Industrial Relations Commission of New South Wales CITATION: Johnston v Commissioner of Police [2007] NSWIRComm 73 This decision has been amended. Please see the end of the judgment for a list of the amendments. Applicant: Peter Glenn Johnston PARTIES: Respondent: Commissioner of Police FILE NUMBER(S): IRC 2066 of 2006 CORAM: Backman J CATCHWORDS: Application for review of an Order of the Commissioner of Police - Police Act 1990 - removal of applicant under s 181D of the Police Act - allegations of misconduct by reason of several instances of illegal access to NSW Police computerised information system (COPS) - conduct exacerbated by a number of factors including untruthfulness in relation to reasons for access and compromising the position of more junior police officers - earlier police detection of initial accesses managed by way of Conduct Management Plan (CMP) - later accesses arranged by applicant while on CMP - applicant charged and convicted in relation to later accesses - applicant severely depressed at the time of later accesses - whether consequences of removal harsh or too severe - whether or not "practicable" to reinstate the applicant - weighing up competing interests of applicant and public interest - removal found not to be harsh, unreasonable or unjust - application dismissed. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Industrial Relations Act 1996 Police Act 1990 Bradley George Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 Cassel v Commissioner of Police [2003] NSWIRComm 73 Commissioner of Police v Dobbie (2006) 157 IR 44 CASES CITED: Director of Public Prosecutions v Jody Maree Morante (unreported, Local Court, 6 May 1998) Little v Commissioner of Police (No. 2) (2002) 112 IR 212 Martin Evans v NSW Police [2005] NSWIRComm 404 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 HEARING DATES: 20/11/2006, 21/11/2006, 22/11/2006. DATE OF JUDGMENT: 2 April 2007 Applicant: Mr B Docking of counsel Solicitors: Oates and Smith Solicitors LEGAL REPRESENTATIVES: Respondent: Mr P Skinner of counsel Solicitors: Crown Solicitors JUDGMENT: - 51 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Backman J Monday, 2 April 2007 Matter No IRC 2066 of 2006 PETER GLENN JOHNSTON v COMMISSIONER OF POLICE Application under s 181E of the Police Act 1990 by Peter Glenn Johnston for review of an order of the Commissioner of Police DECISION [2007] NSWIRComm 73 1 This is an application under s 181E of the Police Act 1990 (the Act) for review of an Order of the Commissioner of Police dated 28 March 2006 under s 181D(1) of the Act removing the applicant from the New South Wales Police. 2 The Order which resulted in the applicant's removal from the NSW Police was based on two principal findings made by the Commissioner. 3 The first finding alleged that the applicant had on two occasions caused an illegal access to be made to the Computer Operation Policing System (COPS system) by two junior police on 24 May 2004 and on 5 July 2004. In addition the applicant was said to have provided false reasons to both junior police in order to justify the accesses. The unauthorised accesses were also said to involve a breach by the applicant of the New South Wales Police Code of Conduct and Ethics. A further finding associated with the circumstances of the unauthorised accesses was that between 24 May 2004 and 11 June 2004 the applicant had engaged in conduct which amounted to the stalking/intimidation of Michael Todd by driving past Mr Todd's home "on a number of occasions" and on one occasion loitering near the home. A further associated finding was that on 5 July 2004 the applicant breached the New South Wales Police Sick Leave Policy when he attended the Nags Head Hotel while on sick leave. 4 The second finding concerned three earlier allegedly unauthorised accesses made to the COPS system directly by the applicant. The first of these occurred on 19 December 2001 when the applicant accessed the system to obtain registration details of his private motor vehicle WRX-00S in order to obtain details of an intelligence report linked to the vehicle. In relation to the second and third accesses the impugned conduct was said to be partly the applicant's failure to establish an appropriate reason for making each access. In relation to one of those accesses which concerned a vehicle, registration number HMB-405, it was alleged that the applicant had been untruthful to investigating police when giving his explanation for the access. In relation to both accesses it was alleged that the applicant failed to keep appropriate records. Following the investigation into these latter three accesses the applicant's salary increment was deferred for six months and he was placed on a six month Conduct Management Plan effective 1 May 2004. At the same time he was given a warning about computer accesses and the consequences of any further unauthorised accesses. The applicant was found to have disregarded this warning when on 24 May 2004 and on 5 July 2004 he arranged through the two junior police officers to access confidential information from the COPS system for his personal benefit and without legitimate reasons. 5 The applicant seeks reinstatement to his former position with the NSW Police. At the time of his removal the applicant held the rank of senior constable. He was on sick leave from about July 2004 until about January 2005 when he was suspended from duty with pay. His weekly gross income was about $800. Factual background 6 The applicant joined the NSW Police on 18 November 1994. He obtained the rank of Senior Constable in November 1999. For the next two years records indicate that the applicant performed his duty with dedication and diligence. He received for example a number of "complimentary remarks" and letters of appreciation from members of the public acknowledging his good police work. On 27 January 2002 he received a Commissioner of Police Olympic citation. 7 On 6 January 2001 the applicant was transferred to Waratah Local Area Command. On 19 December 2001 the applicant accessed COPS without authorisation in order to examine registration details of his private motor vehicle WRX-00S. He had apparently purchased the vehicle two months beforehand and had been told that an intelligence report for firearms existed in connection with it. Almost two years later on 5 September 2003 the applicant approached Sergeant Egan informing the Sergeant that there was an "Intell" on his car and inquiring whether he could have it removed. The applicant on 12 January 2004 was interviewed by Detective Sergeant David Muxlow in relation to the earlier conversation with Sergeant Egan about the intelligence report attached to the WRX-00S. At the commencement of the interview the applicant was informed that the police were conducting an investigation into an illegal access to COPS in relation to WRX-00S. During the interview the applicant conceded that he had directly accessed the system and completed an inquiry on WRX-00S. He was then asked a series of questions in relation to his understanding of police access to the system without authorisation. The questions and the applicant's responses are extracted below: Q27: Are you aware of your responsibilities in respect of accessing police computers? A: Yes. Q28: Do you agree that on accessing police computers a warning is displayed in respect of illegal accesses? A: Yes. Q29: And what is your understand (sic) of that warning? A: Well, if I access I may be, if it's an unauthorised access I could be in trouble, prosecuted. Q30: O.K. Do you believe the access you made in relation to your vehicle was an, was an illegal access? A: Yes. But I thought it was in good faith but obviously yes, it was. Q31: Can you tell me your understanding of the penalties that can be imposed for illegally accessing information on the computers? A: I believe it's monetary value and imprisonment. Q32: The penalties range from criminal sanction which is fine or imprisonment, dismissal or managerial action. Do you understand that? A: Mmm. Yes. Q33: Have you ever viewed the video, No Harm Done? A: I think so but I can't remember. Q34: Have you ever completed mandatory lectures in relation to the, what is required in respect of accessing police computers and what's deemed to be illegal and - - - A: Oh - - - Q35: I believe a couple of years ago there was (sic) mandatory lectures in respect of accessing computers. It's possible? A: It's possible, yeah, but I can't remember. Q36: Can you tell me, you made the access in 2001. A: Mmm. Q37: Can you tell me did you talk to any other police officer about that access, about the Intel Report prior to seeing sergeant Egan? A: No. Q38: Can you remember, do you, can you tell me the reason it took 2 years to, oh, nearly 2 years to approach someone about disposing of the Intel Report? A: There's no real reason. I just suppose that I thought, like, owning a WRX you hear about them getting pulled over all the time and I suppose I just didn't want, you know, getting pulled over or doing a check knowing that, what, that there may be an Intel for firearms or something like that on it an, yeah, and basically, that, yeah, I sometimes go to Sydney a bit - - - O.K. And that was basically it. It was, I just, just suppose I was aware of it I just thought, oh, I'd just try and get it off but that was basically it. 8 The applicant was then informed that the police had an audit report in relation to COPS accesses by the applicant during the period 27 July 2003 to 16 August 2003. His attention was directed to two particular records of access in the audit report. The first access according to the records was at 5.33 am on 3 August 2003 and was in relation to a 1975 yellow Kombi van registration number HMB-405 owned by Stephen James Liddell. After establishing that the applicant had failed to make any independent report of this access the applicant was asked why he made the access. He replied: [I]t just appeared a bit sus. When asked why he didn't then complete an intelligence report in relation to the vehicle he said: [I]t just looked a bit sus but it probably didn't warrant an Intell. 9 In order to place this access by the applicant into its proper context it is necessary to outline some of the applicant's personal history prior to 3 August 2003. The applicant married a fellow police officer in February 2002 who was stationed in Sydney. The applicant at that time was stationed in Newcastle. They planned to arrange a transfer for her as soon as possible to Newcastle. This however did not eventuate. In about April 2003 the applicant commenced a relationship with Constable Megan Wallace who was also stationed at Newcastle. This relationship, according to the applicant, was volatile and they argued a lot. 10 Following the interview Detective Sergeant Muxlow interviewed Constable Wallace on 1 March 2004. She informed the interviewing police that she knew a person by the name of Steve Liddell who visited the house of Constable Wallace's best friend and god-daughter, a person by the name of "Kristie". Constable Wallace said she herself visited the house almost daily. She was interviewed again two days later on 3 March 2004 in relation to the Kombi van HMB-405 and was told that its details had been accessed on COPS at 5.33 am on 3 August 2003. When she was asked her whereabouts at that time she was able to confirm that she had driven to Kristie's house and that she later went to a bowling club. She also confirmed that the applicant had been to Kristie's house on several occasions and that he had met Mr Liddell a couple of times. 11 Armed with this information the police reinterviewed the applicant in relation to HMB-405 on 16 March 2004. The following exchange took place: Question 10: Can you remember why you made the access? Answer: Not knowing exactly, I seen it in the Mayfield area. Question 11: Can you tell me why you needed to make the computer access? Answer: I just didn't think it was right so I did a transport on it. He also said that he had never seen the Kombi before 3 August 2003. He confirmed that he knew Kristie and had been to her house on several occasions. He was then told that the vehicle had been at Kristie's house on 3 August 2003. He said he could not remember. Nor could he recall where he saw the vehicle on that day when he accessed its details on the COPS system. He also admitted that he had failed to independently record the access details. When asked whether he had checked the vehicle's details to see who may have been associating with Constable Wallace, he responded: No. Megan doesn't live there. What reason would I have? Later in the interview the applicant insisted that the vehicle's association with Kristie's house was a coincidence and that he had never seen the car at that address. 