Industrial Relations Commission of New South Wales CITATION: Raymond Sewell v New South Wales Police Force. Application by Raymond Sewell for review of an order under s 181E of the Police Act 1990 [2008] NSWIRComm 93 APPLICANT: Raymond Sewell PARTIES: RESPONDENT: NSW Police Force FILE NUMBER(S): IRC 1259 of 2007 CORAM: Haylen J CATCHWORDS: Police officer - termination of employment - review under s 181E Police Act 1990 - s 181D - s 181F - s 181G - operation of principles of review considered - onus remains with officer - Briginshaw principles applied - sexual harassment and sexual assault of women over period of two months - officer transferred to new location - takes up heavy drinking with new associates - mixes alcohol with medication - aberrant behaviour over short period in 22 year career - officer ceases drinking and engages in healthier lifestyle - Commissioner of Police accepts steps taken to address problem behaviour and contrition of officer but removes officer from Service - extensive medical evidence - no medical reason or illness established as causing offensive behaviour - all allegations established against officer - review involves balancing exercise - conduct serious but unfair to terminate services - officer reinstated without payment of lost salary and without continuity of service during period of termination Evidence Act 1995 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 s 181D(3)(a) Allchin v New South Wales Police 2007] NSWIRComm 76 Brennan v Commission of Police [2007] NSWIRComm 229 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Kavanagh v NSW Police (2003) NSWIRComm 474 Little v The Commissioner of Police (No 2) (2002) 112 IR 212 Starr v Commissioner of Police (2001) NSWIRComm 226 HEARING DATES: 26/11/07, 27/11/07, 28/11/07, 29/11/07, 21/02/08, 04/03/08, 25/03/08, 18/04/08 DATE OF JUDGMENT: 6 May 2008 APPLICANT: Mr A Metcalfe of counsel SOLICITORS: Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT: Mr A Searle of counsel SOLICITORS: Crown Solicitors JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HAYLEN J 6 May 2008 Matter No IRC 1259 of 2007 RAYMOND SEWELL v NEW SOUTH WALES POLICE FORCE Application by Raymond Sewell for review of an order under s 181E of the Police Act 1990 JUDGMENT [2007] NSWIRComm 93 REMOVAL OF A POLICE OFFICER 1 On 26 July 2007, Sergeant Ray Sewell was removed from the Police Service by the Commissioner of Police, Mr K R Moroney, acting under s 181D(1) of the Police Act 1990. Sergeant Sewell had some 22 years operational experience in the Police Service. He had denied some of the allegations made against him, had accepted that others had occurred and submitted that, having regard to the nature of the matters alleged against him, he should not be removed from the Police Service. Mr Sewell has applied to this Commission for a review of the Commissioner's Order removing him from the Police Service and claims that decision was harsh, unreasonable or unjust. In the Application for Review, Mr Sewell sought relief by way of reinstatement to his position as a police officer. 2 On 31 May 2007, the Commissioner of Police served on Sergeant Sewell a Notice under s 181D(3)(a) of the Police Act stating that consideration was being given to Sergeant Sewell's suitability to continue as a police officer taking into account his conduct and integrity. The matters raised in that notice were as follows: 1. On 1 March 2006 a complaint was made against you stating that between December 2005 and February 2006 you inappropriately touched Ms Michelle Horan on three separate occasions. The first incident occurred in December 2005 at Coonamble Police Station while you were on duty. Ms Horan was at Coonamble Police Station visiting her partner Senior Constable Matthew Dickson. You stood next to Ms Horan while she was talking to Senior Constable Dickson and you placed your left arm around her shoulder, you then squeezed her left buttock. The second incident took place at the Commercial Hotel in Coonamble on New Years Eve 2005 while you were off duty. Ms Horan was in attendance at the hotel with Senior Constable Dickson. MS Horan went to the bar to purchase a drink. You approached Ms Horan and stood behind her. You untied the strings of her 'halter neck' top. Ms Horan grabbed her top to prevent it falling from her body. She turned around to see you standing behind her laughing. Ms Horan said Don't and walked away from you. The incident caused Ms Horan to become upset and angry with you. The third incident occurred on 27 February 2006 at a social gathering of police staff at the Commercial Hotel in Coonamble. During the course of the evening you walked past Ms Horan in the hallway of the hotel. As Ms Horan continued walking you used both your hands and grabbed both of her buttocks and squeezed them hard. Ms Horan stated, "Don't, I have asked you not to do it, I mean it". Ms Horan then walked into the toilets. This further incident caused Ms Horan to become quite emotional and upset, causing her to leave the hotel. On 16 March 2006, you exercised your rights and declined to participate in a criminal interview. You were then the subject of a directed interview under Clause 9 of the NSW Police Regulation 2000. When questioned in relation to the first incident at Coonamble Police Station you admit it is possible you placed your arm around Ms Horan's shoulder, yet denied squeezing Ms Horan's buttock. In relation to the second incident at the Commercial Hotel, Coonamble where Ms Horan states you untied her top, you deny this incident took place. In response to the third incident, which occurred at the Commercial Hotel, Coonamble, you made certain admissions. You admit in your own words that you grabbed Ms Horan on the arse. You further admit that you had been drinking alcohol during the course of the evening and that by 11pm you were pretty pissed by this stage. You state you were taking medication that evening, which you believe may have contributed to your behaviour. You state, "I think the medication has something to do with it but I think its more a lack of self control on my behalf". Ms Horan informed investigating Police that she did not wish for the matter to proceed criminally. However the investigation made sustained findings against you in relation to the three incidents involving Ms Horan. Although you denied that you inappropriately touched Ms Horan in respect of the two initial allegations, Constable Dickson provided corroborating evidence that the incidents did occur. As such the investigation found that you were untruthful in answer to questions regarding the inappropriate touching of Ms Horan on those occasions. 2. Further complaints were made against you by Ms Isabel McDermott, the Area Manager of the Office of Probation and Parole. Again the complaints involved your inappropriate conduct on two separate occasions. The first incident occurred on 29 December 2005, at a social gathering you attended while off duty at the Commercial Hotel Coonamble. Mrs McDermott walked past a table where you were seated, you grabbed her right arm and pulled her around towards you. You said words similar to perfume smells better on breasts or come here and let me smell it. Ms McDermott reported this incident made her feel uncomfortable. On 24 January 2006 while on duty, you attended the Office of Probation and Parole to obtain a statement from Ms McDermott and staff in relation to a disqualified driver. While taking Ms McDermott's statement you made improper comments to her regarding her name badge which was positioned on the right side of her chest. You said words similar to "if that one is named Isabel what is the other?" Ms McDermott and other witnesses employed at the office of Probation and Parole, Ms Marissa Callaghan, Ms Donna Cafe and Ms Pamela Robinson provided statements you told jokes of a sexual nature in the presence of the women. The women all made statements to say that they found your jokes offensive and inappropriate. Further, while you were taking a statement from Ms Callaghan, you suggested to Ms Callaghan that you could take her statement at her home while her husband was at work. You also suggested taking the statement at 3am in the morning. These comments made Ms Callaghan uncomfortable in your presence. In your directed interview you admit that you said words to Ms Callaghan similar to I'll come around and visit you when your husband is away working, at about 3:00am in the morning. The investigation found that you made inappropriate comments to Ms McDermott at the Commercial Hotel while you were off duty. Again, while you were on duty and at the Probation and Parole Office Coonamble in an official capacity you made inappropriate comments to both Ms McDermott and Ms Callaghan. As a result the investigation made sustained findings against you in relation to these incidents. Although you denied that you told jokes of a sexual nature while on official duties at the Probation and Parole Office Coonamble, the employees of the office all provided corroborating evidence that you did so. As such the investigation found that you were untruthful in answers to questions regarding the inappropriate jokes you told to the female staff at the Probation and Parole Office Coonamble. Your conduct in relation to the grounds above has breached the NSW Police Code of Conduct and Ethics 'Discrimination and Harassment' which states: You must not harass or discriminate against your colleagues or members of the public for any reason. Examples of harassment include: * Unwelcome remarks, jokes, innuendoes or taunting about a person's body, attire, marital status, sex, pregnancy, ethnic or national origin, sexual lifestyle or disability * Practical jokes which may cause awkwardness or embarrassment * Persistent and unwelcome invitations, requests or intimidation * Persistent and unwelcome physical contact such as patting, pinching, punching or touching * Essentially, harassment is any behaviour which results in a person feeling threatened, uncomfortable or unable to cope in their work environment You have also breached the NSW Police Code of Conduct and Ethics 'Private Conduct' which states: 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 to be seen to act by the public in accordance with the spirit and the letter of the law including the terms of the Code of Conduct whether on or off duty. You have breached the New South Wales Police Code of Conduct and Ethics 'Statement of Values" which states: Each member of the NSW Police is to act in a manner which: * Places integrity above all * Preserves the rights and freedoms of individuals * Strives for citizen and police personal satisfaction * Ensures authority is exercised responsibly Your inappropriate comments and behaviour do not meet the expectations of the New South Wales Police Force. As such I have significant concerns about your conduct and your ability to behave in a manner that I expect from a New South Wales Police Officer. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Force under Section 181D of the Police Act 1990. MR SEWELL'S INTERVIEW 3 On 16 March 2006, Mr Sewell was interviewed in relation to these various allegations. He was initially informed that police enquiries were being made into three alleged incidents of indecent assault of a female occurring between December 2005 and February 2006. Mr Sewell's first shift at Coonamble police station was on 5 December 2005 and at approximately this time, Ms Horan had complained that he had inappropriately touched her. In the interview, Mr Sewell said he did not recall Ms Horan attending the police station while he was working with Constable Dickson. He was aware at that time that Ms Horan and Constable Dickson were in a de facto relationship and that Sergeant Tim Horan was Ms Horan's brother. When it was put to Mr Sewell that Ms Horan attended the police station to speak to Senior Constable Dickson and that he had walked up to Ms Horan and placed his left arm on her shoulder he said that was "possible". He said he did not recall walking up to Ms Horan's right side and placing his left arm on her shoulder while she was talking to Constable Dickson. He did not recall removing his left arm from Ms Horan's shoulder and placing his arm down her back and then squeezing or pinching her on the left buttock. He did not recall Ms Horan saying, "Do that again and I will sit you on your arse" or that he had laughed at that point or that Constable Dickson had said to him words to the effect, "Don't touch my girlfriend again". 4 When asked if Mr Sewell recalled any similar incident, he stated that Ms Horan had been into the police station a number of times when he had been working there and he had spoken to her and he had put his arm on her shoulder but he had not grabbed her on the buttocks. He denied ever squeezing or pinching her left buttock while she was attending the police station. He said that he would have placed his hand on her shoulder on only a couple of occasions just to say, "Hello, how are you?" but he could not recall when that had occurred. When he had placed his hand on her shoulder, Ms Horan had not on those occasions indicated to him that he remove his hand or his arm. When asked if he had any further information in relation to this incident where it was alleged that he had squeezed Ms Horan on the left buttock while she was at the police station in front of Senior Constable Dickson and while Mr Sewell was working, he replied that he had no memory of it at all and that he did not recall that occasion. 5 In relation to the New Year drinks at the Commercial Hotel at Coonamble, at the interview Mr Sewell said that he gone to the hotel at approximately 7.00 pm or 7.30 pm and was home by 9.00 pm or 9.30 pm. While he was at the hotel he consumed three or four middies of light beer. It was put to Mr Sewell that, while Ms Horan was at the bar of the hotel on that evening ordering a drink, he had walked up behind her and pulled the string around her neck that was attached to her blouse but he denied that happened. He denied that Ms Horan then grabbed her blouse to stop it from falling. Mr Sewell said that Ms Horan did not turn around to him and say, "Don't" and then walked away. He had been in the bar with her but he did not touch her on that occasion. 6 In his interview, in relation to the incident at the hotel on 27 February 2006, Mr Sewell said that drinks had been arranged for approximately 6.30 pm or 7.00 pm for a number of people who had recently been promoted, including himself. Mr Sewell arrived a little after 6.00 pm and began drinking, consuming two schooners in the first 20 - 30 minutes. He then went to the beer garden where money had been contributed for the drinks and there consumed 5 - 6 middies of beer. Prior to the completion of a meal, he had consumed two schooners and five middies and after his meal he continued to drink middies of beer. 7 Mr Sewell stated that, later that night, between 10.30 pm and 11.30 pm, he "was pretty pissed". As he was walking out of the toilet, Ms Horan was walking into the toilet. He said they had been "mucking around", fairly pissed and mucking around in the beer garden and as she walked past him he turned and "grabbed her on the arse". The mucking around had been joking amongst themselves and he thought that she might have said a few times during the night, "Kiss my arse" and that, under the influence of alcohol, made "smart arse" comments such as, "Come over her and I will". Mr Sewell stated that when he grabbed Ms Horan he used both hands and grabbed both cheeks of her buttocks. He said that she then gave him "a serve" and told him that he could not go around doing that to people and "to fuck off". He accepted that it was inappropriate for him to take that action but it took place in the context of them drinking in a long session at the beer garden with a lot of banter and laughter and it was part of the joke but Ms Horan obviously did not take it as a joke and it upset her. She had walked out, picked up her handbag and stormed out of the hotel. Mr Sewell admitted that he had "a fair amount to drink by that stage" and he spoke to Ms Horan's partner, Constable Dickson, and told him that the drink had got the better of him and that he would never do it again and that he would apologise to Ms Horan. He went to Ms Horan's workplace the following day and did apologise to her. He stated that he had "no idea" of the amount of alcohol he had consumed that night. 8 Mr Sewell stated that when told of the purpose of the interview, he indicated that he had apologised to Ms Horan and that his behaviour may have been explained by the medication he was taking. He was taking 20 gms of Arapax tablets, an anti-depressant, that had been prescribed by a doctor and was taking one or two per day. He had been taking this medication since October 2000. On 27 February 2006, he took one tablet at breakfast and one in the afternoon. The second tablet was taken between half an hour to an hour before he left for the hotel that night. Mr Sewell said that he was diagnosed with "post traumatic stress" and in 2002 he had developed a condition where his hair fell out. He was on different medication for that condition. He stated that when he took his present medication, Arapax, and consumed alcohol it had adverse effects, usually hyperactivity. When asked whether he thought the medication may have contributed to his behaviour on the night involving Ms Horan, Mr Sewell said that he though the medication had something to do with it, "But I think it is more to do with lack of self-control on my behalf". During the course of the interview, Mr Sewell was asked how he saw the issue being resolved between Sergeant Horan, Constable Dickson and Ms Horan. In answer he said that he thought the matter had already been discussed but if something was going to happen and he was to be transferred, he would accept being transferred to Walgett or Dubbo. 9 When interviewed in relation to an incident in the hotel on 29 December 2005 involving Ms McDermott and a discussion about using perfume, Mr Sewell said that he had no recollection of the incident and could not recall two tables in the hotel being used for this social occasion. He said that he had been at the hotel on four or five occasions at this type of social occasion when Ms McDermott had been present since he had arrived in Coonamble. The circumstances of the gathering and the allegation were again put to Mr Sewell who said he had no recollection of being present. 10 When interviewed in relation to the alleged behaviour on 24 January 2006 at the Coonamble office of the Probation and Parole Service, Mr Sewell said that he had arrived in the late afternoon and at approximately 4.15 pm was taking statements in relation to a client of the Service who had been driving while unlicensed. Mr Sewell replied that the women in the office were sitting around a table having afternoon tea and there was "some banter" around the office. He had started by taking a statement from Ms McDermott and asked her full name and date of birth. After looking at her name badge on her breast, he did not recall making the comment, "If that one is named Isabel, what is the other?". Mr Sewell replied that the only comment he made during his visit that he might be picked up on occurred while he was obtaining Ms Callaghan's details: he was asking for her home telephone number or home address and "being a smart arse" said he could come around and visit her while her husband was away. Mr Sewell said that he knew her husband who was an Ambulance Officer in Dubbo and had know him for a number of years. After he said that, Mr Sewell told her that he had asked for those details only so he could get hold of her if he needed a statement on a weekend or after hours. That was all that was said. He agreed that, at the time, there were four female employees in the office. 