Industrial Relations Commission New South Wales Medium Neutral Citation: McDonald v Commissioner of Police [2011] NSWIRComm 24 Hearing dates: 18 October 2010; 26 November 2010 Decision date: 22 March 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: 1. Applicant reinstated 2. Parties to draft appropriate orders reflecting terms of decision 3. Listed for making of Orders and hearing of any necessary argument on 30 March 2011 at 9.45 am Catchwords: POLICE ACT 1990 - Removal of officer for lack of Commissioner's confidence - s 181E review - conduct and integrity called into question - high range PCA and driving offence resulting in property damage - drinking off-duty - abuse and mistreatment of police officers attending scene of accident - attempt to have police ignore accident and PCA -recent warning involving drunken off-duty behaviour - officer attends party and consumes alcohol poured by others - passes out and wakes to find his body covered in obscene images and words - officer accepts responsibility for conduct - conduct result of high level of inebriation - not usual conduct - counselling received over extended period - psychiatric evidence that officer has overcome reliance on alcohol and capable of resuming duties - competing considerations in evaluating harshness of dismissal - level of alcohol consumption not an excuse but an explanation for behaviour not normally exhibited - support of serving officers - apart from two recent issues involving drunken behaviour good work record - conduct unacceptable but dismissal harsh - reinstatement ordered with conditions. Legislation Cited: Police Act 1990, s 181D(3)(a) s 173 The Road Transport (Safety and Traffic Management) Act 1999 Cases Cited: Burrows and anor v Commissioner for Police [2001] NSWIRComm 333 Commissioner of Police v Collins [2008] 180 IR 191 at [53]) Commissioner of Police v Dobie (2006) 157 IR 44 Commissioner of Police v Industrial Relations Commission (2009) 185 IR 458 at [77] Commissioner of Police v Sewell (2008) 180 IR 91 Flanagan v Commissioner of Police (2008) 180 IR 85 Formston v Police [2006] NSWIRComm 88 Lawrance v Commissioner of Police [2010] NSWIRComm 149 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231 at 233 Oswald v NSW Police Service (1999) 90 IR 42 at 67-68 Wells v Commissioner of Police (2000) 100 IR 106 Texts Cited: Diagnostic And Statistical Manual of Mental Disorders, Fourth Edition published by the American Psychiatric Association Category: Principal judgment Parties: Adam McDonald (Applicant) Commissioner of Police (Respondent) Representation: Mr B Docking of counsel (Applicant) Ms R Raper of counsel (Respondent) Lough Wells Duncan Lawyers (Applicant) Henry Davis York (Respondent) File Number(s): IRC 2013 of 2009 Judgment 1In early December 2009 the Commissioner of Police advised Senior Constable Adam McDonald that, having considered his conduct and integrity, the Commissioner no longer had confidence in his suitability to continue as a police officer and the Senior Constable was thereby removed from the Police Service, thus ending a six-year career. Pursuant to the provisions of s 181E of the Police Act 1990, Mr McDonald has applied to the Commission for a review of the Commissioner's order of removal claiming that his removal was, in all the circumstances, harsh, unreasonable and unjust. 2As has become somewhat commonplace in exercising this area of the Commission's jurisdiction under the Police Act , Mr McDonald came under consideration by the Commissioner of Police because of alcohol related conduct. The primary incident that brought Mr McDonald to attention occurred at approximately 11.30 pm on 25 January 2009 when the car Mr McDonald was driving was involved in an accident with a parked vehicle and both vehicles were significantly damaged. At the time of the accident Mr McDonald was considerably under the influence of alcohol. He had been present that day at the Kiama Golf Club from approximately 1.30 pm and after participating in a poker competition, he attended a private residence later that afternoon. At both the Golf Club and the private residence, Mr McDonald consumed an unknown amount of alcohol. Police attended this incident and Mr McDonald was charged with driving with a high range prescribed concentration of alcohol in his system. In mid-March 2009 he pleaded guilty to that charge in the Local Court and a conviction was recorded. Mr McDonald was disqualified from driving for 18 months and fined $2,000. Mr McDonald successfully appealed the severity of the sentence with the fine being reduced from $2,000 to $700. 3As required by the provisions of s 181D(3)(a) of the Police Act, Mr McDonald was served with a Notice that, taking into account his conduct and integrity, the Commissioner was considering his suitability to continue in the Police Force. That document set out three allegations and Mr McDonald was given 21 days to respond to the matters raised in the Notice. 4The Commissioner's Notice referred to the fact that Mr McDonald had said he had been playing poker at the Kiama Golf Club from approximately 1.30 pm on 25 January 2009 and had consumed approximately four schooners of beer before proceeding to a private residence occupied by one of the persons involved in the poker game. Mr McDonald said he had about five small glasses of bourbon and coke before his memory became hazy and he woke up feeling extremely intoxicated. He found writing and drawings on his skin and realised that there were people laughing at him and making remarks. Mr McDonald went to the bathroom and saw drawings on his face and decided he had to leave the premises. He said he had no further recollection of the events of the night but he was not taking any medication and did not suffer from any medical impairment that may have caused the haziness other than working for the previous four days in high temperatures. 5Mr McDonald then attempted to drive home via Meehan Drive, Kiama Downs. At approximately 11.30 pm a Mr Bruce Tapp heard a loud bang outside the house in which he was staying. He had parked his car outside in the street. On leaving the house he observed that his car had been extensively damaged on the driver's side and the front bumper bar had been ripped off, exposing the engine casing. It appeared to the Commissioner that the damage was caused by Mr McDonald's vehicle colliding with Mr Tapp's vehicle and then running off the road and striking a fence. Mr McDonald told Mr Tapp that he was sorry and would pay for the damage, that he lived around the corner and that he had just been to the Golf Club. Mr Tapp noted that Mr McDonald's speech was slurred and he appeared to be affected by alcohol. Mr Tapp then called the police and while waiting, Mr McDonald informed Mr Tapp that he was a police officer. 6Three police officers then attended the scene, Senior Constable Natalie Drane, Constable Daniel Houwelling and Constable Jim Giamperio Guiri. Mr McDonald was observed by two of the officers as having drawings of "penises" on the left side of his face and on his left leg, apparently drawn with a black marker. All attending police stated that he smelt strongly of alcohol and was unsteady on his feet and noted that his zipper was undone. Mr McDonald informed two of the officers that he was a serving police officer but he laughed at them when they asked for his registration documents although the documents were ultimately provided. Mr McDonald told two officers that he had his driver's licence and tried to find it in his vehicle but could not find it. One of the officers then searched the vehicle and found a wallet on the floor containing Mr McDonald's driver's licence. 7The remaining exchanges between the police officers at the scene and later at the Kiama Police station formed a significant part of the allegations against Mr McDonald. Senior Constable Drane said Mr McDonald asked her to "P5" the accident and that he would walk home. As will become clearer later in this judgment, a "P5" approach treats the incident as a minor accident. When Constable Drane told Mr McDonald that the accident could not fall within the criteria of "P5", Mr McDonald then responded: "This is fucked, I can't believe you are doing this." 8Constable Houwelling prepared the alcometer and told Mr McDonald to blow a single breath into the tube but says that Mr McDonald twice blew a small amount of air into the tube before allowing it to fall out of his mouth. After being told he had one more chance to provide a proper sample otherwise he would be taken back to the station, Mr McDonald then provided a proper sample. The breath test registered a positive result and Constable Drane said that when informed that he was under arrest for the purpose of a breath analysis and would be taken to Warilla Police station, Mr McDonald then said "[D]o I have to, are you kidding?" 9Constable Guiri said that Mr McDonald continuously swore and made remarks saying, "I fucked up mate, I should have run away when I could have and then let you deal with it. Fuck this job, I don't give a fuck anyway. I have been on the job for six years." Senior Constable Drane said that Mr McDonald was angry and swearing to himself. He asked Constable Drane if she could drop him at home saying that he had been "in the job for six years and this was the way [he was] being treated." 