12 The following day Mr Liddell was interviewed by the police. He confirmed he owned HMB-405 and that he drove it about twice a week to Kristie's house. He explained that Kristie was his sister-in-law and that he was friendly with her and her husband Richard. He said he knew Constable Wallace who was a regular visitor to the house and he knew that she was seeing another police officer who he knows as "Johnno" and has met "probably twice or three times". 13 The applicant's co-worker on 1 and 2 August 2003, Constable Mary Griffin was also interviewed in relation to the "possible illegal computer accesses" by the applicant. She recalled that either in the evening of 1 or 2 August the applicant drove past a house (conforming to the description of Kristie's house) a few times driving slowly on each occasion. She said there was a Kombi van parked in the driveway and she recalled the applicant remarking "I wonder what the registration of that car is". On both evenings she said she observed Constable Wallace's car parked on the street outside the house and on one of those evenings she saw Constable Wallace crossing the road with a female friend. She said at that time the applicant slowed down the car and watched Constable Wallace through his rear view mirror. She said the applicant later that evening had dropped her off at the station and driven away by himself returning after some forty minutes. 14 Shortly after the completion of the internal investigation into the applicant's unauthorised COPS accesses the police issued an Order under s 173(2)(c) of the Act in which a number of adverse findings were made against the applicant. A principal finding was that the applicant's version with regard to his explanation for accessing the details in relation to HMB-405 on the COPS system (that it was a suspicious vehicle) was not accepted and his account found to be untruthful. He was also found to have breached the New South Wales Police Service Code of Conduct. Pursuant to the Order under s 173(2)(c) his salary increment due on 18 November 2004 was deferred for a period of six months. 15 The applicant was also placed on a Conduct Management Plan for six months commencing on 1 May 2004. The Plan was in direct response to the results of the internal investigation. It reflected a decision at that time not to proceed against the applicant by laying criminal charges but to proceed managerially. It identified the adverse findings made against the applicant following the investigation. These were: 1. An illegal computer access on COPS by looking into his private motor vehicle WRX-00S; 2. Illegal computer accesses on motor vehicle HMB-405; 3. His failure to record the reasons for accessing computer records in relation to a number of enquiries; 4. His excessive use of private mobile telephone which was impacting adversely on his work performance; 5. Being asleep on duty during a team training day on 30 March 2004. 16 A number of strategies and outcomes were set out in detail in the Plan. In addition to increased supervision and additional training regimes the applicant was warned about the consequences of future detection of illegal computer accesses. The first specified outcome was that the applicant have an understanding of why the matter of illegal computer accesses is considered to be very serious and a clear understanding of the consequences should his conduct continue. Under the Plan the applicant was also assigned a mentor with whom he was to meet weekly and who was to provide support and welfare as required. The applicant was also subjected to increased computer audits and encouraged to make an individual record of each access. Restrictions were placed on the use of his personal mobile telephone while on duty. The Plan also clearly stated: Failure to complete the outcomes as described in this Conduct Management Plan may lead to consideration of reviewable action in accordance with s 173(2) of the Police Service Act 1990 or termination in accordance with s 181D of the Police Service Act 1990. 17 For completeness it should be mentioned here that the third finding made against the applicant set out in the Conduct Management Plan (and in relation to which the strategy and outcomes were also directed) involved an allegedly unauthorised access to the COPS system by the applicant on 13 August 2003. This access was in relation to a motor vehicle, registration number XAV-126. The applicant was also asked a series of questions in relation to that vehicle by Detective Sergeant Muxlow during his interview of 12 January 2004. The internal investigation does not appear to have made any adverse findings in relation to the vehicle except concerning the applicant's failure to independently record his reasons for access. 18 On 26 September 2003 during the internal investigation into the three alleged unauthorised COPS accesses the applicant first saw a general practitioner, Dr Jason Hart, in relation to a range of problems including work stress, relationship problems and panic attacks. According to the applicant Dr Hart diagnosed him with depression and prescribed anti-depressant medication, as well as recommending the applicant take sick leave. The applicant in fact took sick leave from October 2003 until January 2004. He also commenced counselling sessions with a clinical psychologist Judith Dyer. Ms Dyer first saw the applicant on 1 October 2003. She made a clinical finding that the applicant was "clearly depressed" when he first visited her. 19 On 24 May 2004 Constable Wallace and a person by the name of Michael Todd went out to dinner. At this stage it appears that her relationship with the applicant had ended. The couple returned to Constable Wallace's residence about 8.30pm. Mr Todd left his vehicle (registration number WVU-871) parked outside the residence. A short time later the applicant knocked on the front door calling Constable Wallace's name. Neither she nor Mr Todd answered the door. After the applicant left, Mr Todd drove his vehicle home. Constable Wallace followed Mr Todd in her own vehicle. At about 10.40pm that same evening the applicant contacted Senior Constable Frank Ziliotto and requested a check of a vehicle on the COPS system saying: [T]here is a car that is following me and it's a bit sus. 20 Senior Constable Ziliotto refused the request but at the applicant's behest transferred his call to Constable Troy Andrews. The applicant then asked Constable Andrews to complete the check saying: Can you do a check for me? I've got a car it's a bit dodgy, I think it's been following me...the registration number is WVU-871. Constable Andrews obliged having satisfied himself that the reason given by the applicant for accessing the system in order to check the vehicle's details was lawful. As a result of Constable Andrew's access on the applicant's behalf the applicant was provided with information in relation to WVU-871 namely that the registered owner was Mr Todd and his home address. Later in the evening of 24 May about 10pm and after Constable Andrews had accessed the details for the applicant, Mr Todd saw a black WRX (which fit the description of the applicant's vehicle) driving past his house and slowing down as it drove past. About fifteen to twenty minutes later when Mr Todd was outside the front of his house having a cigarette he saw a marked police car driving past. He then had a conversation with Constable Wallace during which he said "enough was enough". He added that, "she needed to sort out her life with Peter Johnston". Later that same evening when he was again at the front of his house smoking a cigarette he saw the same black WRX driving up the street. He stepped out into the light so that he could clearly see. He saw the registration details of the WRX which were PJ 2000 (the applicant's vehicle). He saw that the vehicle slowed down as it drove past his house then it accelerated and did not return. He said to Constable Wallace: Look you have to do something. He (referring to the applicant) can't go and look up my details. He must have to know where I live. 21 About two weeks later on Friday 11 June 2004 Mr Todd while at the front of his house again saw a black WRX driving around and then parking on the side of the road facing up the street in the direction of Mr Todd. Mr Todd walked into the middle of the road so that the driver of the vehicle (who he believed to be the applicant) would see him. As he did so he saw the black WRX suddenly reverse into a driveway and drive away. Mr Todd expressed "extreme concern" at these events. He believed that a police officer had accessed his personal details for unauthorised purposes. He also said that this was a major factor in his decision not to develop his relationship with Constable Wallace. 22 At about 9.30pm on Friday 4 July 2005 Adam Johnson and his girlfriend Lisa Eastlake drove to Constable Wallace's residence in order to stay the night. Mr Johnson parked his vehicle at the front of the residence. According to him his vehicle remained there all night. At about 10.30pm the same night Constable Kevin Johnston, attached to the police station at Waratah, was told by a fellow officer that the applicant had been ringing him. The Constable did not return the applicant's call at that stage. Later at about 1.00am another police officer advised the Constable that the applicant wanted to speak to him on the telephone. Constable K Johnston spoke to the applicant who said to him: Kev, I want you to do a favour for me...there's a sus car out the front of my place...the rego number is AJO-212. 23 These details corresponded to the registration number of Mr Johnson's vehicle which at that time was parked outside the front of Constable Wallace's residence. Constable K Johnston entered the registration number in the computer. When the details were displayed on the screen Senior Constable Ron Cropper tapped him on the shoulder and informed him not to give out any information to the applicant. Constable K Johnston then ended the telephone call and was told by Constable Cropper that the applicant had been asking other police to perform checks on vehicles parked outside or near Constable Wallace's premises. Throughout the remainder of the night Constable K Johnston received several telephone calls on his mobile telephone from the applicant. He did not respond to these because his mobile had been left in a truck while he was attending to duties away from the police station. He answered the last call from the applicant at about 4.30am. The applicant at that time asked Constable K Johnston to call him when he returned to the station. Although the Constable agreed to do this he had no intention of contacting the applicant. 