11 During the discussion with the women in the office, Mr Sewell could not recall telling any jokes. He did not recall any jokes with sexual references because he did not tell any jokes at all. He did not know a joke about men in a convent being exposed to a naked woman. He did not tell them that when he was on a rugby trip he got really drunk on rum and on returning home when his wife and family asked him how he was and did he get hurt, he had then dropped his pants in front of all of them. He said that he did not tell them a story about assaulting someone whilst on duty and that the only conversation they had was about the person who was driving while unlicensed and in breach of his parole conditions. He did recall that the story about being drunk and coming home to his wife was a story he had told at the hotel sometime in December. His wife was present at the hotel on that occasion. The major part of the conversation with the four women was about the unlicensed driver and the only "smart arse comment" he made was saying to Ms Callaghan that he could visit her after hours and he immediately stopped that line and told her that he was asking so he could contact her if he needed to obtain another statement from her. 12 Mr Sewell denied telling the women a story about an incident in a cell and dealing with the topic of masturbation and stated that the only comment that he made that might be constructed as inappropriate was what he had initially said to Ms Callaghan. He did not recall one of the ladies standing up and leaving the room while he was speaking to them. He said that, in relation to the comment he made to Ms Callaghan, it was just "an off the cuff smart arse comment". He accepted that it could be construed as inappropriate but he immediately stopped and informed her of the real reason why he needed the details. He realised when he made that comment to her that she looked a bit shocked and that is when he gave the proper explanation of why he needed the details and the possible need for obtaining a statement from her out of ordinary hours. During the interview, Mr Sewell said it was common practice for him to visit witnesses at home and take statements from them. His mention of 3 am was a reference to when nightshift finished and it was a statement that he could come to see her after he knocked off after the night shift. Mr Sewell further stated that he had no intention of visiting the woman at all except for the purposes of obtaining a statement from her. He said that the comment was an attempt at humour and that sometimes humour calmed things down a bit but Ms Callaghan seemed to take offence at the comment that was not intended to be offensive. In hindsight, he agreed that the circumstances of taking this statement did not require light humour and what he said to Ms Callaghan was, in hindsight, totally inappropriate. At the time of this incident, he was still taking anti-depressant medication but he had not been drinking. RESPONSE TO ALLEGATIONS 13 Sergeant Sewell was given 21 days from the service of the s 181D Notice in which to make written submissions regarding the allegations. Sergeant Sewell's Submission in Response dealt in detail with his early family life, the drunken and abusive behaviour he had suffered at the hands of his father, his marriage and family history and a detailed account of his service in the New South Wales Police Force dating from mid-April 1985 when he was sworn in as a Probationary Constable and later from September 1986 when he was confirmed as a Constable. That history included references to dangerous situations he had confronted, including being shot at during a siege and stressful situations arising from his attendance at fatal accidents. 14 Sergeant Sewell dealt with his deep sense of depression and betrayal when, in late 1999, he was charged with two counts of attempting to pervert the course of justice and two counts of aiding and abetting an assault. He was suspended with pay pending the outcome of the matter and spent the best part of 11 months without any contact with members of the Local Area Command and felt that he and his wife had been abandoned by the Police Force. After appearing in the Local Court, he spoke of receiving no support from the Police Force and how there was no record of his suspension and the terms of it and being contacted about those matters while on suspension. During this period he described his health as being in decline and the fact that he suffered bouts of deep depression, anxiety and anger resulting in being prescribed medication and undergoing counselling. He found the lack of support from the Police Force as being "the hardest to comprehend". In August 2001, he appeared in the Dubbo District Court and was acquitted on all counts and reinstated to the Police Service, recommencing duty in early September 2001. 15 In early 2003 Sergeant Sewell said he was diagnosed with Alopecia as a result of a post-traumatic stress disorder, involving significant hair loss although he continued to work. This complaint was accepted by the Police Service as being "hurt on duty". 16 In mid-2004, Sergeant Sewell successfully completed the Operational Support Group ("OSG") course. In December 2005, he was promoted to Sergeant, Team Leader, at the Coonamble Police Station and in February 2005, he completed the OSG Team Leaders Course. On 1 March 2006, he was told by the Duty Officer that a complaint had been made against him but no details were provided. He was told that he would be working 10 and 12 hour shifts commencing in Coonamble and driving to Walgett and returning to Coonamble to complete the shift. This involved a total travelling distance of 230 kms each shift. The Sergeant spoke of suffering an anxiety attack and leaving work for five hours but noting that it was the only occasion he had taken time off due to his medical condition. He then worked for the next six months or so as the shift supervisor in Walgett but in November 2006 he was transferred back to Coonamble as the Sector Supervisor and performed duties in that position from November 2006 until April 2007. He spoke of working long hours because of the lack of support for the area and thereby shouldering a large burden. In his Response, Sergeant Sewell noted that over his 22 years of operational policing experience, he had completed the Associate Diploma of Applied Policing at Charles Sturt University in 1996, had obtained a Bachelor of Policing at Charles Sturt University in 1998 and in 2001 had achieved the Graduate Certificate in Police Management at Charles Sturt University. 17 In relation to the matters raised in the s 181D Notice, Sergeant Sewell said that he had known Ms Horan for a number of years and she had been his hairdresser. When he arrived in Coonamble Ms Horan and her friend, Ms McDermott and a number of local police and local residents, would regularly gather at the Commercial Hotel for drinks and he would attend on a number of such occasions. 18 In relation to the event said to have occurred on 27 December 2005, Sergeant Sewell stated that he did not "specifically recall the incident" although noting that Ms Horan attended the police station on a regular basis and that if he saw her he would speak to her when she was present. The Response then contained the following: It is possible that the incident happened as she has said in her statement. At times I have placed my arm around her shoulders to say hullo, but nothing comes to mind about the particular events of 7 December 2006. It was mentioned in the Notice under s 181D(3)(a) that, when questioned in relation to this incident, Mr Sewell had admitted it was possible that he had placed his arm around Ms Horan's shoulder but he denied squeezing Ms Horan's buttock. 19 In relation to the 31 December 2005 incident at the Commercial Hotel, Mr Sewell drew attention to the fact that he was not only intoxicated but was also taking anti-depressant medication. He accepted that he should not have consumed alcohol to excess or should not have consumed alcohol at all while taking "mood altering medication" but regrettably did so and he now knew it had affected his judgement. After finishing work at approximately 5.00 pm he had returned to his flat and consumed a couple of beers. He then went to the Commercial Hotel and drank some more beer. He had seen Ms Horan and Mr McDermott playing the poker machines and later met them and others in the beer garden and continued to drink. Later in the evening, Ms Horan and Ms McDermott went to the bar. Mr Sewell said he was feeling fairly intoxicated and saw Ms Horan's bra strap on the outside of her blouse and pushed it back under the blouse making a comment that, in hindsight, he felt was inappropriate. At the time he did not regard what he had said as being of a sexual nature, although he thought he was being smart but he now knew that he should not have said what he did. He had not been asked for his version of this event when previously questioned but sincerely regretted the incident and said he would ensure that nothing like that ever happened again. 20 On 27 February 2006, there were drinks in the Commercial Hotel to celebrate police officer promotions, including his own. Mr Sewell said that unfortunately he drank to excess and that late in the evening when he was well intoxicated and was walking back from the toilets, he passed Ms Horan and grabbed her on the buttocks and made another stupid comment. The following day he went to the police station and apologised to Constable Dickson for his behaviour and then went to Ms Horan's workplace and apologised to her for his behaviour. He told her that he would not be drinking in the future and he would not repeat what he had done. He acknowledged that the incident was the result of his "stupidity" when he was intoxicated and stated that he deeply regretted what he had done and was really sorry that he had upset Ms Horan. 21 On 29 December 2005, Mr Sewell had been in the Commercial Hotel with a number of people and was intoxicated. Ms Horan and Ms McDermott had both made comments about perfume they were wearing and Ms McDermott said, "I put it on my tits" and as she said that, pushed out her chest. Mr Sewell took hold of her right arm and put his head down and smelt the perfume and said to someone present words to the effect, "You're right, perfume smells better on breasts". He said that Ms McDermott laughed with everyone else and they continued drinking. 22 On 20 January 2006, Mr Sewell said that he attended the Coonamble Probation and Parole Office and spoke with Ms McDermott and obtained a statement from her. He had looked at her name badge but it only had her first name on it so he then asked for her full name and date of birth. Other members of the staff attended and there was a general conversation in which everyone was involved. He had asked Ms Callaghan for her home address and she appeared to be surprised and then he made "a stupid comment" trying to lighten her mood but he did not think that he suggested anything inappropriate to her. He did not know the joke it was suggested he had been telling the women at this meeting. 23 In this response, Mr Sewell noted that Ms McDermott had appeared in a photograph in a bike magazine displaying her breasts with a number of other females at a function held by the Rebels Outlaw Motorcycle Group. He further noted that since the incidents he had stopped drinking alcohol and had undertaken counselling and his medication had been adjusted. He had commenced a course of physical training with running and weights designed to assist in relieving his stress levels. He sincerely regretted his conduct in relation to all the women involved and gave the Commissioner an assurance that a similar event would not happen again. He offered to attend any type of lecturing or counselling in relation to sexual harassment but assured the Commissioner that the matter had been a lesson to him, both in terms of what was appropriate and also being a wake-up call in relation to his alcohol consumption. He asked not to be removed from the Police Force because if removed he would be unemployed and unemployable at his age and because the financial consequences to his family and to himself would be devastating. He repeated that he had learned his lesson, that he deeply regretted the embarrassment he had caused the "ladies in question" and asked to be given a chance to prove those matters to the Commissioner. COMMISSIONER'S DETERMINATION 24 On 26 July 2007, the Commissioner of Police, having received Mr Sewell's Response to the Notice under s 181D, determined to remove Mr Sewell from the Police Force. In making the Order to remove Mr Sewell from the Police Force and having concluded that, on consideration of his conduct and integrity the Commissioner had no confidence in his suitability to continue as a police officer, the following Statement of Reasons was supplied: I am required to make a determination under s 181D (1) of the Police Act 1990, in respect of whether I have confidence in you as a member of the New South Wales Police Force. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared by in respect of yourself and a Notice (pursuant to s 181D (3)(a) of the Police Act 1990), served upon you, on 14 June 2007. I have also taken into account your written submission 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 mater. I provide the following reasons for my determination: On 1 March 2006 a complaint was made against you stating that between December 2005 and February 2006 you inappropriately touched Ms Michelle Horan on three separate occasions. The first incident occurred in December 2005 at Coonamble Police Station while you were on duty. Ms Horan was at Coonamble Police Station visiting her partner Senior Constable Matthew Dickson. You stood next to Ms Horan while she was talking to Senior Constable Dickson and you placed your left arm around her shoulder, you then squeezed her left buttock. In your response of 13 July 2007 you admit it is possible the events at Coonamble Police Station happened as Ms Horan described them in her statement. You state in your response "Nothing comes to mind about the particular events of the 27th December 2006 (sic)" The second incident took place at the Commercial Hotel in Coonamble on New Years Eve 2005 while you were off duty. Ms Horan was at the hotel in company with Senior Constable Dickson. Ms Horan went to the bar to purchase a drink. You approached Ms Horan and stood behind her. You untied the strings of her "halter neck" top. Ms Horan grabbed her top to prevent it falling from her body. In your response you state you placed Ms Horan's bra strap under her blouse. You admit that you were intoxicated and on medication which you believe affected your judgement. The third incident occurred on 27 February 2006 at a social gathering at the Commercial Hotel in Coonamble. During the course of the evening you walked past Ms Horan in the hallway of the hotel. As Ms Horan continued walking you used both your hands and grabbed both her buttocks and squeezed them hard. Ms Horan stated "Don't, I have asked you not to do it, I meant it." Ms Horan then walked into the toilets. This incident caused Ms Horan to become emotional and upset, causing her to leave the hotel. In your response you admit to inappropriately touching Ms Horan on the buttocks. You state that you were intoxicated on this occasion and that you apologised the following day to Ms Horan for your behaviour. Ms Horan informed investigating police that she did not wish for the matter to proceed criminally. The investigation resulted in 'sustained' findings against you in relation to the three incidents involving Ms Horan. A further complaint was made against you by Ms Isabel McDermott, the Area Manager of the Office of Probation and Parole. Again the complaints involved your inappropriate conduct on two separate occasions. The first incident occurred on 29 December 2005, at a social gathering you attended while off duty at the Commercial Hotel Coonamble. Ms McDermott walked past a table where you were seated, you grabbed her right arm and pulled her around towards you. You said words similar to "perfume smells better on breasts" or "come here and let me smell it" Ms McDermott reported that the incident made her feel uncomfortable. The investigation found that you made inappropriate comments to Ms McDermott at the Commercial Hotel while you were off duty. In your response you admit to making these comments to Ms McDermott and again state that you were intoxicated on this occasion. On 24 January 2006 while on duty you attended the Office of Probation and Parole to obtain a statement from Ms McDermott and staff in relation to a disqualified driver. While taking Ms McDermott's statement you made improper comments to her regarding her name badge which was positioned on the right side of her chest. You said words similar to "if that ones named Isabel what is the other?" In your response you state that you asked her to state her full name and date of birth to complete the statement. Ms McDermott and other employees at the office of Probation and Parole, Ms Marissa Callaghan, Ms Donna Cafe and Ms Pamela Robinson provided statements to you in relation to a disqualified driver. While taking the statements you told jokes of a sexual nature in the presence of women. The Women all made statements to say that they found your jokes offensive and inappropriate. Further, while you were taking a statement from Ms Callaghan, you suggested to Ms Callaghan that you could take her statement at her home while her husband was at work. You also suggested taking the statement at 3am in the morning. These comments made Ms Callaghan uncomfortable in your presence. In your directed interview you admit that you said words to Ms Callaghan similar to "I'll come around and visit you when your husband is away working, at about 3.00am in the morning." Again, while on duty and at the Probation and Parole Office Coonamble in an official capacity you made inappropriate comments to both Ms McDermott and Ms Callaghan. As a result of the investigation a 'sustained' finding was made against you in relation to these incidents. Although you denied that you told jokes of a sexual nature while on duty at the Probation and Parole Office Coonamble, the employees of the office all provided corroborating evidence that you did. As such the investigation found that you were untruthful in answers to questions regarding the inappropriate jokes you told to the female staff at the Probation and Parole Office in Coonamble. I have given close consideration to your response and to your apology regarding your behaviour towards the complainants. I have also considered your promise not to repeat this unacceptable behaviour again and your regret in having conducted yourself in this manner to all the women involved. Despite your contrition, your behaviour has reflected negatively upon your ability to conduct yourself appropriately and in accordance with the NSW Police Code of Conduct and Ethics. I am of the opinion that your conduct and integrity has brought discredit to the NSW Police Force. I have given close consideration to the personal issues raised by you in your response. However, I must also have regard to the wider public duty and the community expectations of its police officers. Your conduct is not the behaviour I expect of a Non Commissioned Officer. My views on this type of behavior are well known and this particular behaviour cannot be sanctioned. As stated in the Notice served upon you on 14 January 2007, your conduct has breached the NSW Police Code of Conduct and Ethics (Harassment) and the NSW Police Code of Conduct and Ethics 'Statement of Values'. Overall your conduct and integrity is viewed seriously by me to the extent that I exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer. 25 The Commissioner's Statement of Reasons referred to the provisions of the New South Wales Police Code of Conduct and Ethics (Harassment) and the New South Wales Police Code of Conduct and Ethics, "Statement of Values". The New South Wales Police Code of Conduct and Ethics, "Discrimination and Harassment" stated: You must not harass or discriminate against your colleagues or members of the public for any reason. Examples of harassment include: · unwelcome remarks, jokes, innuendoes or taunting about a person's body, attire, marital status, sex, pregnancy, ethnic or national origin, sexual lifestyle or disability; · practical jokes which may cause awkwardness or embarrassment; · persistent and unwelcome invitations, requests or intimidation; · persistent and unwelcome physical contact such as patting, pinching, punching or touching; · essentially, harassment is any behaviour which results in a person feeling threatened, uncomfortable or unable to cope in their work environment. 