10Mr McDonald was taken to Kiama Police station. Senior Constable Drane said that Mr McDonald was angry and swearing at the police and kept repeating that six years in the job had got him nowhere. At the Police station, Senior Constable Winston observed two large pictures of penises on Mr McDonald's leg and stated that Mr McDonald was swearing, saying that the job was "fucked" and that he had not been looked after. When Mr McDonald was told he was required to provide a breath sample he asked whether the Constable was "really going to do this?" When the Senior Constable asked him again to provide a breath sample, Mr McDonald said to Constable Winston, "Can't you do it?". The Constable told Mr McDonald that he would be committing another offence if he did not provide a breath sample and eventually Mr McDonald did provide the sample. The sample resulted in a reading of 0.205 grams of alcohol per 100mm of blood. 11Senior Constable Winston told Mr McDonald that he had the right to be examined by a medical practitioner and have a blood sample taken and when asked if he wished to undertake that course, Mr McDonald stated that he had "fucked up." When told that his driver's licence would be suspended Mr McDonald replied that he would lose his job and then again stated "they don't look after you in this job". The Senior Constable said that Mr McDonald used an aggressive tone of voice. 12Constable Guiri then took Mr McDonald to the toilet to wash his face and stated that Mr McDonald then swore at him and told him that he knew nothing about the job. Constable Guiri told Mr McDonald that he was lucky that no one had been injured and that he was safe and well: Mr McDonald then stated in an angry tone: "Don't give the fucking lecture now, what do you know?". While being escorted to the front of the station, Senior Constable Winston heard Mr McDonald say: "This is fucked." Mr McDonald was told that if he continued to swear he would be placed in the dock to which he responded: "I am in the job, I know how it works." 13Senior Constable Drane stated that, while Mr McDonald was in the muster area, he continued telling other officers how "fucked" they were for "doing this" to him. Mr McDonald twice slammed his fist on the counter and when asked if he wished to call his wife, he told other officers to "shut the fuck up." Inspector O'Toole said that Mr McDonald appeared to be genuinely upset. He was informed about the availability of support services and that he would be driven home and placed in the care of his wife. Mr McDonald agreed and left in the company of other officers. Constable Guiri said that, at first, Mr McDonald refused to go into the back of the truck saying "that was a place for criminals, not for him being a cop." 14Senior Constable Drane stated that, when Mr McDonald arrived at his home and was led out of the truck, he walked right up to her and was approximately 30cms from her face such that she had to step back from Mr McDonald before he then entered the premises and slammed the door on the police. Mr McDonald said that he could not remember the incident but admitted that he was irresponsible to have become so intoxicated and unequivocally apologised to everyone in the New South Wales Police Force. He had said that he was extremely remorseful and ashamed and accepted that he had a drinking problem. He said that he loved being a police officer and he had been attending personal and alcohol counselling. 15Allegation One of the Notice noted that there appeared to be grounds upon which it could be concluded that Mr McDonald unlawfully drove a vehicle while affected by a high range prescribed concentration of alcohol. The Notice stated that it could be concluded that his conduct was contrary to the Police Act, The Road Transport (Safety and Traffic Management) Act 1999 and the New South Wales Police Force Code of Conduct and Ethics. These various provisions were then set out in the Notice. 16Allegation Two stated that there appeared to be grounds upon which it could be concluded that Mr McDonald had improperly and inappropriately attempted to use his status as a police officer to persuade attending officers to "P5" the accident such as to treat it as a minor motor vehicle accident and that he had improperly and inappropriately asked Senior Constable Winston to take the breath test at the Kiama Police station in his place. These circumstances suggested that it could be concluded that Mr McDonald sought to induce other officers to act dishonestly in an attempt to evade responsibility for his own conduct. The Notice said that there appeared to be grounds on which it could be concluded that his conduct was contrary to the Police Act , The Road Transport (Safety and Traffic Management) Act and the New South Wales Police Statement of Values. These various provisions were also set out in the Notice. 17Allegation Three stated that there appeared to be grounds upon which it could be concluded that Mr McDonald engaged in a rude, belligerent, abusive, unco-operative and improper manner towards attending police as well as when taken back to the Station and when he was returned to his home. The Notice stated that there appeared to be grounds upon which it could be concluded that his conduct was contrary to the New South Wales Police Force Code of Conduct and Ethics. The relevant provisions of that Code were then set out in the Notice. 18Under the heading "Consideration", the Notice then continued: Driving while affected by a high range prescribed concentration of alcohol is a serious offence. A reading of 0.205 grams per 100 millilitres of blood indicates that you were very significantly affected by alcohol at a level over four times the legal limit. Driving under the influence of alcohol is exceptionally dangerous and is the leading cause of road deaths. Your admitted conduct placed yourself and members of the public at an extremely high risk of death or serious injury. As a sworn police officer, you, of all people, should have been aware of these risks and the potentially fatal consequences of your actions. I am also extremely concerned about your alleged attempts to persuade other officers to "P5" the accident and take the breath test for you. If established, such actions would seem to demonstrate that you were seeking to use your status as a police officer to induce other officers to act dishonestly in an attempt to evade criminal charges. These allegations, if established, would seem to raise very serious questions about your integrity and suitability to be a police officer. In considering the matter, I have taken account of your expression of remorse and your good previous disciplinary history. However, even taking these matters into account, I am concerned that they may be outweighed by the seriousness of your alleged misconduct. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Force under s 181D of the Police Act 1990. ... 19The Notice annexed supporting documentation that the Commissioner stated that he had read and taken into account in issuing the Notice to Mr McDonald. It was stated that the supporting documentation augmented the matters raised in the Notice and any Response to the Notice by Mr McDonald should take into account the information contained in that supporting documentation. The supporting documentation contained statements by the police officers, a statement from Mr Tapp and photographs of damage to his car. There were also copies of a Court Attendance Notice, a FACTS sheet and COPS event. A further document considered by the Commissioner was a Record of Interview with Mr McDonald, together with his traffic record. The traffic record showed that, in July 1992, Mr McDonald had been issued with a provisional licence and in February 1999 he had been fined for exceeding the speed limit by more than 15 kms but not more than 30 kms per hour. No other traffic offences were recorded apart from his disqualification for drink driving that brought him to the attention of the Commissioner. 20A further document annexed to the Commissioner's Notice dealt with a previous complaint requiring management action. This document stated that, in October 2008, Mr McDonald was counselled after an allegation that he assaulted a security guard while heavily intoxicated after the security guard questioned the officer's behaviour.. The document also noted that he had been suspended with pay since 3 February 2009 and suspended without pay since 30 March 2009. 21Mr McDonald's Response to the Commissioner's Notice was extensive and with annexures ran to more than 40 pages. He annexed three references, two reports from a Drug and Alcohol Community Adult Team as well as photographs of the injuries he received to his left hip. He indicated in this document that a report had been requested from Dr Young and the Commissioner was asked not to deal with the Response until that report was available. 