24 The applicant was formally interviewed by Inspector Gavin Dengate on 25 August 2004 in relation to the two COPS accesses made on his behalf on 24 May 2004 and 5 July 2004, as well as other related matters. During the interview the applicant candidly admitted requesting both accesses. The applicant's answers also implied that he was requesting the accesses without authorisation. Extracts of the interview concerning the accessing of Mr Todd's vehicle detail's on 24 May 2004 illustrate these points: Q:13 I have been informed that on the evening of Monday the 24th of May 2004 you contacted the Waratah Police Station and spoke to an officer on duty. Is that correct? ... Q:15 Did you contact an officer at Waratah about this date and ask an officer to do a check on a vehicle for you? A: Yes. Q16: Who did you ask? A: Initially it was Senior Constable Ziliotto, he declined I then spoke to Constable Troy Andrews. ... Q25: Who else did you speak to that night? A: Constable Troy Andrews. Q26: Whom did you get the details off? A: Constable Troy Andrews. Q27: What details did you obtain? A: Just the owners name and address Q28: Why did you ask for a check on that particular car? A: I don't know, at the time I was very anxious, depressed. Q29: Where was the car when you saw the registration number? A: Outside Constable Wallace's residence. Q30: What is her address? A: 3 Buxton Street, Adamstown. Q31: Where were you? A: I had come from home to have a talk to her and that's when I noticed the car there. I knocked at the door, no one answered, I became upset as in crying and I was more depressed and anxious, confused. ... Q47: Do you see now that your actions amount to a criminal offence? A: I see now that it was wrong but I didn't think it would amount to a criminal offence. Q48: Are you aware that each time you log onto a Police computer and access details of other persons it clearly indicates that the accesses must be for a lawful purpose? A: Yes. Q49: Do you agree that in this case your actions have clearly breached the Police Service's Code of Conduct relative to unauthorised computer access? A: In hindsight yes but like I said at the time I just wasn't thinking rationally. Q50: It's been alleged sometime after you were given the information by Constable Andrews concerning Michael TODD's personal details, you attended his address. What do you care to say about that? A: I didn't attend his address however I drove up the street and then down the street. Q51: What car were you in? A: My car. Q52: Was anyone else in your car? A: No. Q53: What time was this? A: I think, I think maybe 11 to 11.45 I think. Q54: Is that pm? A: Yes. No sorry it would be ten instead of eleven. Q55: On how many occasions did you drive past that night? A: I remember the two, that's it. Q56: Are you counting driving up the street and then back down the street as one or two occasions? A: Two. Q57: Did you slow down as you passed Michael TODD's house? A: I don't remember. Q58: Did you see Megan Wallace's car that night? A: Yes. Q59: Where was it? A: I think it was parked out the front of Michael's place. 25 The applicant also conceded during the interview that the day after Mr Todd's vehicle details were accessed, Constable Wallace had confronted him about driving past Mr Todd's house the evening before. She also asked the applicant whether he had accessed Mr Todd's details on the police computer. The applicant said he told her that Constable Andrews had accessed the details for him. The following series of questions and answers then form part of a transcript of the record of interview: Q87: When Megan said, You better go and talk to Troy and you better explain to him that you are worried about a person following you, what did you understand this conversation to mean? A: That she was helping to cover up what I had done and to give Troy an excuse so that we wouldn't get into trouble. Q88: So that at that time, the morning following the access made by Constable Andrews, you would have been aware the access you requested and obtained was unlawful? A: No. I was still anxious and confused as to what was happening. 26 In relation to Mr Johnson's vehicle, details of which were accessed on the applicant's behalf on 5 July 2004, the applicant explained that he had gone to the Nag's Head Hotel that evening and that sometime after that he had driven past Constable Wallace's residence and seen the vehicle which belonged to Mr Johnson parked at the front. When he saw the vehicle he said he became "panicked" and "stressed". He asked Constable K Johnston to check the registration details of the car. At the time he requested the details and notwithstanding his conversation with Constable Wallace some weeks earlier about the unauthorised access to Mr Todd's vehicle details, he did not think of his actions as amounting to unlawful computer access. Nor did he consider the consequences. 27 The applicant also agreed that he had taken sick leave at the time he went out to the Nag's Head Hotel and later sought to obtain the details of Mr Johnson's vehicle. 28 Towards the end of the interview the applicant indicated that the nature of the relationship with Constable Wallace lay at the heart of his depression when he said: [D]uring our relationship Megan made numerous threats to tell Fiona (the applicant's wife) about our relationship. I think this can be verified by her mother. She has also been violent towards me on occasions for example, she asked me to make her a sandwich, whilst I was making her a sandwich I wasn't cutting the tomato right. She went off and because I was so stressed out and depressed I then threw the knife down on the floor and said if you are not happy with it do it yourself. She then became very angry and told me to fuck off and get outside. I tried to explain that I am under a lot of stress and pressure. She thought I threw it at her but I didn't. She grabbed me by the throat and forcibly pushed me outside and she told me to fuck off and if I ever come back near her she will get an AVO out on me. She threatened to get an AVO on numerous times. I then left upset. She then contacted me about three days later apologising. Megan's got a very bad temper and it seems that when she doesn't get what she wants she gets upset and because of this I had about three months of (sic) from August last year for depression and stress caused by her. It was at this time I started taking anti-depressants and I believe I started seeing a psychologist during that time. She has given me a black eye in the past without being provoked. On one occasion I believe it was April this year she sat off my house for about two hours which can be verified by a neighbour. 29 Following advice from the DPP (State) the applicant was charged with two offences under s 308H of the Crimes Act 1900 of unauthorised access to restricted computer data. The charges related to the COPS accesses on behalf of the applicant on 24 May 2004 and on 5 July 2004. At the same time the applicant was charged with stalking and intimidating between 24 May 2004 and 11 June 2004 with the intention of causing Mr Todd to fear physical or mental harm. The applicant was convicted of the two computer access charges at Newcastle Local Court on 16 March 2005 following pleas of not guilty to both charges. The charge of stalking/intimidation of Mr Todd was dismissed. Notice under s 181D(3)(a) 30 On 13 January 2006 the applicant was given notice under s 181D(3)(a) of the Police Act by the Commissioner of Police that he was considering the applicant's suitability to continue as a police officer. A number of grounds set out in the Notice were relied upon by the Commissioner. These grounds are extracted below: 1. At the conclusion of an investigation conducted by Detective Inspector Dengate in mid 2004, the following findings were made: That you, on two occasions, caused an illegal access to be made on the NSW Police computerised information system by junior police colleagues (Constable Troy Andrews and Constable Kevin Johnston). the two accesses occurred on 24 May and 5 July 2004 and, in each case, you were seeking details of vehicles parked outside the home address of your ex-girlfriend, Constable Megan Wallace (WVU871 and AJO212). You gave Constable Andrews and Johnston false reasons to justify why you wanted the accesses done. You were subsequently charged with two counts of Unauthorised Access to Restricted Computer Data (pursuant to Section 308H of the NSW Crimes Act 40/1900). On 16 March 2005, at Newcastle Local Court, the presiding magistrate, Mr Morahan found these offences proved. On 10 May 2005, after considering a pre-sentence report, Magistrate Morahan indicated that he wished to impose a 50 hour order for volunteer work and adjourned the matter to 1 June 2005, where a formal conviction would be recorded with a Section 9 bond (with one condition of this bond being that you perform 50 hours of volunteer work with the Salvation Army). On 1 June 2005, you appeared before Magistrate Morahan where a formal conviction with a Section 9 bond being imposed for a period of 12 months. You completed 50 hours of community service, prior to your appearance at court on 1 June. When you arranged for junior police colleagues to make the abovementioned unauthorised computer accesses without having a legitimate reason for doing so (and by providing false reasons to them), you breached the NSW Police Code of Conduct and Ethics. That, between 24 May and 11 June 2004, you engaged in conduct which amounted to the stalking/intimidation of Mr Michael Todd. This conduct, which caused Todd considerable concern, included obtaining his home address from the NSW Police information system, driving past his home on a number of occasions and, on one occasion, loitering nearby while Mr Todd was out the front of his house packing to go on a fishing holiday. You were subsequently charged with one count of Stalking/Intimidation (pursuant to Section 562AB of the NSW Crimes Act 40/1900). On 16 March 2005, at Newcastle Local Court, the presiding magistrate, Mr Morahan dismissed this charge, finding it not proven. It was the view of the magistrate that you were not seeking to intimidate or stalk Mr Todd when you attended his address, but were simply looking for Constable Wallace. However, the magistrate commented that, based on the evidence given by Mr Todd during the court proceedings, Todd has sufficient grounds for an AVO. Although this charge was dismissed, your conduct brought the NSW Police into discredit/disrepute. From the perspective of Mr Todd and Magistrate Morahan, you have engaged in conduct unbecoming of a serving police officer. In doing so, you have tarnished the reputation of the NSW Police in the eyes of the community. The Code of Conduct and Ethics states, inter alia: "Lawful behaviour while off-duty is not of concern unless it brings, or has the potential to bring, discredit to the NSW Police. All officers have an obligation to act and be seen to act by the public in accordance with the spirit and the letter of the law...whether on or off duty". That you breached the NSW Police Sick Leave Policy when, on 4 July 2004, you attended the Nags Head Hotel while on sick leave (reportedly suffering from headaches and neck pain). The sick leave policy indicates that an officer on sick leave is to be home unless attending to domestic responsibilities (e.g. picking up children from school) or attending to health-related matters (e.g. a doctor's appointment). 2. Arising out of an investigation conducted by Detective Sergeant Muxlow in early 2004, the following findings were made: On 19 December 2001, you made an unauthorised access on the NSW Police computerised information system to look at the registration details of your own private motor vehicle, WRX00S and an intelligence report linked to this vehicle. When interviewed by Detective Sergeant Muxlow on 12 January 2004, you conceded that this access was illegal (q.30). In accessing your vehicle's details in the way that you did, you breached the Code of Conduct and Ethics. In relation to computer accesses made on motor vehicles HMB405 and XAB126, you failed to establish an appropriate reason for making each access. When interviewed by Detective Sergeant Muxlow, you were unable to provide a clear, cogent explanation for these two accesses and hence prove beyond reasonable doubt that they were authorised accesses made in accordance with your official police duties. You were untruthful (in breach of the Code of Conduct and Ethics) in relation to the explanation/reason you gave for accessing motor vehicle HMB405 and details in relation to where you saw this vehicle. It was the view of Detective Sergeant Muxlow, supported by Superintendent L Shearer, that you had accessed HMB405 for personal reasons to find out with whom your girlfriend, Constable Wallace, was associating. It was also found during the course of the investigation that you did not keep an appropriate record of your reason for accessing computer records (either by utilising the 'reason for access' option on the computer or by recording it in your police-issue notebook). You had not done so when accessing records relating to motor vehicles HMB405 and XAB126. When interviewed by Detective Sergeant Muxlow, you were reminded of your responsibilities when accessing the confidential information contained within the NSW Police computerised information system (including the need to record reason for access). At the conclusion of the investigation, reviewable management action was implemented, under section 173(2) of the Police Act 1990 , in respect of your untruthfulness (deferral of increment for six months). You were also placed on a six-month Conduct Management Plan, which took effect on 1 May 2004. As part of the Plan, you were given a warning about your computer accesses and the consequences of any unauthorised accesses detected in the future. You disregarded this warning when, on 24 May and 5 July 2004, you arranged for junior police colleagues to access confidential information on your behalf without having a legitimate reason for doing so (as referred to in Ground 1 above). It is of grave concern that you caused unauthorised accesses to be made (and used false reasons to get police officer of a junior rank to conduct these accesses), despite having been warned of the consequences of making unauthorised accesses and having been reminded of your responsibilities when using the confidential information contained within the NSW Police computerised information system. You have shown a blatant disregard for the advice and warning issued to you by senior officers and have not demonstrated the level of professionalism, integrity and ethical decision-making I would expect of a serving police officer. Based on the abovementioned Grounds 1-2, you are hereby notified that I am considering making an order for your removal from the New South Wales Police under section 181D of the Police Act 1990. In accordance with section 181D(3)(b), prior to making my decision, you are herby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. 