26 The New South Wales Police Code of Conduct and Ethics, "Statement of Values" stated at the relevant time: Each member of the NSW Police is to act in a manner which: · places integrity above all; · preserves the rights and freedoms of the individuals; · strives for citizen and police personal satisfaction; · ensures authority is exercised responsibly. The New South Wales Police Code of Conduct and Ethics, "Private Conduct" stated at the relevant time: 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 to be seen to act by the public in accordance with the spirit and the letter of the law including the terms of this Code of Conduct whether on or off duty. SEWELL STATEMENTS AND EVIDENCE ON REVIEW 27 In an affidavit filed for the purposes of reviewing the Commissioner's Decision to remove him from the Police Service, Mr Sewell repeated the possibility of the incident in late December 2005 occurring as stated by Ms Horan but said that he could not recall squeezing her buttocks. He said that at times he had placed his arm around her shoulders to say hello but nothing came to mind about the particular events of 27 December 2005. 28 In relation to 31 December 2005 incident, Mr Sewell stated that he had finished work at approximately 5.00 pm, had returned to his flat and had a couple of beers and then went to the Commercial Hotel and had a few more beers. He had noticed Ms Horan and Ms McDermott arriving and later went into the beer garden and met with them and others and continued to drink. Later in the evening, Ms Horan and Ms McDermott went to the bar and Mr Sewell admitted to feeling intoxicated. He stated that he saw her bra strap out of the side of her blouse and went to push it back under her blouse and as he did that made a comment which, in hindsight, he accepted was inappropriate. He stated that at the time he did not regard what he had said as being of a sexual nature but he thought he was being "smart" but he now knew that he should not have said what he did. He noted that when he was interviewed about this issue, he had specific matters put to him but he was not asked for his version of events. While he sincerely regretted the incident and stated that he would ensure that nothing like that would ever happen again, he did state that the incident occurred when he was not only intoxicated but when he was taking anti-depressant medication. He accepted that he should not have consumed alcohol to excess and should not have consumed alcohol at all when he was taking "mood altering medication". Regrettably, he had taken that action and he now knew it had affected his judgment. 29 Ms Horan's allegation, however, was not about her bra strap but was an allegation that while standing behind her in the hotel, Mr Sewell had untied the neck straps that held up her blouse and that she had to grab hold of her blouse to stop it falling. In his affidavit filed in the Review proceedings, Mr Sewell repeated his version of events about pushing the bra strap back inside Ms Horan's blouse but denied that he had untied her blouse. He stated that he did not regard anything he said or did as being of a sexual nature and that he though he was being smart although he now accepted he should not have taken this action. Mr Sewell referred to his Response to the Commissioner's Notice and his expression of regret for saying something to Ms Horan at this time but now stated that upon reflection, he could not recall whether he said anything at the time and if he had said something, he did not believe it would have been of a sexual nature nor was it harassment but just being smart. 30 On 27 February 2007, drinks had been arranged at the Commercial Hotel to celebrate a number of officers being promoted including Mr Sewell's promotion. Mr Sewell accepted that, late in the evening when he was well intoxicated, he had walked back from the toilets and Ms Horan had walked past him and at that stage he had grabbed her on the buttocks and had made "another stupid comment". He said he had been drinking to excess during the night and had returned to where the group was sitting and had continued to drink. The next day he attended the police station and apologised to Ms Horan's partner, Senior Constable Dickson. He then went to Ms Horan's workplace and apologised to her for his behaviour and also told her that he would not be drinking in the future and there would be no repeat of his actions of the previous night. After speaking with Ms Horan, Mr Sewell felt that the issue was finalised. He stated that the incident was the result of his stupidity when he was intoxicated and expressed his deep regret for what he had done and stated that he was very sorry that he had upset Ms Horan. 31 In his affidavit in these proceedings, Mr Sewell repeated the essence of the response he had made to the Commissioner's Notice but included some detail about the joking that was taking place amongst the group. At one stage during the night, Ms Horan said words to the effect, "kiss my arse" and he had replied, "come here and I will". It was later in the evening when he was well affected by alcohol that the incident occurred and he recalled Ms Horan's angry response to his action. Mr Sewell said that when he returned to the group and continued to drink with Senior Constable Dickson, he told Constable Dickson that he may have upset Ms Horan. He noted that Ms Horan had left the hotel while he continued to drink with the group. Mr Sewell again referred to his response to the s 181D Notice where he said that, after he grabbed Ms Horan, he had made another stupid comment but upon reflection he could not recall what he said to Ms Horan at the time "if anything". He again expressed his regret for drinking to excess while taking anti-depressants, now realising how it had affected his judgment. 32 On 29 December 2005, Mr Sewell said that he was with a number of people in the Commercial Hotel and he had been drinking and was intoxicated. Ms Horan and Ms McDermott were both present and both had made comments about the perfume they were wearing. Ms McDermott had said, "I put it on my tits" and as she said so, she pushed out her chest: he took hold of her right arm and he put his head down and smelt the perfume, saying to someone present, "You're right, perfume smells better on breasts". Mr Sewell said that Ms McDermott laughed with everyone else and they continued drinking. The context in which this occurred was different to that set out in the Commissioner's Notice. 33 In his affidavit in these proceedings, Mr Sewell essentially repeated that version of events stating that he was already intoxicated and had been drinking with Sergeant Horan when they were approached by Ms Horan and Ms McDermott. Mr Sewell said that he was either standing or sitting on a bar stool at the end of the short table that was connected to the hotel wall and that Ms McDermott was standing immediately adjacent to him on his left hand side. He admitted taking hold of her right arm and putting is head down to smell the perfume. He had the impression that Ms McDermott and everyone else in the group laughed at this incident. Ms McDermott and Ms Horan then went to get a drink at the bar while Mr Sewell and Sergeant Horan continue to drink. 34 On 24 January 2006, Mr Sewell attended the Coonamble Probation and Parole Officer and spoke to Ms McDermott and obtained a statement from her in relation to a reported breach. In his Response to the Commissioner's Notice, he said that he looked at her name badge but it only had her first name on it and then he asked for her full name and date of birth so he could take a statement. In terms, the Response to the Commissioner's Notice did not deny nor did it accept that he had said to Ms McDermott while looking at her name badge, "If that one is named Isabelle, what is the other"?. In the affidavit filed in the Review proceedings, Mr Sewell denied saying these words. 35 In his Response, Mr Sewell stated that, on the same day, he asked Ms Callaghan for her home address and that she appeared surprised. He said he then made "a stupid comment" to try to lighten the mood but at no time did he suggest anything inappropriate to her. The allegation was that, while taking a statement from Mrs Callaghan, he had suggested that he could take the statement at her home while her husband was at work and it could also be taken at 3.00 am. On being interviewed in relation to this matter, Mr Sewell admitted saying words to that effect to Ms Callaghan. In his affidavit in these proceedings, Mr Sewell said he had no recollection of saying anything at the Probation and Parole office on the day that was of a sexual nature. He recalled saying something about visiting Ms Callaghan at home but he had no recollection of saying anything else that could be regarded as sexually inappropriate and he denied saying the things that he was alleged to have said. 36 While at the Probation and Parole office on 24 January 2006, four employees from that office were providing a statement to Mr Sewell about an incident and it was alleged that during the course of that task, Mr Sewell had told jokes of a sexual nature in the presence of the women. The women had stated that the jokes were offensive and inappropriate. At the interview about this matter, Mr Sewell denied that he told jokes of a sexual nature while on official duties. In his Response to the Commissioner's Notice, Mr Sewell denied any knowledge of a particular joke that he was alleged to have told the women. In his affidavit in the present proceedings, Mr Sewell repeated those matters and stated that the joke he was alleged to have told was one of which he had no knowledge. He denied telling a story of when he was dating his wife and being away on a rugby trip and returning home quite drunk and dropping his pants in front of his wife and family when they asked if he had been hurt in the game. While he denied he had told that story to the women at the Probation and Parole office on that day, in his affidavit in these proceedings he said he did recall telling a similar story to Ms McDermott at the hotel on another occasion. In his affidavit, Mr Sewell also said that while he admitted saying something to Ms Callaghan about getting her telephone number and going to her house, that was only a joke: he knew it was inappropriate but it was meant to be a joke and nothing more. He said he had known her husband for years and would never have gone to their home while Ms Callaghan's husband was absent. He denied saying anything about masturbation or an incident in a cell when speaking to the women at this time. 37 In his Statement in Response, Mr Sewell again expressed his sincere regret for his conduct in relation to the women involved and assured the Commissioner that nothing similar would ever happen again. Since the incidents he had stopped drinking alcohol, had undertaken counselling and had his medication adjusted. He had commenced a course of physical training (running and weights) to assist in relieving his stress levels. He offered to attend, at his own expense, any lecture or counselling in relation to sexual harassment although assuring the Commissioner that the matter had been a "salient lesson" both in terms of what was inappropriate as well as being a wake-up call in relation to his alcohol consumption. He stated that he had learned his lesson and he deeply regretted the embarrassment he had caused the women involved and asked for one more chance. In his affidavit evidence in these proceedings, Mr Sewell repeated those views and undertakings and stated that he could not explain his behaviour as he had always respected women and could only suggest that his alcohol consumption, coupled with his anti-depressant medication clouded his judgment and so he had behaved inappropriately. At the interview he had been asked if he thought the medication had caused him to behave the way he did and he replied that it was more a case of him lacking self control: in hindsight, he now stated that he thought his lack of control was caused by a combination of alcohol and anti-depressants. 38 In affidavit evidence in these proceedings, Mr Sewell stated that when he returned to Coonamble in November 2006 until the time he was dismissed, he had worked with Sergeant Horan and Constable Dickson without any apparent difficulties and he had seen Ms Horan around town and at her new places of work being the golf club and the bowling club. He had spoken to her on a number of occasions without incident and had also seen Ms McDermott at a police function at the golf club. He had sat in the same group with Ms McDermott without incident. He had attended a lunch at the police station in honour of Sergeant Horan and it was also attended by Ms Horan and Ms McDermott and he noted that the atmosphere at the lunch was cordial and he did not detect any apprehension from the two women towards him. He had no further dealings with the staff at the Probation and Parole office. 39 Mr Sewell also provided details of his financial position. At the time of his dismissal he was earning approximately $1,500 per week after taxation but was now working at an abattoir earning $16 per hour and clearing approximately $500 per week. He was performing part-time work in a butcher shop on Saturday morning and some evenings being paid $50 for Saturday morning and $20 for any evening work. His wife was working three days per week at the Wellington Hospital earning $720 per fortnight. The ongoing financial commitments to mortgage repayments were nearly $550 per fortnight and there were school fees to be paid for his 14 year old daughter. A detailed breakdown of his family budget showed that he was paying approximately $1,150 in outgoings and that did not include incidental items such as haircuts and unexpected expenses. With his wife's earnings, their combined income was between $815 and $865 per week while the weekly outgoings were now $300 in excess of their combined income. 40 In his oral evidence, Mr Sewell explained that in his statement he had said it was possible that he had squeezed Ms Horan's buttocks while speaking with her and Constable Dickinson at the police station because he had seen two statements that said that he took this action. In his own statement to police he said he could not recall the incident but was not responding to what others had said. 41 In relation to his anti-depressant medication, Mr Sewell said that he now knew how it affected his judgement and how it caused him to lose all control. He had been prescribed anti-depressants from the end of October 2000 after he had been committed by the Local Court and had "gone off like a bomb". He had found himself in Sydney and attended the Police Medical Officer and then attended a Wellington GP and sought the assistance of a counsellor. It was then that he was prescribed the anti-depressant and was taking the tablets once a day. In 2005 there was an alteration in his medication and he was given another tablet because this initial medication was thought not to be working. He was later returned to his original medication taking between a half and full tablet per day. When he was at Coonamble he went on to one or two doses per day and took two tablets if he was anxious. Prior to that he was only taking one tablet per day. 42 Before he had moved to Coonamble, he described his pattern of drinking as involving two or three light beers once every two to three months. He drank a large amount as a young person, in 1992 - 1993, but because he was rostered on call and could not be affected by alcohol, that level of drinking had to be stopped. He explained that, at Coonamble, he was living alone in a small flat close to the police station and working eight or ten day shifts. He travelled to Wellington on his days off to visit his family. At Coonamble he was working 8½ and 9-hour shifts and on most days after the day shift, he would go to the hotel with heavy drinkers from the station and drink full strength beer, and occasionally, bourbon. He was drinking six or seven drinks per session and a session could last for hours. Since these complaints had been made he had stopped drinking altogether except for two light beers he had consumed the previous week before giving his evidence in the Commission. Those drinks were consumed upon him joining a new golf club and were pressed upon him by a group of people with whom he was playing. Before those two light beers, the last alcohol he had consumed was in February 2006 when he had grabbed Ms Horan in the hotel. 43 Mr Sewell described his long shifts at Coonamble and driving long hours when he was directed to perform duties at Walgett and how that affected his life. He said that his living circumstances were such that he could not sit in his small room and simply stare at the wall and so became involved with the heavy drinkers from the police station. He had changed his approach since February 2006 and had taken up a health regime and was running 10 kms per day, learning the guitar and reading the paper. 44 In relation to the Probation and Parole Service incidents, he denied asking Ms McDermott words to the effect if that one's Isabel, what's the other. On that day he also denied telling the story about his rugby trip and said that story had been told in the presence of his wife at the hotel after he had a few drinks. The story was that he had been drinking at the rugby game and when asked whether he had been hurt, he pulled his pants down to his hip to show grazing and bruising but he had not taken off his trousers. He said he had told that story to Sergeant Horan, Ms Horan, Constable Dickson and Ms McDermott at the hotel. He had not exposed himself and had only shown bruising and that was the story he had told but only at the hotel. 45 Mr Sewell explained the circumstances surrounding the criminal charges he faced. He had been suspended on pay. Ultimately, the aiding and abetting assault charges were dropped and the two counts of perverting the course of justice went to the jury but he was found not guilty. After being discharged from these charges he spent three months at Dubbo police station on restricted duties and he was asked to undertake a refresher course because he had been off-duty for 22 months. He was later told that there would be no further action taken in relation to these matters. In oral evidence he said he may have told the story about the Dubbo incident but he did not remember. He denied ever assaulting anyone while on duty and he did not tell such a story to the people at the Probation and Parole Office. 