22Mr McDonald's Response dealt at some length with his personal history and family life and how he had performed at a high level in school as well as participating in local sport. He said he lived all his life in the Kiama area and was married with three children between the ages of three and six. Before entering the Police Force, he had commenced University studies reading in mechanical engineering but dropped out of University after one year. He then took up an apprenticeship as a spray painter and ultimately became head spray painter for a local motor vehicle dealer. He had been close to his father and until recently, did not fully understand how his father's early passing had affected him emotionally. He had considered a career in the Police Force and finally pursued that course. He said he had performed well at the Police Academy, achieving high marks, gaining a high distinction in a number of subjects including his double-law subjects. Approximately one year after his first son was born, he was transferred to Lakemba Police station and later transferred to Campbelltown. Mr McDonald spoke of the difficulty of performing twelve-hour shifts and travelling up to an additional three hours per day to and from his house in Kiama and how that placed stress on both him and his family. He stated that during his six years in the Police Force he performed to a high level and had conducted himself with integrity and had never been the subject of an internal or external complaint. 23In his Response Mr McDonald pointed out that the annexed document to the Commissioner's Notice concerning an incident in late November 2008 did not involve any adverse finding against him insofar as it concerned the alleged assault of a security officer. On that occasion he had been off-duty and attending the Shellharbour Workers Club that was a short drive from his home. The Commissioner referred to this as being "also alcohol related". On this occasion he became involved in a disagreement where another man punched him on the jaw and caused him to fall to the ground. As a result he was escorted from the Club and asked to leave but as he walked from the Club he told the security officers that he was a police officer and therefore was not likely to cause problems. He produced his police identification on request and then there was an allegation by a security officer that Mr McDonald had assaulted him. 24The assault allegation was not sustained but Mr McDonald was departmentally interviewed and a finding was made that he was involved in an incident when he was intoxicated and that he had announced that he was a police officer. He noted that he was not counselled in relation to the matter but had received a Warning Notice. Following an Inquiry, Mr McDonald received a Local Area Commander's Warning Notice stating that an adverse finding had been made against him that, on Sunday 28 November 2008 at Shellharbour, while off-duty, he behaved in such a manner as to impact negatively on the reputation of the New South Wales Police Force and was therefore in breach of the New South Wales Police Force Code of Conduct. The Local Area Commander determined that his conduct, on this occasion, was unacceptable and unsatisfactory but had decided that it was appropriate to deal with the misconduct by way of a Warning Notice. He was reminded that the Police Force had welfare services available to assist him. He was asked to clearly understand that his conduct was not the acceptable level required of a police officer by the New South Wales Police Force or the community. He was informed that he should clearly understand that continued unsatisfactory conduct and/or performance of duties may result in further management action which in turn may entail consideration of reviewable action under s 173 of the Police Act or removal under s 181D of the Police Act. Mr McDonald stated that, in hindsight, he believed that the incident at the Workers Club should have highlighted to him that he an alcohol problem. He now believed he was in self-denial about that matter at the time and therefore he did not seek any medical assistance. 25In dealing with the incident involving driving while under the influence of alcohol, Mr McDonald's Response stated that, in reading the particulars supplied in the s 181D Notice, he found it extremely difficult to comprehend why he would drive his vehicle when he was so intoxicated and then behave in such a poor manner towards fellow police officers. He admitted driving his vehicle and having the accident although he had no memory of it and stated that he was "extremely remorseful" about his conduct and that he fully understood the potential consequences of him driving while having a high range of alcohol in his system and that there was a possibility of somebody being seriously injured. Although accepting that these events had occurred, Mr McDonald stated his belief that, at the time, he would have been unable to comprehend the risks involved and claimed that he "had no control over his actions." He stated that he was "adamant" that he had no intention of driving home and believed that the circumstances of the evening prior to his driving had led him to leave the house under duress and in fear of his safety. He understood that it was his decision to put himself in the situation in which he found himself and thought that may have been related to his alcohol problem, a problem that he now accepted existed. 26Mr McDonald pointed out that, as he had said in his Record of Interview, he had "freely and voluntarily consumed a number of alcoholic drinks" prior to losing his memory but he thought the circumstances surrounding him becoming so intoxicated were "quite unclear." He had no memory of consuming enough alcohol to cause such a high roadside breath test reading and subsequent breath analysis reading, especially in circumstances that suggest that he had passed out for some period of time prior to driving his vehicle. His Response then records a further apology, including an unequivocal apology to the police officers who handled him during the course of the night. He understood that the incident had brought embarrassment and shame not only upon himself but his wife and family but stated that the incident was totally out of his generally good character and he found it extremely difficult to understand why he conducted himself that way. 27After the incident he sought assistance from Dr Robyn Young, a Psychiatric medical officer, especially in relation to his consumption of alcohol and his behaviour on the night in question. He again referred to his Record of Interview and repeated his acceptance that he had an alcohol problem and he also accepted that he was a binge drinker. Although he did not consume alcohol daily, on occasions he had consumed alcohol to excess. He thought that his alcohol consumption may be partly due to the need to use alcohol as a coping mechanism for the stresses of life, including his police work, shift work, his many years of travelling long distances to work, his family life and the constant struggle with his wife about juggling both work and family commitments, including financial stresses and his mortgage. He understood that this incident and the incident three months earlier had highlighted his alcohol problem. He realised his drinking behaviour was such that it was putting him at risk as well as putting at risk the reputation of the New South Wales Police Force. He was very "regretful" that such a severe incident had to occur before he fully realised and accepted that he had a drinking problem. 28Having accepted the existence of his drinking problem, he believed that he had been able to address the problem by seeking regular alcohol counselling to assist him to overcome his past drinking behaviour. He said he was "extremely committed" in that endeavour and had been attending counselling on a regular basis over the past seven months with the Drug and Alcohol Community Adult Team located at Pt Kembla Hospital. Although unable to drive, with the assistance of his wife and friends he had been able to regularly attend the hospital and had been working closely with Mr Steven Marsden, a qualified Alcohol and Drug Counsellor. This counselling had been maintained, at that time, for over seven months and he had made significant changes to his lifestyle and he had implemented relapse prevention strategies so that he did not find himself using alcohol in a harmful manner or becoming involved in any high risk situations. 29Mr McDonald spoke of becoming more physically active by running regularly, riding a pushbike, playing golf and tennis and he had focused more on family orientated activities. Over the past seven months he had basically been able to remain "abstinent from alcohol" having consumed only one or two beers at a couple of family functions. Since the accident he had only entered licensed premises on occasions to attend functions and he had been too ashamed to enter licensed premises in his home town. He no longer considered alcohol to be part of his lifestyle and he understood that he had to manage his stress in less harmful but productive ways. He stated that he had demonstrated his ability to continue with that approach. He believed that the commitment he had made to change his lifestyle would ensure that he would never again be involved in such an incident and he believed that he was no longer a risk of ever again misconducting himself and tarnishing the good reputation of the New South Wales Police Force. 30Mr McDonald spoke of already receiving a significant punishment as a result of the accident in having his licence suspended for 18 months and his family suffering significant financial loss. He had incurred costs in having counsel appear for him in court, including his appeal when the fine was reduced and he had also settled his debt in full for the damage he caused to the other vehicle because his insurance company would not cover the incident. Selling shares and using money saved by the family allowed him to pay that debt. He also spoke of the financial loss suffered regarding his own vehicle. The months since the incident were described as the most stressful and anxious time of his life, including for his family but he had shown commitment and determination in his desire to remain in te Police Force. 