31 On 22 March 2006 the applicant forwarded a response to the Commissioner's s 181D(3)(a) Notice in a nine page submission offering reasons why he should not be removed. These reasons will be referred to in detail later in this Decision. Removal order under s 181D(1) 32 On 28 March 2006 the Commissioner nevertheless determined to remove the applicant from the NSW Police. The Order was in the following terms: I, Kenneth Edward Moroney, Commissioner of Police, having considered your conduct and integrity , do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the NSW Police. In reaching my decision, I have carefully considered the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to section 181D (3) (a) of the Police Act 1990. I have taken into account the written response from your legal representative. The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this Order. 33 Attached to the Order was a Statement of Reasons which is set out in full below: I am required to make a determination under s181D (1) of the Police Act 1990 , in respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you, pursuant to s181D (3)(a) of the Police Act 1990 on 31 January 2006. I have also taken into account your written submission provided through your solicitor in response to the grounds set out in my Notice. I have given careful consideration to all the material that has been presented to me in this matter. I provide the following reasons for my determination: 1. At the conclusion of an investigation conducted by Detective Inspector Dengate in mid 2004, the following findings were made: That you, on two occasions, caused an illegal access to be made on the NSW Police computerised information system by junior police colleagues (Constable Troy Andrews and Constable Kevin Johnston). The two accesses occurred on 24 May and 5 July 2004 and, in each case, you were seeking details of vehicles parked outside the home address of your ex-girlfriend, Constable Megan Wallace (WVU871 and AJO212). You gave Constables Andrews and Johnston false reasons to justify why you wanted the accesses done. You were subsequently charged with two counts of Unauthorised Access to Restricted Computer Data (pursuant to Section 308H of the NSW Crimes Act 40/1900). On 16 March 2005 at Newcastle Local Court, the presiding magistrate, Mr Morahan found these offences proved. On 10 May 2005, after considering a pre-sentence report, Magistrate Morahan indicated that he wished to impose a 50 hour order for volunteer work and adjourned the matter to 1 June 2005, where a formal conviction would be recorded with a Section 9 bond (with one condition of this bond being that you perform 50 hours of volunteer work with the Salvation Army). On 1 June 2005, you appeared before Magistrate Morahan where a formal conviction was recorded with a Section 9 bond being imposed for a period of 12 months. You completed 50 hours of community service, prior to your appearance at court on 1 June. When you arranged for junior police colleagues to make the abovementioned unauthorised computer accesses without having a legitimate reason for doing so (and by providing false reasons to them), you breached the NSW Police Code of Conduct and Ethics. That, between 24 May and 11 June 2004, you engaged in conduct which amounted to the stalking/intimidation of Mr Michael Todd. This conduct, which caused Todd considerable concern, included obtaining his home address from the NSW Police information system, driving past his home on a number of occasions and, on one occasion, loitering nearby while Mr Todd was out the front of his house packing to go on a fishing holiday. You were subsequently charged with one count of Stalking/Intimidation (pursuant to Section 562AB of the NSW Crimes Act 40/1900). On 16 March 2005, at Newcastle Local Court, the presiding magistrate, Mr Morahan dismissed this charge, finding it not proven. It was the view of the magistrate that you were not seeking to intimidate or stalk Mr Todd when you attended his address, but were simply looking for Constable Wallace. However, the magistrate commented that, based on the evidence given by Mr Todd during the court proceedings, Todd had sufficient grounds for an Apprehended Violence Order. Although this charge was dismissed, your conduct brought the NSW Police into discredit/disrepute due to the fact that, from the perspective of Mr Todd and Magistrate Morahan, you had engaged in conduct unbecoming of a serving police officer. In doing so, you have tarnished the reputation of the NSW Police in the eyes of the community. The Code of Conduct and Ethics states, inter alia: "Lawful behaviour while off-duty is not of concern unless it brings, or has the potential to bring, discredit to the NSW Police. All officers have an obligation to act and be seen to act by the public in accordance with the spirit and the letter of the law...whether on or off duty". That you breached the NSW Police Sick Leave Policy on the 4 July 2004, when you attended the Nags Head Hotel while on sick leave (reportedly suffering from headaches and neck pain). The sick leave policy indicates that an officer on sick leave is to be home unless attending to domestic responsibilities (e.g. picking up children from school) or attending to health related matters (e.g. a doctor's appointment). 2. Arising out of an investigation conducted by Detective Sergeant Muxlow in early 2004, the following findings were made: On 19 December 2001, you made an unauthorised access on the NSW Police computerised information system to look at the registration details of your own private motor vehicle, WRX00S and an intelligence report linked to this vehicle. When interviewed by Detective Sergeant Muxlow on 12 January 2004, you conceded that this access was illegal (q.30). In accessing your vehicle's details in the way that you did, you breached the Code of Conduct and Ethics. In relation to computer accesses made on motor vehicles HMB405 and XAB126, you failed to establish an appropriate reason for making each access. When interviewed by Detective Sergeant Muxlow, you were unable to provide a clear, cogent explanation for these two accesses and hence prove beyond reasonable doubt that they were authorised accesses made in accordance with your official duties. You were untruthful (in breach of the Code of Conduct and Ethics) in relation to the explanation/reason you gave for accessing motor vehicle HMB405 and details in relation to where you saw this vehicle. It was the view of Detective Sergeant Muxlow, supported by Superintendent Shearer, that you had accessed HMB405 for personal reasons to find out with whom your girlfriend, Constable Wallace, was associating. It was also found during the course of the investigation that you did not keep an appropriate record of your reason for accessing computer records (either by utilising the 'reason for access' option on the computer or by recording it in your police-issue notebook). You had not done so when accessing records relating to motor vehicles HMB405 and XAB126. When interviewed by Detective Sergeant Muxlow, you were reminded of your responsibilities when accessing the confidential information contained within the NSW Police computerised information system (including the need to record reason for access). At the conclusion of the investigation, reviewable management action was implemented, under section 173(2) of the Police Act 1990 , in respect of your untruthfulness (deferral of increment for six months). You were also placed on a six-month Conduct Management Plan, which took effect on 1 May 2004. As part of the Plan, you were given a warning about your computer accesses and the consequences of any unauthorised accesses detected in the future. You disregarded this warning when, on 24 May and 5 July 2004, you arranged for junior police colleagues to access confidential information on your behalf without having a legitimate reason for doing so (as referred to in Ground 1 above). I note in your response that you have put forward a number of reasons in mitigation of your actions and have provided reports from your clinical psychologist and doctor. You indicate that, at the time of your actions, you were going through a traumatic time in your life and were suffering mentally and emotionally (apparently due to your inability to resolve issues relating to relationship with your wife and Constable Wallace). You also indicate that you let your emotions and desire for Constable Wallace overcome your common sense. I have given careful consideration to the information you have provided. However, I view most seriously the fact that you again breached the confidentiality of information contained within the NSW Police computerised information system, despite having received a prior warning about the consequences of making unauthorised accesses and being reminded of your responsibilities in relation to accessing confidential information. You showed a blatant disregard for the advice and warnings issued to you by senior officers and it is of further grave concern that you used false reasons to get police officers of a junior rank to conduct these accesses on your behalf. You have abused the trust placed in you as a police officer to maintain the confidentiality of this information on behalf of the community. In your response, you admit being untruthful about your reason for accessing confidential information relating to motor vehicle HMB 405, conceding that you made this access to find out with whom Constable Wallace was associating. You indicate in your response that your access of motor vehicle XAB126 was not done for personal reasons, however Detective Sergeant Muxlow found that you had not recorded a reason for this access (either in RFA or in your police notebook) and were unable to provide an explanation to Muxlow for this access and therefore prove beyond doubt that the access was appropriate (i.e. authorised). With respect to the issue of Mr Michael Todd, you state in your response that I should disregard this ground in my Notice as the stalking/intimidation charge was dismissed by the presiding magistrate. As you correctly point out in your response, this offence was not found proven. Nevertheless, I do take into account the comment made by Magistrate Morahan, that based on the evidence given by Mr Todd during the court proceedings, he had sufficient grounds for an Apprehended Violence Order. While you indicate that you only drove past Mr Todd's home on 24 May 2004 and had no intention of stalking or intimidating him, Mr Todd clearly held concerns about your behaviour and the means by which you were able to locate his home address. I note you are very remorseful about your conduct, however, I cannot condone members of the NSW Police overextending their position and office by misusing the NSW Police information system. The community requires police to uphold and enforce all laws and there can be no doubt the community expects that same standards of lawful conduct of its police as it does of all citizens. You been (sic) convicted of two criminal offences and have breached the NSW Police Code of Conduct and Ethics and the NSW Police Sick Leave Policy. Your level of professionalism, integrity and ethical decision-making in relation to the above matters falls well short of that I would expect of a serving police officer. 