46 In relation to the conversation about perfume at the hotel, when he was interviewed, he denied knowledge of the incident. However, in his Response to the s 181D Notice he gave a version of this event because he had now read Ms McDermott's statement and had refreshed his memory. He said he was not being dishonest in saying he did not remember it at the time and said that sometimes the alcohol and the anti-depressants left him with no recollection what he did the night before. In his oral evidence, Mr Sewell stated that if reinstated to the Police Force he was prepared to give an undertaking that he would not drink or consume alcohol in any way as a police officer. 47 In cross-examination, Mr Sewell said that he remembered the occasion that Ms Horan came to the police station and he remembered putting his arm around her to say "hello" but he said that he did not touch her buttock on that occasion. He said it was possible that had happened because two people had given a statement that it occurred and therefore it was possible. He agreed that he was not "absolutely" telling the Commission that it definitely did not happen but he was saying that he did not remember and it was possible that it did occur. In relation to the allegation about untying Ms Horan's blouse, Mr Sewell had said that he was drinking full strength beer but in his interview with the police he had said that he drank three or four middies of light beer. It was also put to Mr Sewell that, on this occasion, Ms Horan was wearing a strapless bra and so there was no bra strap to push back under her blouse. Mr Sewell rejected that proposition and stated that the only time he touched her was to put the bra strap back under the top. He did not think that the blouse was backless but rather thought that it did have a back. In his interview with the police, Mr Sewell said that he had not touched her but in his submissions to the Commissioner he said that he had pushed the bra strap back under her blouse and accepted there were differences in those statements. He said he had time to reflect on the incident and to give the whole of the story and that accounted for the difference. He now accepted that he did touch her but there was a big difference in what actually occurred and he was not fabricating the evidence. 48 In relation to grabbing Ms Horan's buttocks with both hands, Mr Sewell accepted that it was inappropriate behaviour but denied that he was attracted to her or was "coming on to her" - he was very intoxicated and was drinking beer and a couple of bourbons. However, in his record of interview he said he had two schooners and five middies: that was possibly correct. He did not recollect telephoning his wife on that night and having an argument but in his interview he said he was speaking to his wife and she had hung up: Mr Sewell did not remember this but said it was possible. 49 In relation to the perfume incident at the hotel with Ms McDermott, Mr Sewell thought he was drinking in the main bar with Sergeant Horan although it was possible he was in the beer garden with other people. He denied that he had put his face towards Ms McDermott's breasts and confirmed that Ms McDermott had said the words that she put perfume on her tits. Mr Sewell said that after that incident she laughed and others at the table laughed as well. THE EVIDENCE OF REMAINING WITNESSES Inspector Szaak 50 In oral evidence before the Commission, Inspector Szaak, who investigated the allegations against Mr Sewell, agreed that there were two categories of complaints, one being serious and the other not so serious. The serious complaints concerned alleged indecent assault and the most serious of the complaints had been admitted by Mr Sewell. He regarded all the complaints in relation to what occurred at the Probation and Parole Office as of equal seriousness. While Mr Sewell admitted the statement to Ms Callaghan about visiting her at home when her husband was away and in the early hours of the morning and did so immediately when questioned about it, he regarded Mr Sewell as being untruthful in the other matters regarding the Probation and Parole Service matters. Inspector Szaak made two sets of recommendations. In relation to the three issues of indecent assault concerning Ms Horan, the Inspector recommended that Mr Sewell be demoted to the rank of Senior Constable, that he be given a Commissioner's Warning Notice, placed on a Conduct Management Plan for a minimum of 12 months and to be relocated out of the Castlereagh Local Area Command. In relation to the incident involving Ms McDermott at the hotel and the issues arising at the Probation and Parole Office including statements made to Ms Callaghan, the Inspector recommended that Mr Sewell be served with a Commissioner's Warning Notice, deferred from receiving pay increments for a period of 12 months and to enter into a Conduct Management Plan for a minimum of 12 months. The Inspector regarded these recommendations as appropriate for the two classes of incidents. 51 Inspector Szaak was aware that Mr Sewell was transferred to Walgett for a period of eight months or more and had supervised him from time to time during this period and confirmed that there was no incident adverse to Mr Sewell during this period. The Inspector had known Mr Sewell since late 2005 but was not aware of any previous incidents of this nature and agreed that the matters he investigated had occurred over a short period of two months. Mr Sewell was transferred back to Coonamble after an absence in excess of eight months because of staffing difficulties in the area. The decision to return Mr Sewell to Coonamble was taken by the Commander and he understood that the Commander had informed Ms Horan and Constable Dickson about that proposal and there were no objections raised because they were both moving from the area. The Commander had also spoken to Ms McDermott's superior who indicated there were no difficulties with Mr Sewell's return. Superintendent Single 52 Superintendent Single had made the decision that Inspector Szaak investigate the complaints against Mr Sewell. The Superintendent received two reports from the Inspector and accepted his finding of facts and agreed with his recommendations. In relation to Mr Sewell's performance of duties in Walgett, that was a result of a Risk Assessment and analysis of the nature of the complaints. It was not an official transfer but a relocation from Coonamble to Walgett. The Superintendent was surprised that Mr Sewell was dismissed and believed his conduct to be more stupid than behaviour of a sexually predatory nature. For Human Resources reasons, Mr Sewell was returned to Coonamble and a Risk Assessment undertaken in relation to where he would be going and who would be affected by his return. Those issues were raised and they were discussed with a few people. Sergeant Horan was taking a period of leave to contest the State elections and therefore would not have to work with Mr Sewell on a day-to-day basis. Constable Dickson was about to be transferred and would not be working in the area. There was a meeting with the manager of the Probation and Parole Service and the Superintendent was told that there was no issue provided that Mr Sewell was monitored. The Manager would advise the Superintendent if any issue did arise. Despite Sergeant Horan being upset with Mr Sewell and Constable Dickson being very angry, (especially about the last incident concerning Ms Horan) and there having been a fair degree of animosity, by the time it was proposed that Mr Sewell be returned to Coonamble the circumstances had altered with Sergeant Horan going on leave and Constable Dickson leaving the area and indicating that he was over it and that Mr Sewell could work from Coonamble. Ms Horan 53 Ms Horan had known Mr Sewell since approximately 2000 when she was living in Wellington. While in Wellington, Ms Horan saw no inappropriate behaviour from Mr Sewell who acted professionally. She had operated a hairdressing salon and knew Mr Sewell and his wife and had, from time to time, cut Mr Sewell's hair. When he moved to Coonamble in December 2005, he was looking for a place to live and visited the area with his wife and daughter. Ms Horan had spoken to the family at this time and they were intending to stay in a motel but she invited them to stay at her house where she was residing with her boyfriend, Constable Dickson. Mr and Mrs Sewell accepted the offer and stayed the night. In oral evidence, Ms Horan said that, while Mr Sewell was stationed in Wellington, she experienced no inappropriate behaviour on his behalf. His behaviour towards her over the period of two months between the end of 2005 and early 2006 was unusual. Following the complaints and the number of months Mr Sewell was working out of Coonamble, she had no difficulties with his returning to Coonamble to perform his duties. Ms Horan had taken up part-time employment at the Golf Club and the Bowling Club and had seen Mr Sewell from time to time without experiencing further difficulty with his behaviour. 54 Ms Horan had known Ms McDermott socially for about three years. In late December 2005, Ms Horan had attended the Commercial Hotel with Ms McDermott and had noticed that her brother and Mr Sewell were drinking together. They were sitting in the beer garden. Ms Horan recalled that there was some discussion about perfume but she did not know what was said: she did not hear Ms McDermott say words to the effect that she put perfume "on my tits" or see her push out her chest. Ms Horan did not recall Ms McDermott being close to Mr Sewell at the time nor turning towards the bar area and walking past Mr Sewell when he grabbed her on the arm. She did recall that Mr Sewell bent his head down towards Ms McDermott's chest but she did not hear him say words to the effect, "You are right, perfume smells better on breasts". Ms Horan did not know whether his actions were a joke because she was not listening to the conversation. Ms McDermott did not laugh and she did not know if anybody else laughed but Ms McDermott was quite upset. 55 In relation to the discussion in the police station when Mr Sewell came up to Ms Horan while she was speaking with Constable Dickson, Ms Horan described how Mr Sewell had, firstly, put his hand around her shoulder and they were talking and then Mr Sewell, "put his hand on my bum". He did not leave his hand there and it was not there for long, probably two or three seconds. Ms Horan could not remember whether Mr Sewell squeezed her buttocks but she did push him away with her elbow and told him not to touch her again or she would sit him on his arse. She said that to him in her normal voice and not in a loud voice. Ms Horan believed that Mr Sewell heard her because he laughed at her. She observed Constable Dickson and thought that he had heard what she had said. 56 With regard to the New Year's Eve drinks at the hotel, Ms Horan described how she was waiting at the bar when she turned around to find that Mr Sewell had pulled the string on her blouse top, which had a halter neck. She was wearing a strapless bra and the top of her back was bare. She stated that it was not possible that part of her bra was showing outside her blouse. She denied that Mr Sewell had pushed her bra strap back into her blouse. Mr Sewell just laughed and thought he was probably being funny but Ms Horan said that it was inappropriate and was a stupid act but she did not regard it as being sexually predatory behaviour. After that incident, Ms Horan told Constable Dickson, Ms McDonald and Ms McDonald's husband what had happened but did not tell her brother because he was not present. 57 The incident that occurred in the hotel on 27 February 2006 where Mr Sewell grabbed both cheeks of her buttocks was regarded by Ms Horan as predatory sexual behaviour and an interference with her body. Mr Sewell did speak to her the next day and apologised for his behaviour but she did not believe he was genuine. Mr Sewell told her that these acts only happened when he was drinking and she told him to stop drinking. She did not recall Mr Sewell saying that he would stop drinking. In re-examination, Ms Horan explained that these events occurred some time ago and her recollection was mainly dependant on her statements and they represented her best recollection of those events. Sergeant Horan 58 Sergeant Tim Horan did not witness any of the three incidents involving his sister but he noticed that she was upset on the two occasions that Mr Sewell had touched her while at the hotel. In relation to the last incident on 27 February 2006, a barmaid had told him what had occurred and he spoke with Constable Dickson expressing his concern that this was the third occasion that Mr Sewell had touched his sister and that he was going to do something about it. Mr Sewell had gone to him the next day and expressed his sorrow for the incident. 59 The incident involving Ms McDermott at the hotel had commenced with a group having a drink in the beer garden. There was a table of people and Sergeant Horan was unsure whether his sister and Ms McDermott had walked up or were sitting at the table but he recalled that there was a discussion about perfume but he could not recall Ms McDermott saying words to the effect, "I put it on my tits". Shortly after, Ms McDermott was walking by Mr Sewell and Sergeant Horan saw something like Mr Sewell grabbing hold of her right arm and putting his head down towards her chest and saying words to the effect, "You are right, the perfume smells better on breasts". He did not recall that there was any laughter following that action by Mr Sewell and he though that Ms McDermott was not happy about what had happened and she had not laughed at him. In a witness statement made on 16 March 2006, Sergeant Horan recalled hearing some comment about Ms McDermott's perfume and then seeing Mr Sewell reach out and grab her and at the same time saying words to the effect, "Come here and let me smell it". Mr Sewell looked to be moving his face towards Ms McDermott's bust and she looked to be very uncomfortable and embarrassed. Sergeant Horan could hear Mr Sewell "sniffing" loudly and Ms McDermott shrugged him off but he was not sure if she said anything to him. Sergeant Horan then said to Mr Sewell words to the effect, "You're an idiot and you're going to get yourself in trouble if you keep going on". In oral evidence, Sergeant Horan was unable to say whether this action by Mr Sewell was a clumsy attempt at a joke but noted that it was something that he would not have done. 60 In November 2006 Mr Sewell was transferred back to Coonamble and for a short time Sergeant Horan worked with him. Just before Sergeant Horan took leave, he attended a lunch at the police station which was also attended by his sister, Ms McDermott and Mr Sewell. He observed no problem between them on this occasion or while working with Mr Sewell on his return to Coonamble. When Mr Sewell came back to Coonamble, Sergeant Horan raised that issue with Superintendent Single and had a discussion with him about the matter. Sergeant Horan spoke to Mr Sewell and also spoke to other staff and he thought the situation was "fine" and told Mr Sewell's Superintendent that it was fine for him to return to Coonamble. He also spoke to Constable Dickson who had no problem with Mr Sewell returning and at that stage he had a transfer pending which ultimately did not occur until a few months later. Sergeant Horan was doing the roster at the time and thought he was able to work around any problem with Mr Sewell and Constable Dickson working together. When Mr Sewell returned, Sergeant Horan did not find any particular difficulties working with him and was not aware of a recurrence of the kind of incidents that had occurred prior to his transfer. Senior Constable Dickson 61 Senior Constable Matthew Dickson had given a statement to the police in March 2006 and said he remembered the events and the majority of the conversations that had occurred. Constable Horan had asked him about Mr Sewell returning to Coonamble and he had expressed no problem with that idea. Eight months or so had passed since the events leading to Mr Sewell's transfer and he had changed his view about Mr Sewell working in the area and also because he was contemplating a transfer of his own. There was some suggestion that Mr Sewell would work different shifts but ultimately they did work together but no problems arose although there was limited conversation. Nevertheless, they behaved professionally. 62 Early in December 2005, Ms Horan went to the police station in the afternoon to see Constable Dickson. Mr Sewell came out of the Constable's room and had gone around Constable Dickson to stand next to Ms Horan. They were talking together and during the conversation Mr Sewell put his arm on her right shoulder and at the end of the conversation, Ms Horan said she was going home and turned around and then Mr Sewell, "grabbed her on her left buttock". Mr Sewell had reached down with his hand in a grabbing motion and did not just put his hand on her buttock and it was a very short, sharp motion. He thought Ms Horan turned around very startled but could not recall if she said anything but she appeared to be very upset. Constable Dickson did not say anything but Ms Horan walked out of the station and he followed her. He could not recall if Ms Horan tried to fend off Mr Sewell. He had an independent recollection and saw her being grabbed on the behind by Mr Sewell. 