31He had time to reflect on the whole issue and considered that he had learned an extremely hard lesson from the incident. He understood that, if given the opportunity of remaining in the Police Force, he would have managerial and disciplinary action taken against him and he would accept that action. While he had never been affected by alcohol while at work he understood that he would be targeted for alcohol testing and was willing to accept any managerial and disciplinary action imposed if he was able to return to duty. Although he understood the seriousness of his conduct, he submitted that dismissing him for the Police Force would be harsh. It would be extremely detrimental to his family and also to the Police Force because the Force would lose "a very dedicated and experienced officer." 32In relation to the background to the January 2009 incident, Mr McDonald said that he drove his car to the Golf Club "with the intention of leaving my car at the Club if I drank too much alcohol." He said that it would not be "an uncommon occurrence" to leave his car at the Golf Club and to catch the Courtesy Bus or to get a lift home. This was the first day of his annual leave and for the past four days he had been working in extreme heat with temperatures rising between 30 to 40 degrees in the South-Western areas he patrolled. He was patrolling the public transport system on foot in extreme temperatures, including public trains that were not air-conditioned and where the heat was even greater. He said that working for extended periods in those temperatures may have had a significant effect physically and mentally over that four-day period and may have effected his reaction to alcohol and also his behaviour. 33At the Golf Club Mr McDonald said he consumed "about four schooners" of full-strength beer over a period of four hours through to 5.30 pm. At approximately that time a person with whom he had been playing poker invited him to return to his house to participate in a table tennis competition. That person was identified as Daniel Kelly, a person only known to Mr McDonald through playing poker at the Golf Club and sometimes at the Kiama Leagues Club. He had never socialised with Mr Kelly on any other occasion. Mr Kelly told him that at his house there would be a few people from the poker game and Mr McDonald stated that he had been wary of people he did not know, especially if they knew he was a police officer. However, he was aware that most people playing poker that day would have been aware that he was a police officer. He said he accepted the invitation because he did not feel he would be placed in a threatening or unsafe situation but believed that he may not have fully considered the situation "because I saw it as a chance to consume more alcohol and this was my first day on annual leave." At the time of accepting Mr Kelly's invitation, Mr McDonald stated that he was not feeling intoxicated and that he had only consumed beer over a four-hour period and offered to drive to Mr Kelly's house which was not far away. 34Mr McDonald had not previously attended Mr Kelly's house. He stated that his immediate intentions were that he would drink alcohol at Mr Kelly's place, leave his car there and catch a taxi or lift home. These intentions were made known to Mr Kelly and another person known only to him as "Tom." While driving to Mr Kelly's house they stopped at a bottle shop to purchase alcohol and Tom suggested that he and Mr McDonald should buy bourbon. Although he rarely drank bourbon, Mr McDonald agreed and purchased a 750ml bottle of Jim Beam bourbon and bottles of Coca Cola. 35Mr McDonald repeated that his intention was to leave his car at Mr Kelly's place as he had no reason to drive his car and his wife would be able to drive him back to the house the next day to pick it up. Mr Kelly's house was only two or three kilometres from his own home. Mr McDonald placed his car key in the back zippered compartment of his wallet so he would not lose it but he did not recall taking it out of his wallet. He parked his car in the driveway of Mr Kelly's house and was told by Mr Kelly that he could leave the car there overnight and could collect it in the morning. 36On entering the house, Mr McDonald poured himself and Tom a small glass of bourbon and coke. Shortly thereafter approximately six or seven people arrived at the house - some of them were known to Mr McDonald and others were not. Mr McDonald began to play table tennis and during the course of the games, he poured himself another glass of bourbon and coke. The table tennis continued and then further men and women, unknown to him, arrived at the house at which stage most people went into the backyard that overlooked the beach. Mr McDonald also went into the backyard and sat in a chair and he believed he was at the back of Mr Kelly's home for a "reasonably lengthy time." 37Mr McDonald said that the last memory he had was approximately 8.00pm or 9.00pm. While sitting in the backyard different people poured him drinks. He remembered that some of the conversation concerned him being a police officer. The drinks consumed by Mr McDonald were brought from the house and he was not present when they were poured. There were a number of people in the house whom he did not know but he remembered having approximately three more drinks and from then on his memory was hazy. After those drinks he had no further memory of being at the house other than the vague memory of waking up on the lounge in the lounge room and feeling extremely intoxicated. He stated that he had experienced some "benders" before but he had never felt the way he was when he woke up. When he woke up he saw markings on his body and recalls people laughing at him and making comments. He vaguely remembered going to the bathroom and seeing markings all over his face and pulling up his shirt and seeing drawings on his body, including his pubic area. 38It was at this point that Mr McDonald believed that his instincts reacted and he decided that he had to leave Mr Kelly's home. He had no further memory of being at Mr Kelly's home or leaving it. He had no recollection of the timeframe from his last drink to the time that he drove or what time it was when he passed out on the lounge until he woke up. It appeared that he had "passed out" for some time as there were drawings all over his body, including some obscene drawings. The drawings were all over his face, torso, legs, arms and over his back. There were also markings around his pubic region. 39Apparently, a number of photographs were taken that night of Mr McDonald while he was unconscious and they had been distributed via mobile telephones. The circulated pictures showed Mr McDonald lying down sleeping with his shirt pulled up to his chest with obscene markings drawn all over his face and torso and down towards his public area. A day after the incident he noticed that he had a large bruise on his left hip and thought he had received it in the accident. He had received information that indicated how he came to receive this bruising, namely, that after going to the bathroom and finding the markings over his body, he returned and confronted people at the house resulting in one of them grabbing a solid object and hitting him on the left hip. With the impact of the hit, Mr McDonald was told that he fell to the ground and then got up and stumbled out of the house. He accepted that he had no credible evidence that he was assaulted but he believed that the other circumstances concerning what had happened to him caused him to become aggressive and that was consistent with his behaviour after the accident. He believed that his mental state was brought about by the circumstances and his high level of intoxication when he left the house and severely impaired his thinking and when he drove the car, which was contrary to his original intention. 40Mr McDonald's view that he left the Kelly home in haste was said to be supported by the fact that police officers reported his untidy appearance, his zipper was undone and he did not have his shoes. Mr McDonald recalls wearing shoes when entering the Kelly house. He pointed out that no alcohol was found in his vehicle indicating that he was not drinking in his vehicle prior to going to Mr Kelly's home or prior to the accident. Apart from these matters, Mr McDonald had no memory or recollection of the night after he saw himself in the mirror at Mr Kelly's house and even that recollection was hazy. He had no memory of leaving the home, entering or driving his car or being involved in the accident. Despite this defective memory, he admitted that he drove his vehicle while affected by a high range concentration of alcohol and "in that state" he was involved in an accident. 