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. I therefore remove you from your position as a police officer. Relevant legal principles 34 The power of this Commission to review an order made under s 181D of the Police Act is found in s 181E of that Act. The section provides: Section 181E (1) A police officer who is removed from NSW Police 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). 35 Section 181F of the Police Act governs the procedure to be followed by the Commission when conducting a review under s 181E. Section 181F provides: Section 181F (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from NSW Police 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 NSW Police, and the fact that the Commissioner made the order pursuant to section 181D(1)). 36 Section 181G is also relevant. That section applies the unfair dismissal provisions under Chapter 2 of Part 6 of the Industrial Relations Act 1996 to applications for review under s 181E. 37 In Martin Evans v NSW Police [2005] NSWIRComm 404, Boland J adopted the approach to a review under s 181E set out by the Full Bench in Bradley George Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159. It is convenient to set out the extract in full: [101] Part 6 Chapter 2 of the Industrial Relations Act encompasses the legislative provisions relating to unfair dismissals. That those provisions have application, albeit modified, in relation to reviews under Part 9 Division 1C of the Police Act has been affirmed in prior decisions of the Commission at both first instance and appellate level. For example, in Newton (No 2) at 80, the Full Bench of the Commission stated: The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. [102] Further, in Little (No 2) at 237 the Full Bench cited with approval the observations of Walton J in Van Huisstede (No 1) where his Honour stated at para [212]: Section 181G applies to the provisions of the Industrial Relations Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the Industrial Relations Act , it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act . [103] In endorsing the above observations, the Full Bench in Little (No 2) said at [65]: We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act. That provision has the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Part 6 of Chapter 2 of the Industrial Relations Act in such a manner as to import the provisions of Part 6 to the review proceedings together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act, except where expressly excluded by the provisions of s 181G(1). [104] We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s 181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s 181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows: The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest. It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 38 In a comment on the above extract from Hosemans v Commissioner of Police , Boland J said: [35] It is now a matter of settled law that any decision by the Commissioner of Police to remove a police officer under s 181D of the Police Act because the Commissioner has lost confidence in that officer, is reviewable in a similar manner as dismissals are otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act . That means any consideration of the decision to remove an officer is not confined to the question of whether the Police Commissioner in doing so was justified on objective grounds, but rather whether, having regard to all the relevant circumstances, the removal was harsh, unreasonable or unjust as that test has been developed and applied within the jurisprudence of this Commission over many years. That is how I have approached this matter. 39 In the recent decision of Commissioner of Police v Dobbie (2006) 157 IR 44, the Full Bench endorsed the approach set out in Hosemans v Commissioner of Police (No 2) to a review by the Commission of an Order made under s 181D: [29] The decision of the Full Bench in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 at [134]-[136] is clear authority for the proposition that the Commission's task in undertaking a review of any order made under s 181D of the Police Act was to undertake the review and make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the Commissioner's decision was correct at the time it was made. Consideration 40 In these proceedings the grounds which form the basis of the applicant's removal under s 181D involved allegations of serious misconduct, namely several instances of illegal access to the COPS system either directly or through the innocent agency of junior police officers. In relation to the 24 May 2004 and 5 July 2004 accesses the Commissioner also relied upon the charges brought against the applicant under s 308H of the Crimes Act and the applicant's subsequent convictions in relation to both those charges. Other instances of misconduct which also formed the basis of the Commissioner's Order included a breach of the NSW Police Sick Leave Police on 4 July 2004 (the Nags Head Hotel visit); failures to appropriately record reasons for accessing COPS in relation to the motor vehicles HMB-405 and XAB-126; untruthfulness in relation to the applicant's explanation for accessing details in relation to motor vehicle HMB-405; and, disregarding the warning concerning the consequences of future COPS accesses issued on 1 May 2004 as part of the applicant's Conduct Management Plan. 41 In opening submissions the applicant's counsel, Mr Docking, informed the Commission that the applicant had admitted that on 24 May 2004 and 5 July 2004 he caused illegal accesses to be made by other officers to the COPS system. Under cross-examination by the Commissioner's counsel, Mr Skinner, the applicant agreed that he lied when responding to questions 10 and 11 of his record of interview of 16 March 2004 (referred to earlier in this Decision). Those particular questions had related to the details concerning HMB-405. In his record of interview conducted on 25 August 2004 the applicant volunteered that he had been to the Nags Head Hotel on the evening of 4 July 2004 although he had been on sick leave at the time. In his submission in response to the s 181D Notice the applicant said that on 4 July 2004 he was genuinely unwell and had taken sick leave, but that earlier that evening two other senior constables had told him that they had overheard Constable Wallace say that she was seeing another man. This had upset him and he needed to get out of the house. In relation to his requests for access to the details of motor vehicles WVU-871 and AJO-212 on 4 May 2004 and 5 July 2004 respectively, the applicant said he assumed Constable Wallace was with someone else and so he did not think about the consequences of requesting the checks. He added that he was not thinking rationally on either occasion because he was suffering from severe depression. In the same submission the applicant also said he had been open and honest about accessing his own motor vehicle details on the COPS system on 19 December 2001 and that he did not compromise any other individuals' rights. In relation to the applicant's access to the details of HMB-405 he said that every day he regrets his untruthfulness. In relation to the allegation that he disregarded the Conduct Management Plan he said that he deeply regretted his actions but simply did not think through the consequences. He added: If I had been capable of thinking clearly I do not believe that I would have behaved in this way. It is truly out of character for me. He did not recall why he accessed the details in relation to the motor vehicle XAB-126 although he said it was not for personal reasons. 42 In my view the applicant's conduct which formed the basis of the s 181D Order warranted his removal from the NSW Police. This view may be illustrated by reference to a number of findings available on the evidence. 43 First, at the time of the applicant's unauthorised access to the COPS system in December 2001 there was no evidence that the applicant was suffering depression. Nor is there any evidence upon which it may inferred that the applicant otherwise had any personal problems or any problems over and above what may be generally associated with the work undertaken by members of the NSW Police. The applicant has sought to provide an exculpatory explanation for his conduct by attempting to emphasise that the details he accessed from the COPS system were his own personal details and not someone else's. I do not think the distinction assists him. The gravity of the conduct is not diminished because the access was confined to the applicant's personal details. At that time the applicant had been a serving member of the NSW Police for several years. He had been promoted to the rank of Senior Constable some two years earlier in November 1999. There can be no doubt that the applicant was aware of the importance of maintaining the integrity and confidentiality of the COPS system and of the obvious necessity of exercising responsibility at all times in relation to accesses to the system. This must be especially so given the applicant's relatively senior rank within the hierarchy of the NSW Police. 44 In February 2002 the applicant acknowledged that he had received and read the revised Code of Conduct and Ethics issued by the NSW Police. A further revised Code dated October 2006 was tendered into evidence on behalf of the Commissioner. The Code contains ten principles. Principle 8 deals directly with the requirements and the strict limits which must be observed when accessing, using or disclosing confidential information. Principle 8 provides in full: 8. An employee of NSW Police must only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Policy. The community places significant trust in NSW Police to appropriately manage confidential information. Employees must only access NSW Police information for purposes that are directly relevant to their duties. This information can only be used and/or disclosed for a lawful purpose and in accordance with legislative requirements and NSW Police policy. Before disclosing information you must be satisfied that you are authorised to release the information. All NSW Police information must be managed securely. 45 The Commissioner's Confidence Submission (CCS) contains several audit reports and one short statement of Ms Angela Becus, employed by the respondent as an analyst authorised to conduct auditing functions on the COPS system in relation to both police and civilians. In a short statement Ms Becus provided the following information in relation to the system: The Computer Operation Policing System (COPS) is the property of the NSW Police. The system contains restricted personal, confidential and sensitive information and access is restricted to persons fulfilling a lawful purpose only. The system whilst available to all personnel employed within the NSW Police is password protected and all accesses are auditable. These facts compel the inference that in December 2001, the applicant, while in a position of responsibility and trust, accessed confidential information in full knowledge that his accesses were unauthorised and without any reasonable or lawful excuse. This elevates the applicant's conduct into the most serious category. 