused, saying, 'No he won't. I want to have an independent person present when speaking to him.' Detective Inspector Jubelin's evidence was that '[the applicant] said she wanted not only a third person present when she spoke with me, but not any police officer, it had to be a member of the public.' 110 In cross-examination, the applicant conceded that the position she took in refusing to speak with her superior officer without an 'independent person' was 'extreme'. However, she stated, 'that was the advice I had, that I could have a person' and further that she was not only advised that she could have an independent person, but 'that I could and I should.' However, the applicant did not identify the source of this 'advice'. 111 I note that on 15 March 2006 the applicant refused to speak with Detective Sergeant Evatt or Detective Sergeant Williams without an independent person present. 112 Insofar as Detective Inspector Jubelin was concerned, there was no evidence to suggest that there was any hostility towards the applicant from him. I am unable to see any proper basis for the applicant refusing to speak to the Detective Inspector without a member of the public being present, other than as the respondent submitted, there was an 'ongoing, deeply ingrained rejection of the authority of Detective Inspector Jubelin, her superior officer'. Marks J described the applicant's attitude as 'ludicrous'. That is so, but it was also behaviour that was unprofessional, and constituted a failure to comply with Strategies and Outcomes 3 and 4 of the Amended Remedial Performance Plan relating to teamwork, building relationships, exchanging information freely and complying with lawful directions from senior officers without question or incident. Sergeant Bear 113 Sergeant Bear was one of two new mentors assigned to the applicant in the amended RPP. He said that his relationship with the applicant was 'amicable'. There was an exchange between the applicant and Sergeant Bear on 20 July 2006. Of that exchange, Sergeant Bear said in his evidence: What I recall is – and it wasn't the first time I sort of mentioned the time management issues or at least the perception and how to get over it. I mean, and when we had the meeting with the boss and there was a bit of an argumentative nature between the boss and Alyson and I felt afterwards she didn't do herself any favours by having an attitude towards the senior officer and I said this at the beginning of when I was mentoring her for want of – I said, shut up, three bags full sir, do what needs to be done, we will get you off this, then you can go on with your career. I said after that meeting, Alyson if you calm down and took it all in we will get on with it and continue on. That was the nature of that. She then would say things like I should not be doing this again, referring back to three or four of the same routines all the time, I was being undervalued in the position I am in, I have the brief to do, no-one is helping me. Especially after that meeting I again looked at her and said you are complaining all the time about not having any help with the brief, why. In that meeting was a perfect opportunity for you to say I am not getting any help, I need help and I was there. Go in and do it and she didn't do it in that meeting. Her excuse was "they wouldn't give it to me. Anyway, I have people working on this, mates at State Crime, they will help me out." 114 I have already referred to what Marks J found in relation to Sergeant Bear as a witness, namely that he was 'completely honest, objective and sincere' and 'untainted' by any suggestion of a conspiracy against the applicant and one who reflected matters accurately and 'without bearing any malice or ill will of any kind to the applicant.' 115 His evidence confirms the applicant's querulous nature, her continuing resistance to authority and her resentment at being placed on the RPP. The applicant's inability or refusal to take advice or instruction from Sergeant Bear, a supervisor with whom she had an amicable relationship and who was completely objective and honest, only serves to strengthen the respondent's case that the applicant was unsuitable to continue as a police officer. 116 The reference to 'the brief' in the extract from Sergeant Bear's evidence was a reference to the brief handling matter that the applicant had been assigned, which I referred to earlier in relation to the District Court trial. As it will be recalled, the applicant's complaint was that she was not receiving any assistance with the matter. But it appears from Sergeant Bear's evidence that despite claiming to require assistance with the brief matter (the only matter for which she had carriage), she refused to ask for any assistance and/or she was receiving it from 'mates' in State Crime. Detective Inspector Jubelin gave evidence, however, that the applicant was given significant assistance with this matter and never asked for help. Further, despite claims by the applicant that she was impeded in preparing the matter for trial by her restrictions that prevented her from driving a police vehicle, the evidence of Sergeant Bear and Detective Inspector Jubelin was that she would have been able to have access to a police car if she needed to. 117 The applicant's claim that even if she asked for assistance with the brief she would not have received it is quite at odds with the other evidence. The claim is indicative of a siege mentality on the part of the applicant that was not justified. Secondary Employment 118 The Commissioner alleged, and the applicant conceded, that she worked in secondary employment as a credit controller from 4 June 2007 to 6 July 2007. This secondary employment was not authorised or approved. 