41He pleaded guilty at the Local Court at the first available opportunity - he believed there were mitigating circumstances although there was no excuse for driving. The mitigating circumstances gave an insight into his state of mind at the time which he believed was severely impaired and that his actions were against his best intentions. There was also a possibility that in the accident he could have suffered any form of injury, including hitting his head and suffering concussion or suffered subsequence shock as a result of the accident. Police who attended the accident observed him stumbling and keeping his balance by holding on to the roof of the car. He was also seen to be swaying backwards and forwards. Mr McDonald accepted that behaviour was consistent with his level of intoxication but he also believed it was possible that it may have been behaviour resulting from the motor vehicle accident and his very dazed state of mind. 42Having regard to his level of intoxication, Mr McDonald said that due to the accident his comprehension about what happened caused him to act in an uncharacteristic way and to say and do things that he would never say or do under other circumstances. Having no memory of the accident, he could not deny the allegations of misconduct at the scene of the accident and his Response was not to be regarded as attempting to discredit any police involved who had to deal with him on the night. In furtherance of this approach, Mr McDonald drew attention to what he described as discrepancies between versions of events given by several police officers and otherwise pointed to areas where only one police officer made a certain observation and that was not mentioned by other police officers. Relying on the observations of police offices that he was heavily under the influence of alcohol and unsteady on his feet, Mr McDonald suggested that would be a reason why he was unable, initially, to properly participate in a roadside breath test. Nevertheless, he again expressed his sincere apologies for the way be behaved towards attending police and stated that he was "extremely remorseful" for placing them in that situation. He could not understand why he would say to Senior Constable Winston anything that would alter the outcome of his breath analysis and he found it difficult to understand why he would say such things. 43There were some alleged inconsistencies in statements surrounding this matter. It was noted in a statement made by Constable Guiri that Mr McDonald was falling asleep in the chair between questions being asked by Senior Constable Winston and that when he was awake he was continually swearing and saying that he should have run away from the crash. Mr McDonald relied upon those observations to support the fact that his state of mind at the time was severely impaired and he was consistently rambling in his speech and was confused in his thoughts. Senior Constable Winston also made observations that Mr McDonald's speech was incoherent and slurred and Mr McDonald believed that supported the view that his state of mind at the time was such that he did not know what he was doing or saying. 44In relation to allegations of inappropriate behaviour to police officers when they took him home, Mr McDonald noted that he was still stumbling and swaying and his wife thought he was still under the influence at the time. He had no memory of walking up to within 30cm of Senior Constable Drane's face causing her to step back or when entering the house, slamming the screen door on the police. His wife told him that she had closed the door. Mr McDonald believed that his thought processes were still very impaired, he was extremely emotional and unstable at this time. He again stated that he was not discrediting the police who made observations about him at this point but he did point to some inconsistencies in their statements. 45Again, Mr McDonald expressed his deep regret for the incident and his actions and apologised to all the police who attended at the scene stating that he understood how stressful it must have been for them. He said that he appreciated that his behaviour on the night was "utterly unacceptable" and even though he had no recollection of the events of the evening after he had left the Kelly house, he accepted that abusing police who were performing their duty was "appalling." He had experience as a police officer dealing with belligerent members of the public and understood that this would be even more difficult when officers were trying to deal with a fellow officer. 46Apart from this incident and the Warning Notice he again stressed that, prior to this incident, he had an unblemished departmental record and no criminal record. He asked to be given "one chance to remain in the Police Force." If he was returned to the Police he understood that he would be issued with Warning Notice and a s 173 Notice and he would not contest any s 173 Notice. He pointed out that he had a wife and three children and if he lost his employment with the Police he did not know how he would survive. He understood that, in these matters, the overriding factors were the protection of the Police Force and the expectations of the community but the impact of dismissal on his family should be taken into account as well as his previous good record. 47Two reports from Mr Steven Marsden of the Drug and Alcohol Community Adult Team, three references and two photographs of the injury to his left hip accompanied Mr McDonald's Response. Mr Marsden's two reports dated April 2009 and September 2009 spoke of Mr McDonald's participation in counselling in relation to alcohol use. It was noted that, during this stressful period, Mr McDonald had not returned to the harmful ways of coping with any difficulties and he had reached an understanding about better ways and healthier ways to deal with life stresses, especially those arising from police work, shift work and the usual family and mortgage stresses. Mr McDonald had remained focused and determined in his desire to change and had proved his ability to maintain abstinence from alcohol under the most trying circumstances. 48Mr McDonald had presented to the service more than 14 times and never once had attempted to downplay or minimise his behaviour on the night of the accident. He had always acknowledged responsibility for his actions and demonstrated a willingness to accept his part in the situation in which he now found himself. He had taken responsibility for the change required to make sure that the situation that had occurred would never happen again. Mr Marsden expressed himself as having no reservation about recommending Mr McDonald to serve in any responsible position. He further expressed the opinion that Mr McDonald had learned a hard lesson and in the future would be more of an asset to any organisation because of this experience. 49Three references were provided, two from serving officers and one from a retired officer. Sergeant David Owen had supervised Mr McDonald while he was at Campbelltown for approximately 15 months. He had known Mr McDonald as his supervisor in a working capacity. As supervisor, Sergeant Owen was in a position to review Mr McDonald's written and operational work while working beside him. He was impressed by Mr McDonald's attitude and high level of work ethic and Mr McDonald was considered one of the top workers within the Commuter Crime Unit. He possessed high levels of professional standards in areas of punctuality, uniform, respect for senior officers and other team members. He described Mr McDonald as a motivated and effective police officer who was efficient in his day-to-day work in all its aspects. Mr McDonald's "strong work ethics" were acknowledged during staff reviews conducted by the Local Area Command. 50Sergeant Owen also conducted career management and performance reviews in relation to Mr McDonald. During those reviews he was consistently rated at a greater than satisfactory level in regard to work performance. Sergeant Owen was "often more impressed" by the type of work completed by Mr McDonald who he described as an officer who would "proactively and effectively seek out the criminal element on a daily basis whilst in the execution of his duty." He had shown courage and conviction in the approach to his work at a level beyond most of his peers and at a level as high as any Sergeant Owen had worked with. Mr McDonald had never shied away from confronting dangerous or difficult persons or situations which were an aspect of policing that often could not be taught or enforced upon junior officers. He described Mr McDonald as a measured person who could be relied upon to thoroughly investigate incidents, interact appropriately with members of the public and to employ effective decision-making. 51Sergeant Owen considered Mr McDonald's actions raised in the Commissioner's Notice as being "vastly out of character" with his usual work behaviour. He considered Mr McDonald to be a mature and highly regarded officer who had been "missed" by his fellow Constables. He was an intelligent officer who was an asset to the New South Wales Police Force and the Campbelltown Commuter Crime Unit. He was hard working, respectful, efficient and effective as a police officer. Sergeant Owen stated that he held very few officers he had operationally worked with or directly supervised in such high regard as he did Mr McDonald. He said he would happily work with Mr McDonald again and believed it would be a loss to the Police Force if Mr McDonald were not to remain as a serving police officer. 