46 Secondly, according to the evidence, the applicant began to experience symptoms of depression sometime in 2003 when he commenced a relationship with Constable Wallace. The accessing of details in relation to HMB-405, the applicant explained was at least partly attributable to his mental state, which he said in his record of interview dated 25 August 2004 (extracted earlier) prompted irrational behaviour and a lack of concern for the consequences. In relation to this incident as well as the unauthorised access in December 2001, the applicant was interviewed on at least two occasions and his version compared with the interviews and the statements of other parties including the owner of motor vehicle HMB-405 and the applicant's co-worker, Constable Mary Griffin. Not surprisingly given the overwhelming evidence which tended to directly contradict the applicant's versions, he was disbelieved. In fact, the applicant lied on a number of occasions when formally questioned about the reasons for his accessing of the details concerning the motor vehicle HMB-405. In the 1 March 2004 record of interview he said that he accessed the details because the vehicle, "...just appeared a bit sus". Later in the interview in reply to a question as to why he didn't complete an intelligence report on the vehicle he said, "...it just looked a bit sus but it probably didn't warrant an intell". 47 It will be recalled that after the interview, statements were obtained from the various persons involved in or connected to the applicant's access to the HMB-405 details. On 16 March 2004 the applicant was reinterviewed and again asked why he accessed the details. Again the applicant lied, seeking to justify the access by saying, "...I just didn't think it was right so I did a transport on it". 48 The applicant's lies told over a period of time in relation to his reasons for access serve to compound the seriousness of his conduct. At this stage the applicant had read and received the Code of Conduct and Ethics. He would have been well aware that his unauthorised accesses constituted serious breaches of confidentiality and trust. 49 Thirdly, the applicant's conduct having been fully investigated, the decision was taken not to proceed against the applicant by bringing criminal charges against him but to subject the applicant to the Conduct Management Plan. This Plan it will be readily observed from the evidence was carefully and comprehensively tailored to facilitate the applicant's return to full operational duties so that he could continue to serve as a full time and valued member of the NSW Police. Considering the extent of the applicant's transgressions the Plan focussed on strict supervision and consistent monitoring of the applicant's progress. It was impressed upon the applicant that the consequences, should the Police detect any further illegal computer accesses, could be severe and, that failure to complete the outcomes described in the Plan could result in the applicant's termination under s 181D of the Act. 50 The CCS reveals that following the commencement of the Plan the applicant's performance in relation to his adherence to the various strategies and outcomes was consistently and comprehensively monitored over a period of time. Sometime in October 2004 a Performance Development Plan review conducted by Sergeant Dan Skelly notes that the applicant is subject to a high level of supervision and has no COPS access. At the end of the review Sergeant Skelly remarks that the applicant's duties are basic and boring and that he should be performing more effective work. The Sergeant proposes that the applicant be given supervised access to the COPS system in order to allow him to perform warrants/summons and station duties. 51 The applicant was effectively given a second chance when he entered the Conduct Management Plan. Despite genuine attempts made by the Police to facilitate his return to full operational duties, and, despite the clear warnings concerning the consequences of any further unauthorised accesses, the applicant chose to disregard the efforts of his supervisors and the warnings when he engineered the accessing of confidential information on two more occasions. He also seriously compromised the position of two junior constables by convincing them that the reasons for both accesses were lawful and involved genuine police work. As a result, at least one officer was himself subjected to an internal investigation although ultimately no adverse findings were made against him. In addition the two accesses made on 24 May 2004 and 5 July 2004 also involved, as did the access in relation to the motor vehicle HMB-405, the personal and confidential information of innocent members of the public who were entitled to have the information kept outside the public domain and who were also entitled to trust in the integrity of the system and those utilising it so that it was not open to abuse. Mr Todd, for example, expressed, "extreme concern", that a police officer had access to his personal details without authorisation and as a result knew where he lived. Mr Todd's concerns were exacerbated when the applicant drove past Mr Todd's private residence on two occasions. 52 Fourthly, the applicant was not entirely candid about the circumstances in which he accessed the details from COPS in relation to his own motor vehicle in December 2001. In his submission in response to the s 181D(3)(a) Notice the applicant asserted that after he accessed the COPS system for details in relation to his private motor vehicle he approached an intelligence officer to see if the "Intell report" apparently connected to the vehicle could be removed. He added, "once again, I was open and honest about my conduct in a way that was contrary to my interests". In the record of interview of 12 January 2004 the applicant informed the interviewing police that he thought the access, "was in good faith". It emerged however during the interview that the intelligence officer, a Sergeant Egan, had not in fact been approached by the applicant in relation to the prospect of removing the Intell report on the motor vehicle until some two years after the applicant had accessed the details without authorisation. When he was asked why it took two years to approach someone about the "Intell report" the applicant did not provide a satisfactory explanation: There's no real reason. I just suppose that I thought like owning a WRX you hear about them getting pulled over all the time and I suppose I just didn't want, you know, getting pulled over or doing a check knowing that what that there may be an intell for firearms or something like that on it and yeah and basically that yeah I sometimes go to Sydney a bit... and that was basically it. It was, I just, just suppose I was aware of it, I just thought, oh, I just try and get it off but that was basically it. 53 Much of the evidentiary basis for these findings does not appear to be in dispute. The findings which I have made lead me to conclude prima facie that the applicant's removal under s 181D was neither unjust, nor unreasonable, nor harsh. Nevertheless, the primary focus of the applicant's submissions has been on the first limb of the tripartite test, namely, whether his removal was, in all the circumstances, harsh or too severe. 54 Consideration of this issue directs attention to the consequences of removal. The obligation on the Commission to have regard to the issue when it properly arises from the relevant material was the subject of comment by the Full Bench in Little v Commissioner of Police (No. 2) (2002) 112 IR 212: [71] The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate 'justification' in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act . [72] Further, the provisions of s 181F of the Police Service Act point to a further reason as to why the challenged decision was in error. Section 181F(1)(b) requires that the Commission consider, in an application brought under s181E, the case presented by the applicant as to why the removal of a police officer was harsh, unreasonable or unjust. Such a case was brought by the officer in this matter, both in his submissions to the Commissioner (made pursuant to s 181D(3)(b)) and before the Commission at first instance). In such circumstances, putting the consequences of the removal out of account or, to be treated in such a way as to be overborne by other considerations, such as the 'justification' for the Commissioner's basis for forming a conclusion, was, in our view, wrong. That approach was plainly contrary to the provisions of s 181F of the Police Service Act, which requires that the Commission consider such matters when they arise in the applicant's case. So much would also seem to follow from the provisions of s 181F(3)(a) whereby the Commission is expressly required to consider the "interests of the applicant". That consideration plainly requires that the consequences for the applicant of his or her dismissal be a material consideration. 55 Section 181F of the Act has been earlier set out in this Decision. In particular, the interests of the applicant, balanced against the public interests, which incorporate police interests in maintaining the integrity of the NSW Police, provide a framework in which the consequences of the applicant's removal may be assessed. 56 A classic exposition of the application of the principles when considering the consequences of dismissal or removal from employment is found in the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J, in Loty's Case ([1971] AR 95 at p99), the Commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the Tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 57 Metropolitan Meat Industry Board, and the decision of the Full Bench in Little's case, propose that where an application by an applicant against his or her removal or dismissal from employment has failed to satisfy the tripartite test under the Act, the Commission must nevertheless have regard to the harshness or severity of such removal and may, if the circumstances permit, reinstate the applicant on the ground that those circumstances support a finding that the removal has been shown to be too harsh a consequence. This approach is mirrored by s 181F(3)(a) of the Act. As the Full Bench in Little's case observed, that provision requires a consideration of the consequences of an applicant's removal. 58 The applicant, in written submissions, relies on a number of mitigating factors in order to show that his removal, in all the circumstances, was too severe or too harsh. These factors are: (a) the applicant had years of satisfactory service within the NSW Police, including recognition by way of complimentary remarks and good police work; (b) the applicant, at all times, coped with the stress arising from performing NSW Police work and there is no suggestion that such stressors had any adverse affect on him; (c) the applicant's relationship problems commenced in early 2003 and his depression was precipitated by severe emotional stressors; (d) the applicant suffered a medical condition in the form of major depression that he suffered from for several months before seeing a general practitioner on 26 September 2003 and at least until April 2005. That depressive illness played a substantial role in his unprofessional conduct, although it was multi-determined; (e) the applicant, according to Ms Judith Dyer, clinical psychologist as at 8 March 2006 has now removed himself from the situation that precipitated his depression, that is, the romantic triangle, and was beginning to get his life back on track. This has continued as shown, for example, by the fact that he is now at the same weight that he was when he joined the police force; (f) the applicant's major depression, according to Dr Westmore, as at 23 August 2006, has resolved; (g) the applicant is at low risk of re-offending. He is unlikely to make similar mistakes again as his judgment and ability to make decisions is back to normal; (h) the applicant has demonstrated an understanding of his depression. The applicant understands that he can return to the psychologist in the future if required and he is complying with the treatment of taking prescribed medications. Despite the NSW Police only paying for the first six sessions under its employee assistance programme, the applicant continued psychological counselling with Ms Dyer. As Dr Westmore explained, the applicant is now educated about depression; (i) the reinstatement of the applicant could be conditional upon him entering into a Deed in the form satisfactory to the Commissioner by which the applicant covenants that for such period that he remains a member of the NSW Police: (i) he is subject to psychiatric and/or psychological assessments as reasonably directed by the Commissioner and the NSW Police and that any assessments are to continue for such period the applicant remains a member of the NSW Police or a shorter period, as determined by the Commissioner; (ii) the applicant is to continue with his medication whilst that is the recommendation of his treating general practitioner and/or psychiatrist; (iii) the applicant will report to his Local Area Commander, or such other officer nominated by the Commissioner, if the type or dosage of his medication changes; (iv) the applicant will report to his Local Area Commander, or such other officer nominated by the Commissioner, any emotional or mental problems; (v) the applicant is to be subject to such computer audits as his Local Area Commander, or such other officer nominated by the Commissioner, considers appropriate; (vi) the applicant agrees to the Commissioner removing (and/or deferring) increments; (vii) the applicant agrees to be subject to a conduct management plan for no less than six months; (j) the applicant (if ordered by the Court) is to receive no back-pay since date of removal; (k) the applicant has expressed remorse, contrition and acceptance of responsibilities; (l) the applicant is in desperate financial and personal situation; for example, if he is not reinstated he will lose his house. 