119 The applicant submitted a secondary employment application on 29 March 2007 and, after making various enquiries, did not receive any further communication for three and a half months at which time, upon being informed that her application had been refused, she immediately resigned from her secondary employment. 120 The applicant said that she had applied for secondary employment with the goal of restoring her self-image and her feelings of self-worth. The secondary employment was not undertaken in an attempt to secure a better financial position. The applicant submitted that her frank admission relating to undertaking secondary employment should be taken into account by the Commission in assessing the seriousness of her conduct when determining whether this incident is grave enough to satisfy the Commission that her removal was not harsh and unjust in the circumstances. Furthermore, the fact that the applicant had applied to undertake the work should serve to mitigate the seriousness of the actions of the applicant. 121 It was also submitted the Commission should have regard to the recommendation of Detective Inspector Peter Yeomans that the secondary employment be approved along with the recommendation of the applicant's regional Commander that approval be given pending approval from the Director of Human Resources. Counsel for the applicant submitted that neither of these senior officers could identify any conflict of interest and in the normal course of events if these two officers had approved secondary employment then an officer would be eligible to undertake it. Detective Inspector Yeomans described accountancy as not being a high-risk industry for the purposes of the secondary employment criteria; as is disclosed in the guidelines, where the employment is not in a high risk industry the LAC Commander is the usual person to authorize the employment and if there are extraordinary features the application then goes to the Regional Commander. Both these officers approved the application. 122 Mr Nagle further contended that it was arguable that cl 5 of the Police Force's 'Secondary Employment Policy and Guidelines' was not applicable as the applicant had already commenced approved leave, being long service leave, and did not require leave to be authorized in order to undertake the secondary employment. 123 The respondent submitted that the applicant's acceptance of secondary employment without approval was undoubtedly a serious breach of well-known rules and was a further demonstration of the applicant's poor attitude towards the rules and respect for authority. 124 It was further submitted for the respondent that it was significant the applicant disclosed that she applied for secondary employment 'with the goal of restoring her self image and her feelings of self worth'. This suggested senior counsel submitted, that the applicant's time with the Police Force (especially since 2004) had, in her belief, undermined her 'self image and her feelings of self worth' and that, in effect, she 'felt much better' when she took up secondary employment in the field of accountancy. 125 Senior counsel submitted that: [T]he Applicant's level of comfort whilst working in accountancy, sits happily with the evidence contained in the numerous pre-Police Force character references that she put before the Commission the majority of which demonstrated that when the Applicant was working in a volunteer/support role to the Police Force she had no difficulty. Such accountancy and volunteer positions were/are undoubtedly in stark contrast to the complex, stressful, and critical investigative work conducted by Detectives in the NSW Police Force, where strict compliance with all "rules" are important and where the level of rigour and adherence to direction is probably more critical than in any other area of the Police Force. 126 Consequently, it was submitted: [I]t would be difficult for the Commission to be satisfied that putting the Applicant back into the Police Force ( even if , contrary to the Respondent's submissions, the Commissioner is satisfied that her removal from the Force was "harsh"), would be in her own best interests , quite apart from the Respondent's firm contention that her return to the Force would not be in the broader "public interest" (viz, the "integrity" of the Police Force). (emphasis in original) 127 Although it was not authorised, the taking up of secondary employment by the applicant would not, in the circumstances, constitute a basis, of itself, to remove the applicant. However, it was on 29 March 2007 when the applicant made an application for secondary employment. In about mid-May 2007 the applicant applied for employment through an employment agency and she commenced her secondary employment on 4 June 2007. On 6 July 2007 the application for secondary employment was declined and the applicant immediately resigned her secondary employment. 