52Senior Constable Boiano had known Mr McDonald for approximately seven years. During this time he had worked with Mr McDonald at three Local Area Commands both having started at Wollongong in December 2002. They were both transferred to Campsie in March 2004 but found the travelling to Campsie from Kiama and Dapto to be a constant strain both physically and financially. They were travelling approximately "200kms return trip in one shift" for approximately 3 years and both decided to find work at a closer Command. In July 2007 they were able to transfer to Campbelltown Local Area Command. The Senior Constable had worked many hours on the frontline with Mr McDonald, working in combined uniform and plain clothes operations with minimal supervision and without any complaints from management, fellow officers or members of the community. The Senior Constable had always maintained a high level of integrity and professionalism while on duty and off work and he felt that Mr McDonald maintained the same work ethic during their time in the Police Force. The Senior Constable had been with Mr McDonald at social gatherings and had visited Mr McDonald's home and met his wife and young family. Mr McDonald had always spoken highly of his family and had shown devotion as a father and husband. On some occasions at social events when the need arose they had pre-arranged a designated driver and did so "without hesitation." 53The Senior Constable did not feel that Mr McDonald would compromise his integrity in relation to his oath of office or his family while on or off duty. The incident described in the Commissioner's Notice was regarded as "out of character" and the Senior Constable strongly believed that Mr McDonald was remorseful for his actions, especially in relation to the Police Force, the officers involved on the night and his immediate family members. The Senior Constable supported Mr McDonald being allowed to remain in the Police Force and stated that, if he was given the opportunity to remain within the Force, he believed he would maintain the high standards required of an officer and prove this incident was an isolated matter and out of character. 54Mr Dennis Seage had been a member of the Police Force and had worked at the Wollongong Police station. Mr Seage had known Mr McDonald and his family since Mr McDonald was a child and his son had been Mr McDonald's childhood friend. As a child, Mr McDonald had stayed at Mr Seage's home and Mr Seage had been able to observe Mr McDonald growing up, noting that he was always polite and well-behaved, enjoying a healthy childhood and adolescence. He was aware of the contents of the Commissioner's Notice regarding Mr McDonald's behaviour and stated that no-one was more shocked than he was about these actions and regarded them as completely out of character. He stated that Mr McDonald had an alcohol problem and on occasions he had seen Mr McDonald at the Golf Club in a moderately intoxicated state but had never seen him drive his car while in such a state. On several occasions he had driven Mr McDonald to the Golf Club car park to retrieve his car. Mr Seage mentioned that Mr McDonald was very close to his stepfather who had passed away with lung cancer and in his opinion, Mr McDonald's personality changed at that time when he was approximately 18 years old. Mr McDonald displayed signs of depression and had removed himself from the Kiama community. 55Mr Seage had formed a view as to the circumstances surrounding the visit to Mr Kelly's house and the following accident. Mr Seage expressed this view in the following terms: On the day the offence was committed I believe that Adam was beguiled to the premises in question so that the questionable people there could invoke their sinister act of depravation upon him in an orchestrated attempt to humiliate him and the NSW Police Force as well as gaining notoriety for themselves. The image of Adam painted in profanities was sent to my phone and I felt physically ill when I saw what they had done to him. I suggest that Adam left the premises upon discovering what had happened in a state of "fight or flight" and he certainly wasn't thinking straight. As far as his behaviour towards attending police, I can offer no explanation other than to suggest that perhaps something was placed in his drinks at the house he visited. I believe Adam possesses a great deal of integrity and pride in his position as a police officer. When he asked the BAS Operator to give a sample of his own breath, again, I can only suggest that he was involuntarily under the influence of some kind of mind-altering drug. Adam would be the first person to report such an act if the positions were reversed. 56Mr Seage observed that Mr McDonald was a family man who dearly loved his wife and three boys, spending a lot of time with them and they appeared to be well-adjusted children. Mr McDonald's wife was a devout Christian who, on most Sundays, attended the local Catholic Church with the boys. In his view, Mr McDonald had seen the error of his ways. Mr Seage regarded him as "being back to his old self." He had tackled his drinking problem head-on and now devoted his life to his wife and children. He asked the Commissioner to give Mr McDonald another chance as indeed he was giving his family another chance so that they could move on and Mr McDonald could once again hold is head high. Knowing Mr McDonald very well, Mr Seage believed that, if he was given another chance, he would dedicate himself by study and work so as to perform with credit and distinction in any position the Commissioner might appoint him. 57In one area there was a contest as to the nature of Mr McDonald's behaviour towards the police officers who had delivered him to his home after been taken to the police station after the accident. Mrs Rebecca McDonald, Mr McDonald's wife, provided a statement and gave evidence in the proceedings. She had read all the material served upon her husband, including the s 181D Notice and the Dismissal Order. 58Mrs McDonald was asleep when the police arrived with her husband. An officer informed her that her husband had been involved in a car accident and had been drink driving and was in the back of a police van. Mrs McDonald stated that, when her husband got out of the truck, he "looked drunk". He was stumbling a bit and swaying and he had black markings all over his face. Mrs McDonald spoke to the police while her husband walked to the bottom of the front stairs and waited for her. She said her husband did not say anything and after she had finished talking to the police, they walked down the front steps and her husband walked past them and up the steps. 59Mrs McDonald had read in the Commissioner's Notice that a female police officer said at some stage that her husband had walked right up to her and looked at her angrily as if he was going to do something. Mrs McDonald said that she could honestly say that she did not see such an incident happen. She did note that when they passed they were very close as the front steps to the house were only approximately one metre wide. In her observation this was the only time that her husband was close to the female officer and she did not see her husband act in an angry or aggressive manner when the police were at the front of the house. She had also seen a police statement that her husband walked into the house and slammed the door on the police but she knew this did not happen. She was standing at the front door when her husband walked past her and into the house and she closed the door, not her husband. She did not slam the door or let the flyscreen door slam as it was late and her children were asleep. She stated that she would never slam the door on the police or anyone else for that matter. 60Mrs McDonald said she had seen her husband drunk on occasions but had never seen him like this: he was usually a very controlled person and did not show much emotion. She had seen the graphic pictures and writing on his face and legs and the obscene writings all over his stomach and back. The writing included the words "fuk the pigs" on his back. The pictures went down towards his groin area. He appeared to be in shock. Later, he became aware of the large bruise on his hip but he was unable to say how he sustained it. 61When her husband went inside the house, Mrs McDonald noted that he was emotionally upset - he appeared to be still drunk and that he was becoming angry with himself and crying. He kept apologising to her and she could see that he appeared confused about what had happened and that he was not making "too much sense" other than apologising and swearing at himself. He was unable to tell her exactly what had happened. 62Mrs McDonald then spoke about Mr McDonald's nature and personality. They had been together for sixteen years and had been married for ten years. She knew her husband to be a caring and responsible person and they had a very loving and caring relationship. Her husband was described as a loving father who admired his boys and did everything for them and for her. The relationship had continued strongly despite the enormous amount of stress and heartbreak caused by the incident. She understood her husband to be dedicated to the Police Force and he loved the job. 63The incident had a major impact on Mr McDonald and the whole family. Her husband felt "tremendous guilt" and there was an extremely detrimental financial impact involving meeting the costs of paying the damages caused by the accident, the loss of their vehicle, costs of court proceedings and the loss of his wages. Those costs had run into tens of thousands of dollars and Mrs McDonald had to increase her work hours to try and cover the costs of everyday living, their mortgage bills and putting food on the table. She stated that it had become increasingly difficult to the point where their future was looking "very dire" with a very real threat of losing their house. The accident had an extreme emotional impact on her husband and herself. She could see the real devastation and loss her husband had felt as a result of being dismissed from the Police Force. During the past 19 months she and her husband had been through great emotional stress. Her husband had always provided for her and the family and he loved his wife and his boys immensely and the accident and its consequences had a most profound effect upon her husband. 