63 Constable Dickson recalled New Years Eve 2005 and being at the hotel with Ms Horan. During the night, Ms Horan came to him in the beer garden looking angry and upset and told him that Mr Sewell tried to undo her blouse top. Ms Horan was wearing a blouse that did up around the back of the neck. In oral evidence, he said that Ms Horan was wearing a halter top blouse that wrapped around the neck and came down and wrapped around the body but tied off at the back of the neck. He could not recall whether Ms Horan was wearing a bra but knowing the type of top she was wearing he felt that a bra would not suit because it would be fairly obvious underneath the blouse. Ms Café 64 Ms Donna Café was employed as an administrative assistant at the Coonamble office of the Probation and Parole Service when Mr Sewell attended on 24 January 2006. Together with Acting District Manager, Isabel McDermott, Marissa Callaghan and Pamela Robinson she sat with Mr Sewell having afternoon tea. While this was occurring, Ms Cafe heard Mr Sewell telling jokes that were crude and about sexual topics. She tried not to listen to the jokes and found them to be "totally inappropriate". She had discussed Mr Sewell's inappropriate behaviour with Ms Callaghan a few days after the incident. In oral evidence, Ms Cafe could not remember the jokes that were being told or the words that were used but she thought offensive language had been used. She stayed with the group for approximately ten minutes or more and then left. Ms Robinson 65 Ms Pamela Robinson was a Sessional Supervisor with the Probation and Parole Service in Coonamble and was at that office on 24 January 2006 when Mr Sewell attended. In a statement given to police she recalled that while sitting having afternoon tea in a group, Mr Sewell spoke to all of the women and was asking questions of Ms McDermott and writing in his book and at the same time continuing a conversation with everybody in the room. He was speaking about an incident in a cell and he also spoke of masturbation. She said that she was surprised that he would speak like that in the company of the women and she immediately removed herself from the conversation and proceeded to perform other work. While Mr Sewell was talking to the women, she answered the telephone and therefore was not present during all of the time he was speaking to them. She spoke to all the women in the office after Mr Sewell left and they related to her their feelings about the content of Mr Sewell's conversation. In oral evidence, Ms Robinson agreed that, while taking the statements, Mr Sewell was telling "war stories" and jokes although she could not recall in particular what she found to be offensive. She could not remember the detail of what was said about an incident in a cell and about masturbation. When she had finished her tea she left the tea area because she had work to do rather than because anything that was being said by Mr Sewell. Ms Robinson, in the course of her duties, had telephone contact with Mr Sewell after this incident and had no concerns about future contact with Mr Sewell. She said he could have told Ms McDermott that she was so offended by what was said by Mr Sewell that she had to leave the room but she had no real recollection of saying that. The fact was that she left the room because she had other work to do. Ms Callaghan 66 Ms Marissa Callaghan had given a statement to the police and gave oral evidence in the proceedings before the Commission. She recalled being involved in a discussion in the Probation and Parole office in Coonamble in January 2006 where she was employed as an administrative assistant. The people in the office had sat down at a table to have coffee while being spoken to by Mr Sewell and they were having a general chat although Mr Sewell seemed to dominate the conversation with stories and jokes. When she joined the conversation it seemed to predominately revolve around sex or violence. She recalled Mr Sewell telling jokes about a group of men at a convent who were in the final stages of becoming priests and being exposed to a pretty, naked woman while having a bell around their "old fellars". She did not recall the exact punch line but that was the context and she thought it was inappropriate, especially as Mr Sewell did not know anything about the religious beliefs of the women. Mr Sewell had also mentioned that at some stage in his life, when dating his wife, he had been on a rugby trip and had become quite drunk on rum. On returning home to his wife and family and when he was asked if he had been hurt during the game, he had dropped his pants in front of all of them, "who knows for what reason". Ms Callaghan said that he obviously thought it was quite funny. Mr Sewell had also mentioned stories how he had assaulted someone for no reason although she could not remember how that story came about. They were talking about criminals or indigenous people and she thought he was talking about Wellington. She did not specifically remember what it was he was talking about but he appeared to be trying to impress the women. 67 When speaking to Ms Callaghan about the incident they had reported to the Police, Mr Sewell had asked her for her address and telephone number. She was quite uncomfortable with Mr Sewell at this point and asked him why he wanted those details although she did give him her address and mobile telephone number after Ms McDermott explained that he needed the details to make the statement. Ms Callaghan said that there was "a bit of a chuckle" but Mr Sewell then said he could come around and visit her when her husband was away working and mentioned coming to see her at approximately 3.00 am. Ms Callaghan said she did not give any indication that coming to her house would be alright and her interpretation from his conversation was that he wanted to come to her house for something more than just a statement. She stated that even though most of the conversation involved Mr Sewell talking, the staff could do nothing more than laugh along with him as it was uncomfortable. She supposed that she laughed as well, as a way of dealing with the conversation, but it was just nervous laughing. He was not encouraged to continue. She noticed that Ms Robinson actually left the table while the others were making eye contact and rolling their eyes in disbelief while Mr Sewell was speaking to them. She said that, over the next few days, there was much discussion about Mr Sewell's conversation and the women could not believe the comments he was making while being there on a professional basis. Ms Callaghan had previously met Mr Sewell at a Christmas function in December after he had just commenced duties at Coonamble and on that occasion she felt he had an unusual sense of humour that made her feel uncomfortable. 68 In oral evidence, Ms Callaghan stated that she had refreshed her memory from her statement given to the police and that she basically relied on that statement for her memory of the events on the day in question. She had no independent memory of the details of the conversation with the others but they had discussed the inappropriateness of Mr Sewell's conversation. The reference to the rugby trip was something said by Mr Sewell and was not something that Ms McDermott had mentioned. She could not recall anything in more detail than was in her statement. She understood the story about the rugby game as Mr Sewell being intoxicated and dropping his pants completely in front of his family. She heard this story at the time in the office and did not recall discussing it with Ms McDermott. She rejected the suggestion that Mr Sewell did not speak of assaulting someone for no reason although she could not recall the details. She had no recollection of who was being assaulted but it appeared as if Mr Sewell was trying to impress them with his authority. She had given her statement to the police approximately five weeks after the event and although the matters were fresh in her mind, her memory was beginning to fade. She agreed that he appeared to be telling "war stories" but that, in her experience, did not happen a lot in conversations with police officers. She had spoken to a police officer about the event two weeks after it occurred but could not recall precisely what she had said. She had raised specifically what had been said to her by Mr Sewell about visiting her at home and had also raised his overall behaviour. Ms Callaghan said that in the office everyone had name badges and her name bade had her full name on it. Others in the office had a first initial and a surname but she did not think that anyone had only a first name on their name badge. She was not aware whether or not Ms McDermott's badge had her full name on it. There had been a discussion with co-workers about their reaction to Mr Sewell's conversation but that was more about their reaction to it rather than the content of his conversation. The women were all very surprised and disturbed by his behaviour because of its inappropriate nature. Ms McDermott 69 Ms Isabel McDermott had given two statements to the police concerning Mr Sewell. On 29 December 2005 between 6.00 pm and 8.00 pm, she had been in the beer garden of the Commercial Hotel in Coonamble with a group of people who were predominantly off-duty police officers with their partners and friends. During the course of the evening a conversation commenced concerning perfume that had been started by Mr Sewell. There were approximately 12 people sitting at two tables. There was some general conversation about the smell of perfume and as Ms McDermott stood up and walked past Mr Sewell, he grabbed her by the upper right arm and pulled her around to face Mr Sewell. She was not initially aware of who had grabbed hold of her. Mr Sewell then said, "Perfume smells better on breasts". She pulled away and he let go. At the time she felt uncomfortable and was not sure of Mr Sewell's intention as she hardly knew him. At the time, she was wearing a singlet type top and three-quarter pants with the top being low cut. She stated that she had a large bust and was adamant that Mr Sewell's comment was directed at her. Mr Sewell had been drinking schooners of beer and he appeared to be moderately affected by alcohol. For the remainder of the night she avoided Mr Sewell because she did not want to put herself in that situation again with him. She did not appreciate the comment that he had made or the way in which he had grabbed her. Sergeant Horan, she believed, had seen the incident and approached her and asked her if she was alright. Ms McDermott said she did not want to make a big issue of the incident and left it at that, telling Sergeant Horan that she was alright. 70 In oral evidence, Ms McDermott denied saying during this conversation that she put perfume, "on my tits" and had pushed out her chest. There had been a discussion of perfume smelling differently on different people but no body parts were referred to in the conversation. She had made no reference to her "tits" but Mr Sewell had grabbed her by the arm and said, "Perfume smells better on breasts". She did not recall him saying, "You're right" and then commenting about perfume smelling better on breasts. Mr Sewell immediately let go when she pulled away. Mr Sewell was not simply catching her attention but pulled her around and put his face into her breasts. She did not laugh, she was disgusted and she did not know if anyone else laughed. In a further statement Ms McDermott, although she was offended by Mr Sewell's action in the hotel, stated that she did not wish the matter to go to court and preferred to have it dealt with internally by the police. She noted that, although he had grabbed her by the arm against her will, he had immediately let her go after she pulled away. Mr Sewell's behaviour may have been attributed to his sobriety and she remained concerned about the incident but she was more concerned about him attending her workplace and conducting himself as he had done in late January 2006. 71 On 24 January 2006, Ms McDermott was at work at the Probation and Parole Office in Coonamble and had reported an incident to the police. Mr Sewell had attended to obtain details of the matter and when he arrived they sat down to have a cup of coffee. Mr Sewell took out his notebook and commenced to ask Ms McDermott questions commencing with asking for her full name. As he asked this question he was looking at her name badge that was on the right side of her chest: he focused on the badge stating that he required the correct spelling and then kept looking at her breasts and then said, "If that one is named Isabel, what is the other?". Ms McDermott said she was dumbfounded at the comment and ignored it. She was then joined by her work colleagues, Ms Callaghan, Ms Cafe and Ms Robinson. In her oral evidence, Ms McDermott said that she did not misunderstand what Mr Sewell had said to her and she saw it as a sexual comment. 72 After being joined by her work colleagues, Mr Sewell commenced to tell sex-related jokes and Ms McDermott became quite offended and embarrassed by his behaviour. She noted that the jokes became so offensive that Ms Robinson left the room but Mr Sewell continued to tell disgusting jokes for approximately 20 minutes. 73 Ms McDermott then heard Mr Sewell speak to Ms Callaghan and after taking her name had said words to the effect that he knew where she worked and lived and that he could get her statement some other time. He went on to say words to the effect that he could come to her house anytime and Ms Callaghan said that she did not think her husband would appreciate that and that he worked with the Ambulance Service in Dubbo. Mr Sewell then said that he could come to see her when her husband was at work. Ms McDermott interpreted this conversation as being Mr Sewell making advance towards Ms Callaghan. At the time of this incident, Ms McDermott was acting District Manager. She could see that her staff were affected by the incident and told them that she would be making an official report about the matter once Sergeant Horan returned to work. She was aware that Sergeant Horan was on annual leave. 74 In her statement she expressed concern at the female staff of the Parole Service having to deal with Sergeant Sewell in the future. In oral evidence, Ms McDermott said that she had become uncomfortable when she saw Mr Sewell working at Walgett while she was there and that it was her duty roster to be there once per fortnight. She said she felt traumatised and intimated by him and asked not to be put in the position of having to be in contact with him. She denied that this was an exaggeration. Ms McDermott was cross-examined in relation to appearing bare breasted in a photograph in the Rebel bikers magazine. Ms McDermott said she had attended a fund raising event, which was a wet T-shirt event, with a number of friends and professional people to raise money for children with cancer. She was unaware at the time that the pictures would be published nor was she aware that the Rebels were regarded as an outlaw gang. The publication of the photograph had prompted an investigation by her employer. 75 After the production of certain departmental documents, Ms McDermott was recalled for further cross-examination. Ms McDermott conceded that, although in her earlier evidence she had said that the internal investigation by the Department of her participation in the biker gang day and the appearance of a photograph of her bare breasted in a biking magazine resulted in her being found not guilty of any offence, she had in fact been suspended for three months on pay while being interviewed and investigated. She accepted that documents from the Department showed that she had been found guilty of three counts of misconduct by the Assistant Commissioner for Corrective Services and had received a formal warning. She stated that was the only action that she was aware of taken against her arising from these matters. Ms McDermott also accepted that her position as acting local manager had been terminated and she had returned to her substantive position, although she did not know why that had occurred. When being interviewed by the Assistant Commissioner in relation to the disciplinary investigation, she had informed the Assistant Commissioner that she believed the informant in relation to this matter was a person against whom she had made allegations of sexual harassment and although she did not name Mr Sewell, that is the person she was to referring to in the interview. Dr Benjamin and Dr Anderson 76 There was considerable medical evidence with the Commissioner of Police calling Dr Benjamin and Mr Sewell calling Dr Anderson, both consultant psychiatrists. By agreement between the parties, the doctors were asked to respond to written questions under six specific headings and were asked to confer prior to giving evidence about their responses to those questions and to discuss the basis of any differences in their views. Their oral evidence, by agreement with the parties, was given concurrently with each counsel able to examine both doctors consecutively in relation to particular issues. 77 Both doctors agreed that Mr Sewell suffered from a psychiatric condition but they disagreed as to the nature and cause of that condition. Dr Benjamin identified two psychological problems being a personality disorder and an alcohol abuse/dependence disorder. Dr Anderson found that the applicant suffered from an adjustment disorder with anxiety and depression caused by trauma associated with being charged with a number of serious criminal offences in 1999 while a police officer. That condition continued from 1999 until the present. Mr Sewell was being treated with psychotropic medication namely, Arapax. Dr Anderson stated that Mr Sewell's behaviour was adversely affected by the degree of alcohol consumption taken while on this medication. 78 Dr Anderson expressed the view that Mr Sewell's judgement was seriously impaired when he took alcohol: the decision to drink alcohol while on psychotropic medication was a sign of impaired judgement. Dr Benjamin identified a recurring pattern in Mr Sewell's life suggesting an underlying condition stretching back to his early life: there was a history of conflict with his parents, both as a child and as an adult, a conflict in his marriages and with his children. In relation to a possible adjustment disorder, Dr Benjamin stated that this condition was a self-limiting condition caused by the presence of a stressor and resolved itself when the stressor was removed. If the stressor for Mr Sewell was the 1999 criminal charges, they resolved when he was acquitted. Dr Anderson, however, believed that the humiliation and odium associated with being charged as a serving police officer remained after the acquittal and accounted for the continuing nature of the condition. 79 Dr Anderson saw the history of symptoms as being continuous and unrelated to alcohol. Both doctors agreed that the symptoms in the main were poor stability, mood control, poor anger control, irritability and poor communication. These symptoms were continuous. Dr Anderson thought that, at the time of the service of the s 181F Notice, Mr Sewell was not coping with his duties and ultimately became unfit for duty. Dr Benjamin, however, thought that Mr Sewell was fit for duty at all relevant times. DELIBERATION 80 It is appropriate to initially deal briefly with the process of review under Pt 9, Division 1B and Division 1C of the Police Act. In view of the fact that the review process has been intermixed with a number of provisions dealing with unfair dismissals under the Industrial Relations Act 1996, in previous decisions of the Commission some attention has been paid to exactly what process is involved. In Brennan v Commission of Police [2007] NSWIRComm 229, an analysis of the process was conducted against a somewhat complex legislative background and determined that, while some residual questions might remain, it was appropriate to adopt the approach of the Full Bench in Little v The Commissioner of Police (No 2) (2002) 112 IR 212. In essence, that approach recognised that at all times the applicant bore the onus of demonstrating that the decision for removal was harsh, unreasonable or unjust. The requirement to examine the evidence to see whether the decision was harsh, unreasonable or unjust necessarily meant that, even if there was a basis in fact for the Commissioner to form a view as to the conduct of an officer, that did not necessarily mean the decision to terminate employment was not also capable of being characterised as harsh, unreasonable or unjust. Therefore, a review that only looked at the Commissioner's decision and whether it was justified did not meet the statutory requirements to consider the applicant's case: there could be justification for the Commissioner losing confidence in an officer but such a penalty as removal may be, on proper assessment, harsh or unjust in the circumstances. This approach involves a balancing exercise, requiring consideration be given to the interests of the applicant and the public interest, including the integrity of the New South Wales Police and the fact that the Commissioner had made an order for removal. In this exercise, the reasons of the Commissioner were to be considered and that itself may involve a consideration of whether there was a basis in fact for the allegations levelled against an officer. The reasons for decision can only be properly understood in the context of the s 181D(3)(a) Notice, the Executive Summary and the Officer's Response upon which the Commissioner acted. In the present proceedings, it is sufficient to state that the approach adopted by the Full Bench in Little (No 2) will be applied in dealing with this particular application. 