59 I propose to comment on each of these factors put forward by the applicant. Factor (a) 60 The applicant's satisfactory performance within the NSW Police for many years has been earlier remarked upon and acknowledged in this Decision. Factors (b)-(h) 61 According to the applicant, after he commenced a relationship with Constable Wallace, he became depressed and this condition affected his actions in relation to the unauthorised accesses to the COPS system. His condition has been confirmed in a number of reports tendered into evidence on his behalf. The applicant was first diagnosed with depression when he visited a general practitioner, Dr Jason Hart, on 26 September 2003. Dr Hart prescribed Efexor, and anti-depressant medication. Dr Hart's report chronicles a successive number of visits between 26 September 2003 and 1 February 2006 during which, at various times, the applicant's medication dosage was increased. In relation to the last reviews of the applicant's condition by Dr Hart, which took place between 12 January 2005 and 1 February 2006, Dr Hart comments that his condition was, "much the same", and that the prognosis is, "... that he will have the depression as a chronic condition". 62 Commencing from 1 October 2003, the applicant saw Ms Dyer, a clinical psychologist. Ms Dyer says that the applicant was "clearly depressed" during the period October 2003 until at least April 2005, at which time his "depression score" was recorded as "high/moderate". In February 2006, following a reassessment, she says, somewhat contradictorily to Dr Hart, that the applicant's depression symptoms had become mild, which she believes indicates that the applicant has recovered from his depression. 63 On 23 August 2006, the applicant visited Dr Westmore, a forensic psychiatrist. In a report dated 29 August 2006, Dr Westmore concluded, based on the history provided by the applicant, that the applicant had developed a depressive illness sometime during 2003, that it took a chronic course which required medication, and that at the time of the applicant's examination on 23 August 2006, the "major depression" had resolved, and he was at a "low risk of re-offending". Dr Westmore, however, added a cautionary note, commenting that although the applicant's prognosis was, "probably reasonably good ... having once developed a depressive illness he is probably at greater risk of redeveloping further illnesses of that type in the future". 64 In relation to the role played by the applicant's depressive condition in the unauthorised accesses to the COPS system, Dr Westmore said: If there is no previous history of inappropriate professional behaviour as a police officer, then it would be reasonable to assume that his major depression played some role in the unprofessional conduct engaged in by Mr Johnson when he had, and later requested, unauthorised computer access regarding various motor vehicles. His behaviour however was likely to be multi-determined in its origins with his depressive illness playing a substantial role, but other factors involving his personality are also likely to have been relevant. I would note again however, that he does not have an anti-social personality disorder, but some personality vulnerabilities which are likely to be present in this man. Extended clinical contact with him would be necessary to enable me to comment in more detail about his personality, structure and profile. Psychiatrists understand that when individuals suffer major depression their judgment can be impaired. 65 Dr Westmore also gave evidence in the proceedings during which he largely confirmed the contents of his report. He agreed that his diagnosis was dependent upon the account provided to him by the applicant whom he saw only on one occasion. He also confirmed that the applicant, as at the day that Dr Westmore gave his evidence in the proceedings, was still taking the same medication at the same dosage. In cross-examination, Dr Westmore was questioned about an opinion he had offered in his report about the applicant's knowledge at the time of the unauthorised accesses to the system, namely, that he was breaching departmental policy. He said: There was no history that I got which might lead me to believe that he would not have known, being an experienced police officer, he would have had some understanding that what he was doing was wrong. At the time he said, "I wasn't thinking"; that was his explanation. He possibly could have said, "I wasn't thinking clearly", but there was no psychiatric reason, which I could identify, no presence of mental illness, as such, which would deprive him of the capacity that he should not know, that he would know not to do that, that he would not know not to do that. Factor (i) 66 Conditions which are sought to be imposed if the Commission decides to reinstate the applicant to his former position within the NSW Police may fall for consideration at a later stage of this Decision. Factors (j) and (k) 67 These factors are noted. Factor (l) 68 The applicant in his statement prepared for these proceedings says that he had been, "struggling to make ends meet". He is presently self-employed and works in the Newcastle area cutting lawns and gardening for which he says he earns about $200 per week. Since being placed on suspension, first with pay and then without pay, and then removed under the s 181D(1) Order, the applicant estimates that he has suffered economic loss (as at 31 October 2006) in an amount of $83,731.27. This amount does not include legal fees. The applicant also describes his loss in terms of lifestyle, contentment and job satisfaction as, "incalculable". He says he loved his job as a member of the NSW Police and describes the day he was removed as "...truly one of the worst days of my life". 69 In his oral evidence during the proceedings the applicant said that if he is not reinstated to his former position he will have to sell the matrimonial property. He also described his financial situation as "very desperate". Mr Docking's submissions sought to emphasise what he called the applicant's, "...desperate financial situation and personal and economic loss". He handed up an extract of the Crown Employees (Police Officer-2005) Award which sets out the base salaries for non-commissioned officers and includes the applicant's rank of senior constable which he held prior to his removal. Under the Award a senior constable level 1 earns a base salary of $53,976. At the time of these proceedings the applicant by comparison earned only $200 per week. 70 As these factors suggest it is not in dispute that the applicant for a number of years as a serving member of the NSW Police acquitted himself satisfactorily and achieved a number of accolades attesting to his good police work. A number of character references attached to the applicant's submission to the Commissioner are warmly supportive of his integrity, capabilities, sense of professionalism and generally respectful nature. Nor can there be any doubt that the applicant's economic and financial circumstances have suffered since his removal. On the other hand the evidence also suggests that the applicant is young and healthy and self-employed running a gardening maintenance business and therefore may be said to have reasonable prospects for his economic future. The inference available from the evidence concerning the applicant's mental state is that he is still at least mildly depressed to the extent that he remains on anti-depressant medication. If, as the applicant suggests, his depression lay at the heart of his misconduct in relation to the unauthorised COPS accesses (as well as his behaviour associated with those accesses including his lies to both investigating officials and junior police), then it is somewhat difficult to be confident that the misconduct will not recur. This view has received some support from Dr Westmore's evidence. More significantly, Dr Westmore's assessment that it was "reasonable to assume" that the depression played "some role" in the misconduct, was predicated upon the condition that the applicant had exhibited no prior inappropriate behaviour as a police officer. The December 2001 unauthorised access, however, discloses that this condition cannot be relied upon to support the assessment. 71 The consequences to the applicant of removal under s 181D(1) are also directly relevant to the applicant's interests to which I have had regard as required under s 181F(3)(a). These interests, as earlier adverted to, must be balanced against the public interest, one aspect of which is the interest of the NSW Police in maintaining the integrity of its institution. The respondent in advancing this interest relies on the evidence of Superintendent David Edwin Swilks given during the proceedings. Superintendent Swilks is the resident Commander of the Waratah LAC, the applicant's station at the time of his removal. 72 Superintendent Swilks raised a number of concerns if the applicant were to be reinstated. According to the Superintendent these concerns are such that it would not be "practicable" to reinstate the applicant. His concerns have been set out in his statement tendered into evidence. In summary form they propose: (a) The applicant's criminal record arose as a direct result of disobeying police policy and directions from senior officers. Those actions call into question the applicant's credibility and expose him to attack at any time during which he may be required to give evidence under oath in court; (b) the applicant's rank of senior constable would require him to direct and lead junior officers. His removal under s 181D however undermines those responsibilities since his actions leading to his convictions and removal were directly related to his abrogation of responsibility as a senior member of the New South Wales Police and involved his manipulation of junior officers for unlawful purposes. He could therefore not be entrusted to supervise, lead or direct junior officers and would himself require close supervision. These matters which inspire a lack of confidence in the applicant would also preclude him from being posted to a one man station or from being be sent out unsupervised on patrol; (c) access to confidential information via the COPS system is a core component of the duties of a New South Wales Police officer. The applicant's conduct which resulted in his risk management following several breaches of the guidelines and his criminal convictions would require constant supervision of the applicant while he was logged into the COPS system; (d) Constable Wallace remains stationed at Waratah LAC and is herself presently undergoing "management action". It would not be appropriate to transfer her at this time; (e) six internal police witnesses are currently attached to Waratah LAC; (f) the NSW Police have concerns about the consequences of any recurrence of the applicant's depression and its impact on his decision-making capacity and whether he will be able to adequately perform as a police officer in the best interests of the community. 