64Mrs McDonald had observed the dedication her husband had put into addressing his alcohol issues and noted the success he had achieved. Mrs McDonald and her family had always managed to take her husband to any counselling appointments with Mr Marsden or Dr Young and she believed her husband had remained strong in the face of extreme adversity and had remained committed to not drinking alcohol to the extent he had on previous occasions. Her husband was now even more family focused but he had always been a great husband and a great father to his children. He was very much a family man who loved his children and did everything he could for them. She expressed the hope that this incident would be regarded as a total aberration on her husband's behalf. 65In oral evidence, Mrs McDonald said that when her husband got out of the vehicle he looked at her and he did not take his eyes off her until he got inside the house. She did not think that he had leered at Constable Drane. Once inside the house he was swearing and blaming himself for the accident but she was not able to obtain much information or detail from him. He was sad and still drunk. When he was brought into the house he was stumbling. 66Two reports regarding Mr McDonald were prepared by Dr Young, a psychiatric medical officer. Over the past eight years Dr Young had professionally dealt with, amongst others, New South Wales police officers and since 2000 had also been involved with drug and alcohol issues. Dr Young had over 30 years post-graduate training and clinical experience in both Australia and the United Kingdom. She had worked in full-time private psychiatric practice for the past nine years. Mr Marsden of the Illawarra Health Service had referred Mr McDonald to her for assessment arising from the circumstances of his drink driving and subsequent behaviour that led to his removal from the Police Force. 67The first report was provided in November 2009. The s 181D Notice had been provided to Dr Young and she was aware of the background that led to Mr McDonald's employment being considered by the Commissioner. On presentation he appeared depressed but showed no evidence of intoxication and gave a concise and coherent history and did not attempt to deny the events described in the Notice. He did reinforce his claim of minimal to zero recall of events that led to the car crash and the subsequent events and behaviour alleged to have occurred at Kiama police station. Mr McDonald described those events and his behaviour as contrary to the way he normally thought and acted and that was supported by his wife. He expressed the hope that Dr Young might provide some insight into his state of mind on the night in question. 68In providing background history, Mr McDonald spoke of his alcohol use stating that he noted that his intake of standards drinks was less than three pints of beer per day but that had increased to approximately ten pints per week over the past eight to nine months. He was drinking more on social occasions spent with friends, for example, at his regular poker game at the Club. This had not caused any problems before the accident but on reflection he admitted his memory of such occasions was often impaired and he felt more irritable. He had consciously determined to control any further binge drinking excess. 69In relation to family relationships, a history was given of a happy, family-oriented marriage where Mrs McDonald had encouraged her husband to have time out each week for himself by joining the poker game with friends at the Club on Sunday afternoons. Mrs McDonald had never experienced problems with her husband because of undue irritability or intoxication and her husband had been an excellent father with few interests outside his family and work. The events of 26 January 2009 were unexpected and so out of character that Mrs McDonald at first had not recognised the serious implications. Since his suspension, the couple had seen more of each other and their friends and had realised the importance of maintaining a strong social network. Mr McDonald had benefited from alcohol counselling and had cut his intake to a maximum of three pints per week. 70Mr McDonald covered the events of the night of the accident. Mrs McDonald described her husband as "shocked" on his return home after the accident and she had not seen him like that before. She spoke of his clothing being in disarray and the he could not explain the "penile graphics". There had been no recurrence of alcohol mis-use and he had gained benefit from attending drug and alcohol counselling over the next seven months. At the time of this report, he rarely drank alcohol and never more than three pints in twenty-four hours or more than three times per week. Mr McDonald told Dr Young that "as required by law" he had no contact with Club members involved in the January 2009 events. 71In her comments on these matters, Dr Young said that the high levels of alcohol in his system, could explain Mr McDonald's behaviour on the night. She referred to the levels recorded and the fact that they may have exceeded those levels. She was in no doubt that Mr McDonald showed classic symptoms of alcohol "overdose" where behaviours were uncontrolled and inappropriate and his recollection of events was minimum to zero as in a blackout. The risk of physical damage to liver and kidneys was considerable, especially if that type of drinking became habitual. She described Mr McDonald as a healthy young male who responded to supportive treatment provided by his wife and observed that significant dependence after such an episode and successful withdrawal was unlikely in someone whose consumption was less than eight standards drinks per day. 72In summary, Dr Young stated that the events described in the Commissioner's Notice were alarming and contrary to both the behaviour and self-discipline required of police officers and those usual for Mr McDonald. His intoxication occurred in a seemingly friendly environment but the exact circumstances leading to the accident and his behaviour at the police station remained obscure. Dr Young stated that it appeared that he may have been the victim of alcohol related group behaviours and his disinhibited behaviour at the accident and at the police station and minimal to zero recall of events may be largely attributed to severe alcohol overdose. As Mr McDonald had followed up therapy and had not relapsed into alcohol misuse and because he and his wife had realised the importance of maintaining strong personal and social network contacts, she recommended that he be given a chance to continue in the Police Force, perhaps under monitoring for a period of time such as 12 months. Dr Young offered to continue therapeutic support as required. 73In her oral evidence, Dr Young explained that the term "alcohol overdose" referred to the circumstances where alcohol was at such levels that it was more than just impairment of their cognition but where memory, cognition and behaviour were really impaired and where the person was prone to respiratory and cardiac effects of alcohol and usually lapsed into unconsciousness. If not recognised, this in turn may lead to death. She had seen people who were in this state as described by Mr McDonald where their behaviour was highly suggestive and later confirmed to have been in a state of alcohol overdose and they needed to be taken into care. 74In September 2010, Dr Young provided a further report. In this document Dr Young dealt with treatment that was provided to Mr McDonald since the November 2009 report. In relation to this subject, Dr Young recorded ongoing supportive acceptance/commitment based counselling; emphasis on life skills/stress reduction; reinforcement of knowledge gained about alcohol, including risk avoidance practices being provided in a drug and alcohol programme. Mr McDonald had complied with management programmes but did not request medication. In relation to Mr McDonald's progress, reference was made to steps taken to strengthen family ties. Mr McDonald no longer used alcohol to relieve tension and anxiety and had not exceeded daily alcohol intake recommended by The Australian Guidelines of no more than four standard drinks per day. Most days were alcohol free and he was aware of and avoided high-risk situations such as "going for a beer with mates." He had limited maximum alcohol consumption of two to three light/mid-strength beers at social functions and had maintained a healthy lifestyle by staying active with surfing, cycling, playing tennis and playing with his children. 