81 As indicated above, s 181F(2) of the Police Act provides that an applicant has, at all times, the burden of establishing that the removal from the Police Force was harsh, unreasonable or unjust. In Starr v Commissioner of Police (2001) NSWIRComm 226 it was confirmed that the relevant standard to be satisfied in relation to allegations of misconduct against employees was on the balance of probabilities: the standard had to be satisfied to a degree that was appropriate to the gravity of the facts to be proved. Thus, the approach in Briginshaw v Briginshaw (1938) 60 CLR 336 applied. That approach has since been taken up in s 140 of the Evidence Act 1995 which provides that, in civil proceedings, the court must find the case of a party proved if it is satisfied that the case has been proved to the balance of probabilities and without limiting the matters that the court may take into account in deciding whether it was so satisfied, the court was to take into account: the nature of the cause or action or defence; the nature of the subject matter of the proceedings; and, the gravity of the matters alleged. The Commissioner's Reasons 82 In dealing with Mr Sewell's application, s 181F(1) of the Police Act requires the Commission to proceed by firstly considering the Commissioner's reasons for decision to remove the applicant from the Police Force: the reasons have been fully set out at paragraph [24]. Those reasons make it clear that the Commissioner was concerned that Mr Sewell had not always been frank and honest during the investigation of the allegations and had found all of the allegations (including those denied by Mr Sewell) made out on the evidence of the witnesses interviewed. The Commissioner acknowledged the fact of Mr Sewell's long service and apparently accepted his expressions of regret and his contrition and noted his undertaking to receive appropriate counselling and to no longer engage in drinking alcohol: however, primacy appeared to be given to the nature of his actions taken in relation to members of the general public and how they breached various well publicised Police Codes that bound Mr Sewell. Those matters can be acknowledged as raising serious issues of concern regarding Mr Sewell's behaviour and continued service as a police officer. 83 There are a number of aspects of the Commissioner's decision that remain unclear or uncertain. It is not clear, for example, to what extent the Commissioner took into account the circumstances resulting in Mr Sewell performing duties in Coonamble and how he had become isolated from his family on a day to day basis. In this connection, the Commissioner does not seem to have considered that the conduct occurred during a period of two months, with the evidence now before the Commission showing that prior to and following this period, Mr Sewell did not behave in a like manner and that, indeed, on his return to Coonamble after a period of approximately eight months' absence, was accepted back into the Police Force by those directly affected by his previous conduct and was also accepted by the Probation and Parole Service as constituting no likely risk of a repetition of offending behaviour when dealing with members of that Service. Those matters are of real significance and in a general sense indicate that, while exception and strong exception was taken to his behaviour over this two-month period, those directly involved have been prepared to again subject themselves to contact with Mr Sewell. They do not condone or excuse his offensive behaviour but that behaviour is apparently treated as an aberration and unlikely to arise again. These were important matters to be considered by the Commissioner in reaching his decision as were the indications that neither Ms Horan nor Ms McDermott wanted criminal proceedings brought and did not wish to give evidence in such proceedings if brought, but clearly wanted to bring these matters to the attention of the Police Service and to have Mr Sewell dealt with for his transgressions. 84 The question of appropriate penalty for these proved acts of misconduct were considered by two senior officers, Inspector Szaak and Superintendent Single. Inspector Szaak recommended that Mr Sewell be demoted to the rank of Senior Constable, be given a Commissioner's Warning Notice and placed on a Conduct Management Plan for a minimum of 12 months as well as being relocated out of the Castlereagh local area command. This penalty was to be imposed in relation to the three issues of indecent assault concerning Ms Horan. In relation to the incident involving Ms McDermott at the hotel and the issues arising at the office of the Probation and Parole Service, it was recommended that Mr Sewell be served with a Commissioner's Warning Notice, deferred from receiving pay increments for a period of 12 months and to enter into a Conduct Management Plan for a minimum of 12 months. Superintendent Single agreed with those recommendations having referred the matter to Inspector Szaak to investigate. The Superintendent was surprised that Mr Sewell had been dismissed believing his conduct was attributable more to stupidity than sexually predatory behaviour. The views of these two senior officers was of significance both as to the nature of the behaviour and as to an appropriate penalty. The Commissioner, it is readily accepted, was not bound by those recommendations but they were deserving of recognition in his reasons together with an explanation why the finding as to the nature of the misconduct was rejected (if indeed it was) and why the recommended penalty was inadequate and why the harshest penalty, that of dismissal, was appropriate. There is no indication in the Commissioner's Reasons that, in fact, these matters were considered. 85 In the Reasons for Decision, the Commissioner records and gives consideration to Mr Sewell's response and his apology for his behaviour and his promise not to repeat this unacceptable behaviour again and his regret for having conducted himself in this manner to the women involved. The Commissioner accepts that response as exhibiting contrition but then seems to have been influenced by the following matters: (a) the behaviour reflected negatively on Mr Sewell's ability to conduct himself appropriately and in accordance with New South Wales Police Code of Conduct and Ethics; (b) the Commissioner was of the opinion that his conduct and integrity had brought discredit to the Police Force; (c) although giving consideration to the personal issues raised by Mr Sewell, the Commissioner also had to have regard to the public and the community expectations of police officers; (d) Mr Sewell's conduct was not behaviour he expected of a non-commissioned officer and was behaviour that could not be sanctioned and was in breach of the Police Code; and, (e) overall, his conduct and integrity was viewed seriously by the Commissioner to the extent that he had lost confidence in Mr Sewell's suitability to remain a member of the Police Force. 86 Given that there was an acceptance of contrition exhibited by Mr Sewell and he had promised to undertake suitable counselling and had promised to stop drinking in circumstances where alcohol and his medication played a significant role in the majority of the incidents, the Commissioner does not explain why the combination of prior and recent unblemished behaviour, contrition, excessive alcohol mixed with prescribed medication and undertakings as to future conduct were rejected as being an inadequate response. There does not seem to be a rejection of the sincerity of Mr Sewell in offering these undertakings but there is no examination as to why the undertakings, and perhaps the penalties recommended by two senior officers, were not an adequate response. Every lapse of conduct and lack of integrity or breach of a Police Code does not automatically lead to circumstances where the appropriate response is removal from the Police Force. It was not a question of the behaviour being "sanctioned": but a recognition that the behaviour was at such a level of seriousness that removal was the appropriate and fair response by the Commissioner. A reading of the Commissioner's reasons does not suggest that this balancing exercise took place or to what extent, if any, it took place. The Applicant's Case 87 In a nutshell, the applicant's case is that, in a career spanning some 22 years, this behaviour was something of an aberration that occurred over a period of two months and under the pressure of isolation from his family, falling into the company of heavy drinkers and consuming large amounts of alcohol in conjunction with medication that had an adverse effect on his appreciation of the nature of his conduct. A number of observations need to be made about those matters. It is clear from all of the material that Mr Sewell was less than frank during the course of the investigation and that there had developed some inconsistencies between answers given during that investigation and evidence given in the Commission. Mr Sewell did accept that some of the alleged acts did occur but then sought to put the best possible construction on those events, for example, not untying Ms Horan's halter neck blouse but rather merely tucking in a loose bra strap. In each case, the Commission accepts the evidence of those who had complained of Mr Sewell's behaviour and is unable to accept his evidence to the contrary. These matters are dealt with in the following pages. 88 It is to be noted that not all of Mr Sewell's conduct occurred while he was under the influence of alcohol or a combination of alcohol and his medication. Certainly the incident at the offices of the Probation and Parole Service fall into this category and there was no suggestion of any state of intoxication at the police station when Mr Sewell placed his hand on and pinched Ms Horan's buttock. The best that might be said of these occasions is that they represent irrational and unacceptable behaviour that was unrestrained by usual social norms and, on the evidence, appears to be aberrant behaviour for which Mr Sewell was not known prior to this brief two months of extraordinary behaviour in Coonamble nor was it evident on his return to Coonamble after an absence of eight months and it has not arisen since. The conversation with Ms Callaghan and the suggestion that he could attend at her home in the early hours of the morning while her husband was absent, while undoubtedly causing Ms Callaghan concern and apprehension, ultimately appears to be appropriately characterised as stupid and unthinking behaviour with no clear sexual intent, bearing in mind that it was said in the presence of Mrs McDermott. It is of some importance that suggestion was not followed up by any action or any other contact with Ms Callaghan that may have suggested a more serious intention on the part of Mr Sewell. 89 The applicant's case strongly contested the allegations that Mr Sewell denied or of which he said he had no recollection. Ms McDermott's credit was heavily attacked and all inconsistencies or divergences in the evidence were closely examined to suggest unreliability in the evidence against the applicant. In this context it was noted that Ms Horan and Ms McDermott had made the complaints about Mr Sewell's behaviour and that there was a close friendship between the two women. It was also noted that senior police officers had recognised that Mr Sewell had admitted the most serious of the offences but expressed concern that he was not frank in his responses about the other issues. Superintendent Single, in particular, was surprised at the dismissal and Inspector Szaak had recommended other penalties short of dismissal. There had been a risk assessment on his return to Coonamble but no problems were raised, either within the Police Service or within the Probation and Parole Service. 90 It was further noted that, in his Reasons, the Commissioner did not find Mr Sewell to be untruthful in relation to the first incident concerning Ms Horan but he was found to be untruthful regarding the incidents at the Probation and Parole Service. Primarily, the Commissioner was concerned at Mr Sewell's behaviour in relation to the women concerned. 91 In relation to the first incident at the police station, it was pointed out that Ms Horan's evidence in the Commission proceedings had Mr Sewell placing his hand on her buttocks for a few seconds rather than pinching or squeezing her buttocks. Ms Horan did accept that she was giving evidence on the basis of her memory and it was likely that her statement, given close to the time, was more accurate. Attention was drawn to a number of differences in the accounts such as, where people were standing and which hand had been observed on Ms Horan's buttocks. In light of these differences and the differences in the evidence given in the Commission, it was submitted that the material before the Commission was inconclusive and this breach could not be found against Mr Sewell. 92 The second incident occurred on 31 December 2005 at the Coonamble Hotel. This was the incident where Mr Sewell was alleged to have undone Ms Horan's halter blouse top but it was pointed out for Mr Sewell that there was not direct independent corroboration of this incident, although there was evidence of Ms Horan being upset and angry and telling Constable Dickson of the incident. At the initial interview, Mr Sewell denied the incident but in submissions to the Commissioner he recalled the surrounding events and the fact that he was fairly intoxicated, was taking medication and that he had pushed a bra strap back into Ms Horan's blouse. Mr Sewell said that he made a comment which, in hindsight, he regarded as being inappropriate but stated that it was not a sexual comment but being "smart". In his evidence on review he repeated that account but then stated that he could not recall saying anything inappropriate but if he did, it would not have been sexual. In cross-examination, when it was put to Mr Sewell that his version meant that Ms Horan was lying, he agreed that was the case. 93 In submissions to the Commission, counsel for Mr Sewell offered what was described as an alternate and plausible explanation, namely, that Mr Sewell could be speaking of completely separate events. This was possible because Sergeant Horan was certain that the event occurred before Christmas 2005 and not at New Year. Further, the applicant stated that, when he drank and combined alcohol with his medication, at times he had no recollection of what had occurred and only became aware of what he was doing or any problem the following day. Dr Anderson had stated that Mr Sewell's judgment and behaviour was affected by the mixture of alcohol and his medication and it was likely that Mr Sewell would act in a disinhibited manner without necessarily recalling what he thought or did, and with no necessary perfect or continuous memory when he had some recollection of events. In submissions it was suggested, therefore, that Mr Sewell had recalled another event in trying to answer these allegations and had no memory of this particular event. It was asked why would he admit to the most serious of the allegations but deny the lesser allegations?: it was to be noted that he had made proper concessions during the course of his evidence. 94 In relation to the third event that occurred on 27 February 2006 at the Coonamble Hotel when Mr Sewell grabbed Ms Horan's buttocks using both hands, it was noted that he immediately confessed his actions to Constable Dickson and apologised the next day to Ms Horan and thus demonstrated his remorse. It was after this incident that Mr Sewell recognised his problem, ceased drinking alcohol and modified his off-duty behaviour. 95 The incident involving Ms McDermott at the hotel on 29 December 2006 was placed in the context of the delay in raising the issue and speaking with Sergeant Horan. It was submitted that it was likely that Sergeant Horan raised the issue concerning Ms McDermott in an attempt to help his sister and her complaint. 96 At interview, Mr Sewell did not recall the event or the discussion about perfume in the hotel and grabbing hold of Ms McDermott and putting his head down near her breasts. In his submissions to the Commissioner and evidence on review in the Commission, Mr Sewell stated that Ms McDermott said, "I put some on my tits" and poked her chest out. He then admitted that he took hold of her arm, put his head down and smelt the perfume and said, "You're right, perfume smells better on breasts". He thought that Ms McDermott and the group laughed at that point, although Sergeant Horan did not recall any laughter but remembered that Ms McDermott was embarrassed and uncomfortable and that he told Mr Sewell that he could not keep acting like this. It was noted that Ms Horan saw Mr Sewell putting his head down towards Ms McDermott's chest, but she did not remember any conversation. 97 On behalf of Mr Sewell it was submitted that it was possible that he was under the influence of medication, mixed with alcohol and misunderstood the conversation, or part of it. Mr Sewell's response was a poor attempt at humour but he misunderstood the context of the conversation so that the punch line did not fit or it misfired as a joke. It was pointed out that Ms McDermott was not necessarily always truthful. 98 On 24 January 2006 at the Probation and Parole Service office, Mr Sewell said that he had attended the office and had looked at Ms McDermott's badge and had asked for her name but denied that he had said words to the effect, "If that one's named Isabel, what's the other". Ms McDermott said her full name was on the badge but Mr Sewell denied that was so. It was submitted that there were conflicts in Ms Dermott's evidence and it became more exaggerated in oral evidence. Counsel for Mr Sewell emphasised the variations in the accounts of the witnesses in relation to these incidents and the fact that no one could recall the terms of any offensive or dirty stories told by Mr Sewell. Contrary to Ms McDermott's evidence and other evidence showing that the women did discuss the matter after the event, all these issues raised by them were said to be too vague to permit an adverse determination to be made against Mr Sewell. There was a possibility that one of the stories had been heard in the hotel while Mr Sewell was present with his wife and have been passed on by Ms McDermott, and could have been passed on in group discussions while the women were talking amongst each other. 99 In submissions, the closeness of the community in a small country town was emphasised and the fact that Mr Sewell was an outsider as contributing to the version of events raised against Mr Sewell. It was submitted that one story, about him lowering his trousers while under the influence of alcohol and in front of his future in-laws, was in fact very embarrassing to Mr Sewell. There was an analysis of Ms McDermott's evidence and her credit in relation to the way in which she had underplayed her own disciplinary problems and the events surrounding her appearing bare breasted in a biker magazine. It was also submitted that Ms McDermott might have misunderstood what Mr Sewell was saying to her when he arrived at the Probation and Parole Service and the possibility that he may have noticed only her first name on her name badge and her second name had somehow become obscured. It was suggested that, considering all of these matters, nothing could be made of the allegations arising from Mr Sewell's attendance at the Probation and Parole Service. 