128 In the prevailing circumstances, the applicant's decision to take up secondary employment without approval demonstrated a serious lack of insight on the part of the applicant into her shortcomings and the possible consequences. Dog handling incident 129 It was alleged that on 27 February 2007, a dog handler attended Chatswood LAC to give a lecture regarding police dogs. Constable A G Dixon, an officer with the Education Development Office, was apparently responsible for the conduct of the lecture. In a report on the incident, Constable Dixon stated that the applicant arrived half an hour late, disrupted the lecture and did not apologise. She then picked up the dog (a pup), causing it to scream and whine, disturbing the training. He said the applicant continued to hold the pup causing others present to look around. Constable Dixon further alleged that the applicant interrupted the talk with questions irrelevant to police dog handlers, disrupting the training. As a result the Constable had to apologise to the dog handler for the applicant's conduct. 130 I accept that this was not a major incident, but the disruption the applicant caused was inappropriate and unnecessary. It is apparent for the applicant's response to Constable Dixon's report that she considered herself to be entirely without blame for disrupting the lecture and expressed the view that 'everyone is against her'. There was no evidence of any former dealings between Constable Dixon and the applicant. He was simply reporting what occurred during the lecture. 131 The incident is simply another example of the applicant lacking awareness of the disruptive effect of aspects of her behaviour and refusing to acknowledge that was the case. Acting Superintendent Campbell - 5 December 2006 132 On 5 December 2006, the applicant met with Acting Superintendent Campbell and was informed that she was to remain on restricted duties. Acting Superintendent Campbell was not in a position of situational conflict with the applicant as was the case alleged in respect of Detective Sergeant Evatt or Detective Inspector Jubelin. Nor was there any evidence to suggest the Acting Superintendent had any particular issue or difficulty with the applicant. Indeed, the applicant described her as 'a good friend, in some circumstances'. 133 When Acting Superintendent Campbell informed the applicant she was to remain on restricted duties, it was alleged that the applicant became upset, raised her voice to, and was aggressive towards, her superior officer. 134 In relation to the incident the applicant stated: I was upset and annoyed when spoken to by Superintendent Campbell as I naturally do not want to remain on restricted duties and believed I was fit to return to full duties. It was also somewhat of a "festering sore" with me that I had never been told other than indirectly by Sergeant Bear, that I was on permanent restricted duties. 135 In her oral evidence the applicant accepted that she was upset and annoyed and raised her voice to a superior officer, but denied she was aggressive. In particular, the applicant refused to accept that she had behaved in an inappropriate manner towards a senior officer. 136 I am not in a position to determine whether the applicant was aggressive in the exchange with the Acting Superintendent, although it was accepted by her that she raised her voice. The respondent submitted: This incident, and the Applicant's evidence about it, is instructive. If it were the only evidence of this kind regarding the Applicant's attitude and behaviour, the Commission may perhaps not be too troubled by it. However, the evidence about this incident is significantly corroborative of much of the other evidence that is suggestive of the Applicant's unacceptable 'pattern of behaviour'. There is startling symmetry between what Acting Superintendant (sic) Campbell has recorded in her note and what is disclosed about the Applicant's attitude and behaviour in the other evidence. ... 137 In my opinion, the respondent was correct; the applicant's conduct in the meeting with Acting Superintendent Campbell, whether or not it involved aggression, fitted a pattern of behaviour adopted by the applicant when dealing with authority that was unacceptable. It adds weight to a conclusion, as Marks J observed at one point in the course of the trial, that the applicant appeared to lack 'the insight as to the totality of the circumstances around her'. Lying down in public 138 Acting Inspector A D Birch reported that on 27 February 2007 he was performing duties as the Duty Officer at Chatswood and that at about 10.15 am saw the applicant in a designated outdoor smoking area of the Police Station, 'lying down flat on a double bench seat with her head positioned at one end of the chair and her feet crossed over resting on the other end'. The applicant would have been visible to the general public. 139 Acting Inspector Birch did not act immediately because he was aware of 'on-going problems' with the applicant. In order not to embarrass the applicant or have her feel she was being singled out unfairly, the following morning Inspector Birch made a general comment at 'muster' about appropriate conduct whilst using the designated smoking area. He referred to lying down in a seat in a position where it was possible to be observed by the general public. He reminded those present to act professionally especially when in the eye of the public. 