Commissioner of Police and Wayne Edward Collins [2008] NSWIRComm 162

Industrial Relations Commission of New South Wales

CITATION: Commissioner of Police and Wayne Edward Collins [2008] NSWIRComm 162

APPELLANT Commissioner of Police PARTIES: RESPONDENT Wayne Edward Collins

FILE NUMBER(S): IRC 451 of 2008

CORAM: Walton J Vice-President; Staff J; Backman J

CATCHWORDS: Appeal - Police - Police officer removed under s 181D of Police Act 1990 - Removal arose out of respondent's conduct whilst off duty - Officer pleaded guilty to dangerous driving occasioning grievous bodily harm and driving with high range PCA - Removal found to be harsh at first instance - Respondent reinstated - Appeal by Police Commissioner - Whether limit to use of new evidence of misbehaviour that occurred prior to order made by the Commissioner but not taken into account by Commissioner led trial judge into error - New evidence limited by trial judge to police officer's drinking habits - Held - Evidence relevant for all purposes to consider the question of harshness - Trial judge required to have regard to all the material as part of respective parties cases if properly ventilated - Trial judge erred in finding Commissioner had requisite knowledge of misbehaviour prior to order being made and did not act in face of it - Trial judge erred in confining evidence of misbehaviour to consideration of police officer's drinking habits - Full evidence required to be considered under s 181E(1) and s 181F(1)(c) - Public interest - Test not properly applied - Reconsideration - Appeal upheld - Decision set aside

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Police Act 1990

Clarke and Metropolitan Meat Industry Board [1967] AR 16 Commissioner of Police v Brennan [2008] NSWIRComm 52 Commissioner of Police v Dobbie (2006) 157 IR 44 Commissioner of Police v Evans (2006) 153 IR 144 Commissioner of Police and Raymond Sewell [2008] NSWIRComm 147 Flanagan v Commissioner of Police [2008] NSWIRComm 138 Hosemans v Commissioner of Police (2004) 138 IR 159 CASES CITED: House v The King (1936) 55 CLR 499 Johnston v Commissioner of Police (2007) 169 IR 301 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) AR 231 Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wayne Edward Collins and Commissioner of Police [2008] NSWIRComm 30