100 The medical evidence was then examined in submissions and three matters were raised to call into question Dr Benjamin's diagnosis. It was suggested that, on a proper analysis of the evidence, Dr Benjamin had wrongly formed the view that Mr Sewell had been not only a heavy abuser of alcohol in his late teens and early twenties but continued to drink to a significant degree thereafter. The evidence suggested that, until his transfer to Coonamble, Mr Sewell had been a light drinker and when he did drink he was not a binge drinker. Dr Benjamin also over-emphasised violent domestic behaviour, but that conduct appeared to be limited to times of acute domestic breakdown occasioned by divorce and alienation between the applicant and his stepson. Dr Benjamin's diagnosis did not take into account the fact that this type of behaviour did not arise during Mr Sewell's employment in the Police Force and that he showed no violent manifestations of a personality disorder in his duties as a police officer. His behaviour, while stationed at Coonamble between December 2005 and February 2006, was not of a "violent thug" but was that of a "bore and sometimes a groper". Lastly, it was pointed out that Dr Benjamin relied on the fact that, between 2000 and 2005, Mr Sewell was not taking psychotropic medication whereas the evidence showed that, during this period, he was taking Aropax and for a brief period changed to Edonix and then was placed back on Aropax. Another important issue was the presence of the stressor of the 1999 criminal charges that clearly had not been resolved by October 2003, well after the acquittal, when Mr Sewell consulted Dr Wong complaining of depression relating to the incident in 1999. It was also of importance to note that the diagnosis of personality disorder was unlikely because it did not manifest itself in Mr Sewell in terms of anger management and violent behaviour: other than domestic issues, there was nothing in Mr Sewell's service record to indicate such a pattern of behaviour. 101 Having conducted that analysis of Dr Benjamin's evidence and suggesting that Dr Anderson's diagnosis was likely to be more accurate, how that evidence was relied upon by Mr Sewell was then clarified. In his evidence, Mr Sewell did not advance his drinking as a reason in itself for his misconduct and in fact, took responsibility for his actions by saying that it was due more to his stupidity in drinking while on medication. Also, he took responsibility for his behaviour following the 28 February 2006 incident by ceasing to consume alcohol and taking steps to address a healthier lifestyle and reducing stress in his life. Mr Sewell's case then was that, having decided to drink, it was the mixture of his medication, his psychiatric condition and alcohol that had a magnifying effect and caused him to act in a disinhibited fashion and in a manner that was out of character and led to his misconduct on those occasions when he was intoxicated. These matters also contributed to his imperfect memory in relation to certain events that were said to have occurred while he was intoxicated. It was not part of the applicant's case that the alcohol, his psychiatric condition or the medication caused or contributed to his conduct while he was not intoxicated. Two allegations arose when the applicant was not intoxicated but they were matters in dispute and were not able to be proved to the Briginshaw standard against Mr Sewell. In relation to the last remaining matter where no alcohol was involved, the applicant's case was one of mitigation in accordance with well-established principles applied by the Commission in cases of alleged misconduct: it was submitted that, on a proper weighing of the matters, termination was too harsh a penalty to impose in all the circumstances. 102 Dr Benjamin had reached the conclusion that, at all relevant times, Mr Sewell was fit for duty but Dr Anderson considered that when the s 181D Notice was served, Mr Sewell's performance at work had begun to deteriorate and that he was beginning to manifest behaviour indicating that, at the time, he was not coping with his responsibilities. Dr Anderson ultimately reached the conclusion that Mr Sewell was unfit to perform his duties from approximately 4 November 2007. While identifying factors that would support Dr Anderson's conclusions, counsel for Mr Sewell sought that, ultimately, in these proceedings what was sought was reinstatement. If Mr Sewell was successful in that application he would like to continue his career or, if he were found to be unfit on a subsequent consideration of his condition, he would like to receive a medical discharge. That was a matter to be dealt with after a reinstatement order was made by the Commission. The significance of Dr Anderson's conclusions were that, at the time Mr Sewell was dismissed, he was not coping with work and at that stage may not have been fit for duty and that the dismissal of the applicant in those circumstances was unfair and the Commissioner should have offered him medical retirement as an alternative. 103 A further factor identified by counsel for Mr Sewell was that there had been a significant unexplained delay between the time of the initial investigation and the issuing of the s 181D Notice, a period of some 16 months. During this period, Mr Sewell had demonstrated that his inappropriate conduct was an aberration and had rendered good service to the Police Force both when relocated to Walgett and later when transferred back to Coonamble. That service could continue to be rendered without a recurrence of the incidents of which complaint had been made during the period of two months between December 2005 and February 2006. The Commissioner had clearly given insufficient weight before termination to the applicant's good service prior to the period of complaint, or in 16 months following the complaints. There was no indication that Mr Sewell's psychiatric illness had been taken into account in mitigation or the fact that he had continued when he had been promoted into a difficult command and transported to a new location, without the support of his family and without an appropriate routine. The combination of prescribed medication and the consumption of alcohol by Mr Sewell had exacerbated the effect of his medical condition and significantly contributed to his aberrant behaviour, particularly when he was intoxicated. Credit had to be given to Mr Sewell for the fact that he had made a full admission in relation to the most serious allegations, and it could not be reasonably concluded that he was motivated by a desire to minimise his misconduct or exculpate himself in relation to the disputes he raised about the other allegations. 104 There are a number of difficulties with these submissions made on behalf of Mr Sewell. Dealing generally with the idea that here was a tight knit local group who simply treated Mr Sewell as an outsider and had banded together to support Ms Horan, there is no evidence to support such a conclusion. Indeed, the evidence suggests that Mr Sewell was able to slip easily into the social world of his fellow officers, having had the advantage of a previous association with Ms Horan. Accepting that there was a friendship between Ms Horan and Ms McDermott, that alone does not support a finding of an exaggeration of the evidence, nor does it explain what appeared to be the genuine distaste of the other female officers from the Probation and Parole Service when they were required to recount Mr Sewell's behaviour and his unseemly stories. Although the women were unable to recount the detail of the distasteful stories, they were as one in expressing their concern at Mr Sewell's behaviour. Nothing sinister can be found in the fact that the women discussed Mr Sewell's behaviour after the event and rather than suggesting that they were fabricating an account, it is entirely consistent with their version of events and how astonished they were at his behaviour. Similarly, there is nothing of substance in the attack on Ms McDermott's credit. While it might be accepted that she understated the findings in her disciplinary proceedings, she had openly answered questions about that matter and the result being a reprimand and undoubtedly, in that context, Ms McDermott regarded the process as having been largely resolved in her favour. Importantly, there is nothing about this aspect of her evidence that leads to a reasonable apprehension that other aspects of her evidence were not to be believed. 105 The minor inconsistencies found in the various versions of the incident that occurred at the police station on 27 December 2005 do not assist the applicant. The major variation is Ms Horan's oral evidence on review that Mr Sewell placed his hand on her buttock for a few seconds, whereas in her initial complaint she had alleged that he had squeezed or pinched her buttocks. Ultimately, she accepted that the statement she had made closer to the event was likely to be more accurate as she was giving her evidence now from memory and a good while after the event. Importantly, the squeeze or pinch was observed by Constable Dickson and again, while there are some variations in his account, that evidence is to be preferred to the applicant's evidence where he could not even recall the event. 106 The allegation about untying Ms Horan's halter neck blouse in the Coonamble Hotel on 31 December 2005 was one initially denied by Mr Sewell but in his submission to the Commissioner, he recalled the surrounding circumstances. Counsel's submission that he could be recalling a completely separate event has no basis in the evidence and was never canvassed with Ms Horan. The idea that, during this brief period, Mr Sewell was twice standing behind Ms Horan in the hotel and on one occasion, simply tucked a bra strap back into her blouse and on another occasion undid the blouse strap, might just be events that would be recalled by Ms Horan. There is no evidence, either from Mr Sewell, Ms Horan or from anybody else, that this so-called plausible explanation could be based upon and the Commission is unable to accept that as a possibility. 107 The incident involving Ms McDermott and the discussion about perfume at the Coonamble Hotel on 29 December 2006 appears ultimately to be a suggestion that, firstly, Ms McDermott was acting provocatively by referring to her "tits" and pushing her chest out while talking about the subject of perfume. There is no other evidence that supports this account although, overall, there is very little evidence of detail about the incident. It is clear that Sergeant Horan re-acted adversely to what had occurred and both he and Ms Horan saw Mr Sewell grab Ms McDermott and put his head close to her breasts. Sergeant Horan heard a comment about the perfume smelling better on breasts. No one supports the idea that the group laughed at this action and the evidence is to the contrary. It is then suggested on behalf of Mr Sewell that, because of his state of intoxication and the mixture of alcohol and medication, Mr Sewell simply misunderstood the nature of the conversation and attempted to be humorous and that the joke fell flat. Again, there is no evidence to support this version of events and it cannot be accepted as mitigating in any way Mr Sewell's actions. 108 The incident concerning Ms McDermott's name badge when Mr Sewell visited the Probation and Parole Service in late January 2006 was denied by Mr Sewell, but counsel on his behalf suggested that the name badge might have been obscured in some way. This suggestion was never put by Mr Sewell and is not mentioned by anybody else, including Ms McDermott. There is simply no basis in the evidence for such a finding and there is no reason to disbelieve Ms McDermott in relation to this incident. Similarly, there is no basis on which to find that Ms McDermott misunderstood anything that Mr Sewell said to her on this occasion. 109 Having observed all the witnesses to these incidents, the Commission is in no doubt that the evidence established that each of these alleged episodes of bad conduct by Mr Sewell have been established. Commissioner's Case in Answer 110 In reply to the applicant's case, the Commissioner submitted that the evidence demonstrated that there was no undue delay in dealing with Mr Sewell and that the usual procedures and protocols had been followed. The facts as considered by the Commissioner had been clearly set out and it was again noted that alcohol, while present in a number of the incidents, was not present on two occasions. It was accepted that the behaviour that brought Mr Sewell to attention occurred during the relatively short period between late December 2005 and February 2006 and it was also accepted that there was no issue regarding Mr Sewell's performance or his behaviour after that date. 111 The submission in reply generally supported the evidence against Mr Sewell as considered by the Commissioner and then made some further specific comments in relation to particular incidents. In relation to the 27 December 2005 incident at the police station, both Ms Horan and Constable Dickson had stated that Mr Sewell squeezed her left buttock. The applicant had firstly denied that the event took place at all and then said nothing came to mind about Ms Horan's visit to the police station and that he had no specific recollection of the event, but finally accepted that it may have happened because both Ms Horan and Constable Dickson had said it had occurred. There was no reason for rejecting the evidence of Ms Horan and Constable Dickson and this was an example of Mr Sewell being untruthful, both in his answers to the Commissioner and in his evidence on review in the Commission. 112 The perfume-smelling incident at the Coonamble Hotel on 29 December 2006, was another example of the applicant at first not being able to remember the incident and then in submissions to the Commissioner, being able to give some details at odds with the version put forward by Ms McDermott. Ms McDermott denied Mr Sewell's version of the events and Sergeant Horan and Ms Horan gave evidence which, in substance, corroborated Ms McDermott's approach. That evidence noted how upset Ms McDermott was after the incident and that was inconsistent with Mr Sewell's version and his line that it was a joke in response to which everybody laughed. Mr Sewell's version came about after initially denying the incident and then reflecting on the material against him: his evidence was unconvincing and the evidence against him was to be preferred. 113 The blouse incident that occurred on 31 December 2005 at the Coonamble Hotel was also at first denied by Mr Sewell but by the time he made his submission to the Commissioner, he recalled seeing a bra strap outside her blouse and pushing it back under the blouse. The two different accounts were attempted to be explained by Mr Sewell saying that he had time to reflect on the incident that happened and he had written his statement and his submission to the Commissioner from his memory of the incident and what had occurred at the time. Mr Sewell's evidence was not believable in light of the evidence of Ms Horan and Constable Dickson that, on the night, she was wearing a strapless bra beneath her halter-top. 114 The first incident on 24 January 2006 concerned Ms McDermott's name badge. Ms McDermott's evidence was that she was dumbfounded by Mr Sewell's comment and offended by it. She would not accept that she had misunderstood Mr Sewell's comment - he was clearly talking about her breast. Mr Sewell again denied the allegation and said that Ms McDermott was wearing a name badge with only her first name on it and he needed her full name for the purpose of taking a statement. This explanation only emerged later in submissions. Ms Callaghan's evidence was that Probation and Parole staff wore name badges with some having full names and others having a first initial and a surname on the badge. That evidence was inconsistent with Mr Sewell's account that Ms McDermott's badge only had her first name on it. There was no reason to reject Ms Callaghan's account of the way badges were worn in the office and Mr Sewell's version should be rejected. 115 In relation to the inappropriate jokes and discussion that was then undertaken by Mr Sewell in the presence of the four women working at the Probation and Parole office, it was pointed out that each was closely cross-examined but their evidence remained unshaken. While it was accepted that Ms Café and Ms Robinson did not now appear to have a detailed recollection of the specific details of what was said by Mr Sewell independent of their statements, nevertheless, it was their evidence that the statements were true and correct to the best of their knowledge and belief. Their statements were given at a time when their recollection was likely to be clearer and those statements showed confidence about the substance of what was said by Mr Sewell during the afternoon. The cross-examination of Ms McDermott and Ms Callaghan showed a recall of a matter that was independent of their statements. The evidence of the witnesses was that they did not discuss what had occurred until after they had provided statements to the police. Ms Robinson was surprised by what Mr Sewell said and found his statements to be offensive, while Ms Café found the applicant's statements to be totally inappropriate. Ms Callaghan said the applicant's statements were totally inappropriate and she felt uncomfortable about how he spoke while Ms McDermott was quite offended by what was said and found the comments totally inappropriate. Again, at interview, Mr Sewell could not recall anything of this nature occurring. He also suggested that the rugby injury story was one that Ms McDermott had heard prior to the event when he told the story in the hotel. Again, the evidence of Mr Sewell was unreliable and unbelievable and the substance of the evidence of the women involved was to be preferred. 116 Mr Sewell accepted the inappropriateness of the comments he made to Ms Callaghan but denied that he had any untoward intention and that he had simply made a "smart arse" comment that had been taken the wrong way. Here, there was no suggestion that alcohol played a role and given Mr Sewell's age and experience, his comment could not be excused as merely a joke in poor taste: his conduct amounted to a serious error of judgement. 117 Counsel for the Commissioner examined in some detail the medical evidence that was called on review but had not been placed before the Commissioner. Although both Dr Anderson and Dr Benjamin stated that their diagnosis was placed within the same framework (being the American DSM system and also within the World Health Organisation's system for international classification of diseases), it was submitted that Dr Benjamin's diagnosis was closer to that framework and was to be preferred. While Dr Anderson said that Mr Sewell's behaviour was affected by his use of alcohol while taking medication, no explanation was proffered to explain the incidents where alcohol was not a factor. While Dr Anderson believed that Mr Sewell's judgement was seriously impaired when he took alcohol and that the decision to drink alcohol while on psychotropic medication was a sign of impaired judgement, there was no explanation given by Dr Anderson as to how the illness he identified was causative of the applicant's decision to mix alcohol and medication, nor was there an explanation of how the illness explained the incidents that occurred where alcohol was not present. It was suggested that there was no medical explanation for Mr Sewell's behaviour. It was to be noted that Mr Sewell's evidence at interview was that taking the medication calmed him but mixing it with alcohol made him "hyperactive" but that did not provide a medical explanation for his behaviour. 