140 On 28 February 2007 Detective Inspector Yeomans spoke to the applicant about the dog handling incident and the lying down in public incident. The applicant was advised her behaviour was inappropriate. The applicant is reported to have said she was being picked on by other officers, that she was not happy working in the exhibits section and felt she should be a 'working detective'. Detective Inspector Yeomans said the discussion was 'fairly amicable and the Applicant did not seem overly upset'. However, he said: About one hour after that conversation, the Applicant, unannounced, approached me in my office and without warning threw her identification badge at my head and said: "I'm going to leave". She then started crying. She said that no one liked or trusted her and this was the reason for the complaints about her conduct. I calmed her down and suggested she contact the Employee Management Branch. Later that day she submitted a leave request and asked if she could undertake secondary employment while on leave. I told her "You will need to make a formal request and it would have to be approved." 141 The applicant denied that she threw her badge and denied she said she was going to leave. Under cross-examination, Detective Inspector Yeomans insisted the badge was thrown at his head. 142 This is another quite minor incident that really in any other circumstances would not have warranted further attention. However, it was reasonable for Acting Inspector Birch to take the view that lying down on a bench in the smoking area of a police station, in view of the public, was not appropriate behaviour for a police officer and it was reasonable for him to remind officers that it was inappropriate. He attempted to do so without singling out the applicant. The applicant was obviously aware that her conduct was under scrutiny and any reasonable person subject to such scrutiny whilst on restricted duties and undergoing an RPP would, one expect, avoid even minor infractions of proper conduct. As for throwing the badge, the evidence is in conflict and I am not inclined to make a finding against the applicant. 143 What the conversation with Detective Inspector Yeomans does reinforce is the applicant's siege mentality; that everyone was against her, which as I earlier indicated was not a justifiable state of mind. Procedural deficiencies 144 The applicant urged the Commission, in considering whether her removal was harsh, unjust or unreasonable, to have regard to the procedural deficiencies found to have existed by Marks J. In the appeal from the decision of his Honour the majority held that: [3] … there was nothing in the procedural failures identified by his Honour which, when properly analysed, warranted the determination of the ultimate question as to whether the removal was harsh, unreasonable or unjust on that basis alone. And at [19]: [19] We do not consider that any deficiencies in the steps taken by (or arising from steps omitted to be taken by) the Commissioner before the removal were such as would warrant a finding that the removal was harsh, unjust or unreasonable on that basis alone, although, some of them were plainly relevant to the ultimate disposition of the matter. 145 I am obviously bound by the majority's finding that the procedural failures identified by Marks J did not warrant a finding, on that basis alone, that the removal of the applicant was harsh, unjust or unreasonable. 146 As it will be seen, I have reached the conclusion, based on merit considerations, that the removal of the applicant from the NSW Police Force was not harsh, unjust or unreasonable. None of the procedural deficiencies undermine that conclusion. 147 The applicant did raise as a procedural deficiency that she was not either shown or told about the complete contents of 'JSR 04' and that the Commissioner failed to follow reg 26 of the Police Regulation 2000 (since superseded by Police Regulation 2008). 148 JSR 04 lays down the Investigator Practitioner Competencies relating to technical professional knowledge, teamwork /collaboration, customer service and planning and organising/work management. In the Commissioner's Confidence Submission it was stated there were grounds to conclude the applicant had failed, over a lengthy period, to demonstrate these competencies. These competencies, however, are reflected in the duty statements of police officers. 149 Regulation 26 dealt with Remedial Performance Programs. It provided for formal counselling sessions to be undertaken if the police officer's performance continued to be unsatisfactory following local workplace counselling sessions. The principal purpose of formal counselling sessions was to ensure that the police officer is made aware of: (i) those areas in which he or she is failing to fulfil his or her job-stream responsibilities, and (ii) the standard to which his or her performance must be improved, and (iii) the period of time within which he or she must sustain an improved performance in those areas, and (iv) the fact that his or her performance will be closely monitored during that period. 