73 All of these concerns in my view have substantial merit, both individually and collectively. Were the applicant to be returned to full operational duties he would at some stage, in all probability, be required to give evidence under oath. Prosecutorial duties of disclosure would require that the defence be informed of the applicant's criminal record. The nature of the offences, involving as they do breaches of confidentiality and honesty, may well be perceived to impact on the applicant's credibility as a witness. Reinstatement of the applicant to his former position as a senior constable would, by virtue of his rank, place the applicant in a position where he would be expected to direct and lead junior officers. The circumstances of his conviction and removal however (and general police awareness of those matters) may serve to undermine the applicant's authority and his ability to direct and lead in the eyes of both junior and senior police. 74 In order to fully discharge his duties the applicant would need to have access to the COPS system. I agree with Superintendent Swilk's view that in light of the applicant's conduct the applicant's access to the system would require constant supervision. This view is reasonable given the history of the applicant's accesses earlier referred to in detail. The first access was direct and occurred when the applicant was not at all affected by depression. The second and third accesses were detected by the NSW Police and the decision made to give the applicant a second chance by choosing to manage his behaviour through the Conduct Management Plan. The applicant abused this opportunity by causing two further unauthorised accesses on both occasions, lying to junior police officers and seriously compromising their positions. In addition, the COPS system is necessarily an open one requiring constant access by most members of the NSW Police in order to properly and efficiently discharge their duties. The necessity to maintain an open system in turn gives rise to opportunities for abuse. It is imperative that the public can be confident that members of the NSW Police will access the system only for lawful purposes. The system contains personal and confidential information which the public is entitled to have protected, with access restricted only to those instances where it is properly authorised. It is equally imperative that the NSW Police can properly acquit itself of that public confidence. 75 The fact that Constable Wallace and six other members of the NSW Police involved in the applicant's internal investigation remain stationed at the Waratah LAC may pose administrative problems for the area if the applicant were to be reinstated. 76 The Superintendent's concerns that the applicant's depression may recur and negatively impact on his performance as well as his conduct, are well founded. First, the applicant has sought to explain his behaviour in relation to the last four COPS accesses on the basis that he was severely depressed and was not therefore thinking rationally or thinking about the consequences. The applicant has not fully recovered from his depression. Although he says he remains mildly depressed he also remains on anti-depressant medication for an indefinite period. Furthermore, Dr Westmore gave the applicant a rather cautious prognosis when he remarked that, "...from a psychiatric perspective it is probably reasonably good". Of perhaps even greater significance however was Dr Westmore's additional observations about the likelihood of a recurrence of the applicant's depression, namely: [H]aving once developed a depressive illness he is probably at greater risk of redeveloping further illnesses of that type in the future. This observation in particular would tend to confirm Superintendent Swilk's concerns. 77 Secondly, Dr Westmore's analysis of the applicant's condition suggests that although the applicant was depressed at the time he accessed, or caused to be accessed, confidential information in August 2003 and on 24 May and 5 July 2004, and therefore did not care about the consequences, he nevertheless knew at those times that his conduct was wrong. In cross- examination when asked to confirm this view he said: There was no history that I got which might lead me to believe that he would not have known, being an experienced police officer, he would have had some understanding that what he was doing was wrong. At the time he said, "I wasn't thinking "; that was his explanation. "I wasn't thinking". He possibly could have said, "I wasn't thinking clearly" but there was no psychiatric reason which I could identify, no presence of mental illness as such which would deprive him of the capacity that he shouldn't know, what he would know not to do that, that he would not know not to do that. 78 In addition it was Dr Westmore's opinion that the applicant's conduct was not influenced solely by his depression but was "multi-determined". Dr Westmore suggested "personality vulnerabilities" as likely contributing factors. If this is correct then it represents an additional risk that may confront the NSW Police in assessing whether or not the applicant's impugned conduct may recur. In this regard the fact that the applicant was a repeat offender, having accessed the COPS system without authorisation on five separate occasions between December 2001 and July 2004, (the first access unaffected by any symptoms of depression) must add to this concern. 79 Thirdly, the December 2001 access reveals that on at least one occasion the applicant knowingly, without authorisation, and unaffected by depression accessed the COPS system. Dr Westmore's conclusion that there are "...no psychiatric reasons why (the applicant) could not be considered favourably to return to the NSW Police..." was dependent in no small measure upon an assumed condition that the applicant while a serving member of the NSW Police had no previous history (that is prior to his depression) of "inappropriate behaviour". Again this must add to the Superintendent's concerns that the applicant's inappropriate behaviour in accessing confidential information without authorisation may recur. 80 Mr Docking's proposed conditions of reinstatement, focussed primarily on monitoring and controlling the applicant's depression should it become more severe. Apart from placing further administrative burdens on the NSW Police, the above analysis suggests that the conditions would not necessarily dispel or alleviate the risk that the applicant may nevertheless attempt further unauthorised accesses. 81 The applicant also sought to rely on twenty-three decisions in order to rebut Superintendent Swilks' contention that reinstatement of the applicant would not be "practicable". Most of the decisions involved assaults by police officers. This type of conduct may well give rise to different public interest considerations from conduct which involves dishonesty and breaches of confidentiality and trust such as the present matter. This is especially so where most of the decisions deal with isolated incidents as opposed to a pattern of consistent conduct. The public may well maintain its confidence in a member of the NSW Police who has on one occasion only or in relation to one isolated incident indulged in misconduct, such as an assault. The majority of the decisions also reveal that the assaults were perpetrated when the officers in question were intoxicated. While this brief comparison by no means attempts to excuse the misconduct it does serve to illustrate that in considering applications such as the present by reference to other instances of police misconduct, each matter must turn on its own facts. 82 In the decision of Cassel v Commissioner of Police [2003] NSWIRComm 73 Peterson J in deciding to reinstate the applicant was influenced to a not insignificant extent by the fact that the applicant's misconduct which related to sexual harassment and other inappropriate behaviour, had been successfully managed under a management plan. The decision of Director of Public Prosecutions v Jody Maree Morante (unreported, Local Court, 6 May 1998) contains some similarities to the present matter. Constable Morante had pleaded guilty to two counts of unlawful access to data stored in a computer and was discharged under s 556A of the Crimes Act 1900 (the predecessor section to s 10 of the Crimes (Sentencing Procedure) Act 1999. The circumstances that gave rise to the offences were that the defendant discovered that her husband was having an extramarital affair and the details she accessed from the computer related to the person she believed was romantically involved with her husband. At the time of the offences the defendant was also suffering from depression. According to the applicant, Constable Morante remained in the NSW Police and was promoted to Senior Constable. Nevertheless despite some factual similarities between Morante and the present matter, there are fundamental differences. Constable Morante's conduct did not result in a criminal conviction. It also encompassed two instances as opposed to the applicant's five instances which took place over a lengthy period of time, between December 2001 and 5 July 2004. These differences would preclude any meaningful assessment being made between the two matters in relation to the practicability or otherwise of the applicant's reinstatement. 83 The applicant also maintains that there is an evidentiary burden on the Commissioner to prove why reinstatement of the applicant is not "practicable" by reference to why it was not impracticable for other officers in similar circumstances to continue serving in the NSW Police. Whether the Commissioner bore an evidentiary burden in relation to material which may have been available would, as a threshold consideration, depend upon establishing the relevance of that material. It is difficult to discern the immediate relevance of the decisions referred to above, for example, to the issue of practicability of the applicant's reinstatement. The applicant provided a summary of those decisions dealing with the assaultive conduct. It reveals that in only two of the decisions were the officers removed under s 181D(1) Orders. In another decision the officer in question resigned. In other decisions some did not face criminal charges or were acquitted of charges following hearings. Others were subject to Commissioner's Warning Notices while in other cases no further action was taken. The diversity of these responses by the Commissioner highlights again the necessity to focus on the individual circumstances of each case, and why the Commission is not particularly assisted by material which may or may not have been available to the Commissioner and utilised by him in any individual assessment made of the practicability or otherwise of an officer's reinstatement. 84 In addition to these matters the Commission must in the exercise of its discretion under s 181F(3)(a) weigh up the myriad of factors and strike an appropriate balance between two competing interests, namely the applicant's interest and the public interest. These factors have already been dealt with in considerable detail in this Decision. 85 All of these considerations lead me to conclude that in weighing up the applicant's interests and the public interest as I have done, the scales must fall in favour of the public interest. I therefore find that the applicant's removal was neither harsh, unreasonable nor unjust. 86 I should add for completeness that the applicant in his submissions in response to the s 181D(3)(a) Notice contended that he was denied procedural fairness by the Commissioner on the basis that he did not receive certain material upon which he said the Commissioner had relied when deciding to serve the Notice. The submission was not further expanded upon in the evidence. Nor was it the subject of any submissions by the parties in the proceedings before me. It is therefore not necessary to consider the issue and I decline to do so. Orders 87 The Commission makes the following order: (1) The application is dismissed. ______________________________________ AMENDMENTS HISTORY: 05/04/2007 - . - Paragraph(s) . 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.