118 Mr Sewell, himself, had stated that he had thought it was not so much the medication but his own lack of self control that had led to the incidents. In addition, there was nothing identified in any of Mr Sewell's responses, including his evidence in the Commission, identifying any difficulties associated with living and working in Coonamble as causing his behaviour and the conduct that brought him under notice. Dr Anderson believed that the psychiatric condition was aggravated by Mr Sewell living away from home and having a promotion but it was submitted that there was no persuasive evidence to support that view. Dr Anderson identified the use of alcohol with the medication as being the cause of the applicant's impairment but there was no linkage between the illness and the behaviour - there was simply no medical basis for Mr Sewell's bad judgement and bad conduct. Finally, it was submitted that on the evidence before the Commission there was no explanation how Mr Sewell's behaviour may have been caused by his illness. It would only be necessary to resolve the difference in medical opinion if it was found that Mr Sewell was ill and that illness was substantially caused by his employment and the illness explained his actions or misconduct. The evidence did not establish those matters. 119 Counsel for the Commissioner then considered the evidence as to Mr Sewell's consumption of alcohol together with medication in light of the submissions that the mixture of alcohol and medication had clouded his judgement and caused him to behave inappropriately. That was not his initial approach when interviewed when he stated that it was more a question of his own stupidity rather than the mixing of alcohol and anti-depressants. That position was altered in his evidence before the Commission but he denied that he had changed his position in this regard. On each day that an incident had occurred that were the subject of the allegations, Mr Sewell's evidence was that he had taken Arapax and on three of those days alcohol was also present. In relation to the 29 December 2005 incident, he said he had been drinking heavily and was intoxicated but at interview he said he had no recollection of the day and had no recollection of being at the Coonamble Hotel. On 31 December 2005, Mr Sewell said that he was feeling fairly intoxicated and in cross-examination he rejected the idea that he was drinking only light beer and asserted that he was drinking full strength beer and he was absolutely sure about that matter. In his record of interview, he told Inspector Szaak that he consumed only three or four middies of light beer and ultimately he accepted that the account appearing in the record of interview was correct. In relation to the 27 February 2006 incident, Mr Sewell gave some detail of his heavy drinking. 120 An issue then arose as to whether Mr Sewell's recollection of events could be affected by his consumption of alcohol mixed with his medication such that his imperfect memory was in fact caused by excessive alcohol consumption or caused by his medical condition and/or other personal factors. Again, there was some difference in the medical evidence. Dr Benjamin said that, while the combination of alcohol and medication may have played some role in affecting Mr Sewell's memory, most of his patients taking anti-depressants and alcohol did not have that experience. For Mr Sewell's memory to be affected it was likely that the consumption of alcohol was greater than appeared in the evidence. Dr Anderson said that taking Arapax or other psychiatric medication in combination with alcohol made the effects of alcohol more toxic more quickly but he agreed with Dr Benjamin that, while some patients who combined alcohol and Arapax suffered memory loss, most did not. There was no real explanation in the medical evidence for loss of memory on the days when there was no alcohol consumption unless there was chronic alcohol dependence causing memory damage but that was not the state of the evidence regarding Mr Sewell. Dr Benjamin did form the view that Mr Sewell was alcohol dependant. In light of the state of the evidence it was submitted for the Commissioner that, while it was possible that Mr Sewell's memory was affected when he took alcohol in combination with his medication, that did not explain why he had no recollection of certain events and then subsequently seemed to have a recollection. It would seem that there needed to be much more alcohol consumption for Mr Sewell's memory to be affected. Ultimately, Mr Sewell's evidence was unreliable and it was open to find that he was also untruthful in relation to these matters. 121 The attack on the credit of Ms McDermott should be rejected. Counsel for the Commissioner noted that the crucial details concerning the disciplinary investigation had been freely given by Ms McDermott and volunteered in her evidence-in-chief. If there were inaccuracies in her evidence, they were more than adequately explained by the fact that Ms McDermott gave evidence of these matters not as a lawyer but as a lay person and had, more importantly, given her evidence about the incidents involving Mr Sewell in a frank manner. In particular her evidence regarding the events of 29 December 2005 were supported by other witnesses and her evidence about the name badge was supported by the evidence of Ms Callaghan as to the usual way in which full names or initials and surname were placed on the name badge. There was nothing in relation to Ms McDermott's evidence regarding her disciplinary proceedings that would call into question her evidence in the present proceedings. 122 A number of other matters were raised in submissions for the Commissioner. In this case there had been a breach of the policy on harassment and that was a significant matter. Mr Sewell's lack of candour was also an important element in assessing the seriousness of his conduct. It was submitted that, in relation to his memory loss, once Mr Sewell became aware that mixing alcohol with his medication left him with no recollection of what took place the previous night, the question had to be asked why he continued to drink large quantities of alcohol while continuing with his medication. In this context, it was also important to note that the medical evidence did not establish that he had no control or was unable to exercise any responsibility for his actions. If, however, after reviewing all the material the Commission found some unfairness it would not be appropriate to reinstate Mr Sewell to full police duties. If this position was reached, a more limited order should be made such as made in Kavanagh v NSW Police [2003[ NSWIRComm 474 and Allchin v New South Wales Police [2007] NSWIRComm 76, whereby reinstatement was ordered only to allow access to superannuation entitlements or to permit an application to be lodged for medical retirement. 123 The Commissioner's analysis of each incident has considerable force, as previously observed. The extent of Mr Sewell's lack of memory of events is difficult to establish, especially since he adopted the course of treating events as occurring (although having no memory of them) and then attempting to construct a response. The analysis of the medical evidence, however, did not fully address the more limited use of that evidence now proposed by Mr Sewell. There was no doubt that, when Mr Sewell mixed alcohol and his medication, his behaviour dramatically changed. He had a legitimate reason for taking the medication. This did not explain the two events where alcohol was not present. The Commissioner's case in reply, while accepting that his behaviour occurred over a period of two months in a career spanning 22 years, gives no weight to the fact that this was aberrant behaviour not exhibited before or after these incidents. There is no suggestion that this behaviour was likely to arise again on a weighing of these factors. Balancing the Considerations on Review 124 Having considered the Commissioner's reasons for decision to remove Mr Sewell from the New South Wales Police, the case presented by Mr Sewell why the removal was harsh, unreasonable and unjust and the case presented by the Commissioner in answer to Mr Sewell's case, it is appropriate to confirm that the evidence establishes each of the incidents relied upon by the Commissioner: in those cases where Mr Sewell has denied the allegation, the evidence does not support Mr Sewell's case. In particular, the name badge incident involving Ms McDermott, although not witnessed by any other person, was significantly corroborated in an important aspect by Ms Callaghan. In relation to Mr Sewell's suggestion to Ms Callaghan that he would call on her at 3.00 am when her husband was not present, although the remark offended Ms Callaghan, importantly it was not followed up in any way to suggest that Mr Sewell was making an overtly sexual approach - there is force in the applicant's submission that this was more an ill-considered and "smart arse" comment but nevertheless, it was a totally inappropriate comment to be made to a female member of the public whilst in the performance of police duties. A number of the plausible explanations proffered in submissions on behalf of Mr Sewell were simply not supportable on the facts and mostly, in terms, were not put to vital witnesses. 125 It is then necessary to consider the medical evidence, particularly as this material was not placed before the Commissioner and was not able to be considered by him in determining to remove Mr Sewell from the Police Service. There were significant divergences in the medical evidence. From the material presented, the Commission is unable to determine whether or not Mr Sewell was fit for duty at or around the time of the incidents between December 2005 and February 2006. In those circumstances, the practical course seems to be that suggested on behalf of Mr Sewell, namely, if he is successful in his application to be reinstated to the Police Service, his present fitness for duty (and if relevant, his fitness for duty during the two month period at Coonamble) may be assessed by the appropriate bodies. Otherwise, the Commission accepts the submission made on behalf of the Commissioner that the medical evidence does not establish that Mr Sewell was suffering from a condition whereby he was not able to control or was not responsible for his actions or that there was some medical reason for his conduct and behaviour. In essence, this submission appears to have been accepted on behalf of Mr Sewell when the submission was made that, having made the decision to drink, it was his psychiatric condition and medication that had a magnifying effect and caused him to act in a disinhibited fashion and in an out of character manner, leading ultimately to his misconduct while he was intoxicated. The effect of the mixture of medication and alcohol, especially the intake of excessive amounts of alcohol, may be accepted as leading Mr Sewell to become disinhibited in his actions but there was no identified medical reason for him taking this action - it is an action he took and continued with even when it became apparent to him that he had periods of blackout and could not recall what had occurred the previous night. Importantly, it is only over this brief two month period that Mr Sewell mixed alcohol and his medication despite taking the medication for a number of years. 126 Having chosen to drink excessively while on his medication, the question arises as to whether this mixture could have led to Mr Sewell having blackouts or memory loss resulting in him being unaware of the details of his behaviour during these periods. It may well be that Mr Sewell has not accurately accounted for the amount of alcohol he was consuming during this period, and it was conceded in the Commissioner's submissions that it was possible that his memory was affected in these circumstances. One particular circumstance comes to mind where Mr Sewell placed himself and Sergeant Horan at a different place in the hotel when the perfume incident occurred involving Ms McDermott. There seems to be no particular reason why Mr Sewell would say that he was sitting in a different part of the hotel at a time when he had proffered a version of events, having initially been unable to remember the incident at all. Another example is where he apologises for inappropriate statements, although unable to recall what he said when there was no allegation of such statements being made. 127 The medical evidence is that, while such blackouts are not usual, they can occur. On balance, the Commission accepts Mr Sewell's evidence about this matter but that immediately raises the question of why he continued to mix medication and alcohol when they had this disturbing result. It seems that Mr Sewell only came to his senses in late February 2006 after his attack on Ms Horan which he immediately confessed to Constable Dickson and obviously remembered because he attended at Ms Horan's place of work the following day to apologise. It does appear that this event finally jolted him into an acceptance that his drinking, mixed with his medication, had to stop and he had to seek other measures to reduce his stress as well as to search for other lifestyle measures to address his state of health. Accepting that there were occasions when he did lose his memory does not assist Mr Sewell in relation the first incident at the police station where he squeezed or pinched Ms Horan's buttocks, nor does it explain his extraordinary behaviour at the Probation and Parole Service office. It follows, therefore, that there were occasions when Mr Sewell was less than frank in his responses. Acceptance of his position that there were occasions when he did suffer blackouts and had a less than full recollection of events means that, when he was intoxicated and on medication, his denial of certain allegations whilst in that state are without weight. 128 The Commissioner was, therefore, entitled to proceed on the basis that the allegations against Mr Sewell were made out. In relation to each allegation, there was a basis in fact for the Commissioner's conclusion. The Commissioner then had regard to the policy on sexual harassment and ethics and determined Mr Sewell's actions could not be condoned. The Full Bench in Little (No 2) pointed out that a review in this Commission is not completed simply because the Commissioner for Police had a sound basis for taking action against an officer and a number of matters needed to be considered in judging whether dismissal was appropriate or unfair in all the circumstances. In this balancing exercise, the Police Act, by s 181F (3) requires the Commission to have regard to the interests of the applicant and also have regard to the public interests, including the interests of maintaining the integrity of the New South Wales Police and the fact that the Commissioner for Police had made an order under s 181D(1). 129 There can be no issue that it is in the public interest to maintain the integrity of the New South Wales Police Service. Actions taken by police officers on or off duty may be of such seriousness that it compromises the integrity of the Police Service and demands the highest penalty, dismissal. The Commissioner, having regard to the nature of the allegations and the breaches of police policy, determined that the penalty of dismissal was appropriate and that he could not condone Mr Sewell's actions. These are significant matters and weigh heavily with the Commission on review. The Commission on review is also to have regard to the interests of the applicant. Mr Sewell has spent more than 20 years in the police force, has obtained a number of qualifications and has built a long-term career with the Service. Since his termination, he has been working at an abattoir on an hourly rate and also performing some part-time work in a butcher's shop. In his statement to the Commission he set out his financial situation and that disclosed that, including his wife's earnings, their outgoings were $300 per week in excess of their income. This has been the position since Mr Sewell was removed from the Service on 27 July 2007. Mr Sewell is therefore enduring continuing financial difficulties as a result of his termination, quite separate and apart from the loss of a stable income and the other emoluments flowing from being a police officer. 130 While the financial consequences of termination are a relevant consideration, it is invariably the fact that termination of employment brings about such consequences. The major focus of this review, therefore, must be whether or not the termination in all the circumstances, and having regard to the public interest, is unfair. In addressing this issue it is important that the Commissioner was not presented with the detailed evidence now before this Commission regarding Mr Sewell's psychiatric condition, and that this extraordinary behaviour largely took place while Mr Sewell was drinking to excess while taking medication. The importance of these matters, as earlier addressed, is not that it provides a medical reason for him losing control or responsibility for his behaviour but that it is an important factor when judging what was the aberrant behaviour of Mr Sewell. In his 22 years' service he had not exhibited such uninhibited and offensive conduct before going to Coonamble and did not again exhibit this type of conduct in the following 16 months. In his long period of service there is this period of approximately two months in which he acts in a way that is totally out of character. The evidence strongly suggests that he is unlikely to conduct himself in this way in the future. Although his behaviour was carried out over a period of approximately two months and Mr Sewell had warning that his drinking while taking medication was having adverse effects on his behaviour, when he attacked Ms Horan in the hotel in February 2006 he appears to have come to his sense and immediately apologised to Constable Dickson and on the following day, apologised to Ms Horan. He then addressed his lifestyle and stopped drinking and undertook a regime of healthy exercise and other diversions to address his stress levels. The Commissioner accepted that Mr Sewell was contrite and that appears to be so. 131 Ultimately, in what is a difficult balancing exercise, the Commission determines that there is a brief period in a long police career that represents such aberrant behaviour that, on the evidence, it is unlikely to be repeated and that it was harsh and unfair to remove Mr Sewell from the Police Service. All these matters strongly suggest that, in the context of such a long career, Mr Sewell should be given a second chance. In reaching this conclusion, it is not to be suggested that his actions over this brief period were not serious nor could they be ignored as inconsequential or trivial. The Codes of Police conduct, however, should not be treated as a monolith but should be viewed as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review. In considering the matters referred to above, it is concluded that Mr Sewell has made out a case to be reinstated in the Police Force. 132 Having determined that Mr Sewell's removal was harsh and unfair and that he should be reinstated to the Police Service, it is appropriate to deal with consequential issues. In view of the nature of the conduct that led to Mr Sewell's removal from the Police Service, he should be reinstated without pay for the period that he has been outside the Service and he should not receive any recognition for continuity of service during this period. The Commissioner should feel free to require Mr Sewell to attend any counselling or training course thought appropriate and should place him in any area command thought appropriate. While it will not be a condition of reinstatement, either the Commissioner or Mr Sewell may take such steps as are seen to be appropriate to have his fitness for continued service considered. The Order for reinstatement should take effect within seven days of this Decision. 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.