150 It was contended for the applicant these formal sessions were not conducted. The applicant submitted: [A]d hoc meetings were held generally not in a formal sense where the applicant would be questioned at length as to events alleged to have occurred. There appears to have been no real effort during the RPP for the applicant to be provided with constructive feedback. Whilst D/S Evatt may point to conversations relating to playing "devil's advocate" or where he told the applicant that a jury may not understand certain terms there is a real failure on behalf of D/S Evatt as a mentor to undertake formal sessions and provide formal feedback. Perhaps feedback may have been forthcoming if any of the monthly mentor's reports had actually been provided to the applicant but it appears that this did not occur. Finally, and perhaps most tellingly, D/S Evatt had no idea what the details of Regulation 26 were at the time he was appointed as the applicant's mentor. 151 This is not a case where the applicant was dismissed because she failed to satisfactorily complete the RPP. It does seem, however, there was a failure on the part of Detective Sergeant Evatt and Detective Inspector Jubelin to follow the process of reg 26 and conduct formal counselling sessions. The question is whether this deficiency in procedure rendered the applicant's removal harsh, unjust or unreasonable. 152 There were a number of meetings between the applicant, Detective Sergeant Evatt, Detective Inspector Jubelin, Sergeant Taylor, Sergeant Bear, Acting Detective Sergeant Burn and others in the context of the RPP regarding the applicant's conduct, performance and attitude. It is evident that these meetings had little impact on the applicant in terms of achieving an improvement, particularly in relation to attitude. Detective Sergeant Evatt and Detective Inspector Jubelin found it difficult to communicate with the applicant. Detective Inspector Jubelin, in his report to the PMO on 23 March 2006, stated: However, now 18 months after first coming into contact with Alyson I am of the firm belief that there has been absolutely no progress made in these lengthy time consuming discussions with Alyson. This LAC has had trouble placing Alyson in any section in this LAC where she does not cause disruption. As unpleasant as this is to document, there is no person I know within this LAC who is happy to work with Alyson. Staff both junior and senior have approached me and specifically requested that Alyson not be placed in their section or team. 153 In order that I could find the removal of the applicant was harsh, unjust or unreasonable by virtue of the failure to conduct formal counselling sessions, I would have to find those sessions would have made a material difference to the applicant's conduct, performance and attitude. I do not consider there are grounds upon which I could reasonably reach that conclusion. Conclusion 154 With regret, I am led to the conclusion that the removal of the applicant from the Police Force was not harsh, unjust or unreasonable. 155 There were reasonable grounds for placing the applicant on a Remedial Performance Program. The applicant strongly resented that placement. The applicant demonstrated an unwillingness to conform to standards of conduct and performance required in a disciplined force. Her attitude, particularly toward superior officers, was unacceptable. 156 The applicant consistently refused to accept or acknowledge, over a lengthy period, that she was in any way at fault or deficient in her performance, conduct or behaviour; the applicant failed, culpably, to recognise her shortcomings and, therefore, took no corrective action. 157 In weighing in the balance the competing interests I have been acutely conscious of the fact that the applicant is a person who is 60 years of age and has served in the Police Force for 13 years. I have considered closely that evidence favouring the applicant in order to see whether it tipped the balance in the applicant's favour. But it did not. I have also considered closely the respondent's evidence in order to test it for prejudice, exaggeration and triviality. Elements of the respondent's evidence do not support removal. But considered overall, the evidence regarding the applicant's conduct (including her attitude) and her performance, as I have described it in these reasons for decision, left me with no alternative other than to conclude that the applicant is unsuitable to continue as a police officer. 158 The Police Commissioner should not be obliged to continue to accommodate an officer who resists authority, is unable to accept advice or criticism without resorting to an exaggerated emotional response, is disruptive in the workplace and is not able to attain consistently a reasonable standard of performance. Orders and directions 159 I order that the applicant's application for relief is dismissed. 160 The parties have both sought the opportunity of addressing the Commission on the question of costs. 161 The respondent shall have seven days to file submissions on costs with the applicant having a further seven days in which to reply. Unless a party indicates a desire to be heard orally on costs, the question will be determined on the papers. __________________________________ 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.