75Dr Young stated that the most appropriate diagnosis for the behaviour that occurred in January 2009 was alcohol intoxication which was to be distinguished from alcohol dependence or abuse, both of which implied high risk of chronic physical health and emotional disorders. Mr McDonald had no evidence of significant mental illness and complied with and gained valuable insights from counselling attended over a period of 20 months. He had used knowledge and skill gained in this way to achieve and enjoy a marked improvement in his personal and family life. She believed that, although he had exhibited signs of alcohol consumption over the preceding 12 months, as yet unclear factors, not of Mr McDonald's making, may have contributed to the high levels of blood alcohol and subsequent adverse events recorded in January 2009 and given as reason for his dismissal from the Police Force. She requested that Mr McDonald be allowed to resume duties as a police officer, offering the opinion that the chances of relapse or behaviour incompatible with police standards were "slight." Dr Young stated that, if Mr McDonald was returned to police duty, she would be pleased to offer ongoing support during an agreed return to duty programme, perhaps one monitored over a period of 12 months. This would enable his performance to be objectively assessed by rules and regulations required for serving police officers. 76In this report, Dr Young again returned to the issue of the level of Mr McDonald's intoxication during the January 2009 incident. She stated that Mr McDonald showed classic symptoms of alcohol overdose where behaviours were uncontrolled and inappropriate and recall of events were minimal to zero. Alcohol overdose occurred where blood levels reached a high range and it was a potentially fatal condition. Dr Young noted that the Commissioner for Police had stated that he had concluded that Mr McDonald had sought to induce other officers to act dishonestly in an attempt to evade responsibility for his misconduct, observing that suggested intent and that Mr McDonald was in control of his behaviour. The Commissioner's view contrasted with the well-recognised behavioural disorders and impaired judgment and memory associated with the high blood alcohol found on testing at the Kiama Police station sometime after Mr McDonald had finished drinking. The Commissioner's reference to "binge drinking" also implied intention, that was, drinking only to get drunk. Dr Young said this did not appear to have been Mr McDonald's only purpose or the result of his weekly time-out at the Kiama Golf Club. He usually came home in time, fit to care for his children while his wife slept and then went to work in the early hours of the morning. If he felt he was over the limit he walked home and collected his car the next morning. At the end of January 2009 he realised that, over the period of approximately nine hours between going to the Club and the time of the accident, he would have had an alcohol intake sufficient to impair driving. In those circumstances he had obtained the permission of the house owner/host to leave his car at the home overnight and to walk home. To the extent that mind altering drugs may have been the reason for Mr McDonald's behaviour on the night, while it could not be ruled out, it could not be substantiated either - alcohol was, however, a proven and credible cause of the effects of substance intoxication. His earlier recorded drinking suggested only slightly elevated blood alcohol levels existed when Mr McDonald arrived at the house after the poker game. 77In relation to the Commissioner's view that Mr McDonald exhibited a "selective memory" of the surrounding incidents, Dr Young noted that, at the house, Mr McDonald mixed two bourbon drinks for himself with the next two to three being mixed by someone else not within his vision. He had no control over the concentration of alcohol and felt "woozy" after a total of four to five such drinks. The time lapse between that happening and whether the drinking continued could not be ascertained although it was known that there was approximately five hours between arrival at the house and the accident. Mr McDonald's recall of events before his blood alcohol reached levels associated with impaired cognition was compatible with the effects of gradual intoxication. Although he had poor recall of events after he awoke, he did remember people laughing and making remarks he could not understand but felt were derogatory and threatening. He could not identify the people at the time as everything was blurred and he panicked when he saw the penis graffiti. The next day he found bruising on his left hip and it remained unclear how this happened. 78Later in her report, Dr Young expressed the view that consideration and credit should be given to Mr McDonald for his recognition and acceptance of his drinking problem, his genuine expression of remorse and his concerted efforts over approximately two years to work with therapists and family to identify and overcome compounding factors. Mr McDonald now had the knowledge, skills and drive to maintain a more balanced life. Dr Young noted that she had frequently worked with police officers on stress leave and during her nine years in the Illawarra, she had learned to discern those she believed were able to return to former or altered duties and those better to return elsewhere. She expressed the view that Mr McDonald should be given another chance in the Police Force stating that, at 35 years old, he was chastened but enlightened by his experience and had many more years of service to offer. DELIBERATION 79It is necessary to initially consider the Commissioner's Reasons for the decision to remove Mr McDonald from the New South Wales Police. In view of the structure of the legislation a degree of repetition is unavoidable as the same issue or conduct is required to be considered under a number of headings. The initiating concerns were set out in the s 181D(3)(a) Notice and the order made under s 181D(1) removing Mr McDonald from the Police Service was accompanied by a Statement of Reasons as required by the Police Act . Those Reasons dealt with Mr McDonald's conduct and integrity. 80It is clear from the Commissioner's Reasons that Mr McDonald's drunk driving and his involvement in a motor vehicle accident while under the influence of alcohol then focused attention upon Mr McDonald's behaviour for the remainder of that night. That behaviour was then viewed against the background of a Warning Notice recently served upon Mr McDonald that drew attention to his off-duty conduct while under the influence of alcohol. Mr McDonald's account of events on the night of the incident and his consumption of alcohol at the Club and the private home left him in a state of high intoxication such that, after the accident, he was recorded with a high range of prescribed concentration of alcohol in his blood. It was clear that Mr McDonald should never have driven his car that night and that in doing so he put at risk other road users and people in the vicinity of the roads he was using. This conduct brought him, as a police officer, before the Local Court where he was disqualified for holding a licence for a period of 18 months and was fined although the fine was reduced on appeal. 81The Commissioner was entitled to be deeply concerned about this behaviour alone but Mr McDonald's behaviour towards his fellow officers on the night and his prior drunken behaviour (resulting in him receiving a Warning Notice), combined to aggravate the seriousness of his conduct. Mr McDonald's treatment of his fellow officers, involving sustained abuse of them and the application of pressure upon them in order to aid him in avoiding detection for a serious criminal offence, clearly raised serious issues of integrity. 82Mr McDonald could not have ignored the serious consequences for his continued heavy drinking after he had so recently received the Warning Notice. By the time Mr McDonald came to respond to the Commissioner's Notice he was able to admit to having an alcohol problem and being a binge drinker. 83The third ground dealing with Mr McDonald's rude, belligerent, abusive, unco-operative and improper manner towards attending police at the Kiama Station and at his home needs to be broadly considered as two incidents. The first incident covering the behaviour toward police attending at the scene and attending the Kiama police station demonstrates lamentable behaviour over a considerable period of time and has been commented upon above. The second incident may be regarded as the complaints made about his leering and intimidating conduct when brought home by police officers following Mr McDonald leaving the police vehicle and walking inside the front door of his home. This is the only class of behaviour that is contested by Mr McDonald. 84Mrs McDonald's evidence supports her husband in that, apparently, she was closely watching him and she did not see any leering or intimidating conduct or overbearing of an officer by standing very close to her. Mrs McDonald's evidence also rejects the proposition that, as he entered the house, her husband slammed the door or the screen door in the face of the police officers. Indeed, Mrs McDonald claims to have quietly closed both doors because she did not wish to wake her children who were asleep. 85These two versions are difficult to reconcile but it is clear that Mr McDonald was still well under the influence of alcohol when he arrived home with the police officers and that he was unsteady on his feet. It may well have been that, having regard to the narrowness of the steps, he came into close proximity with the female Constable and having regard to his behaviour throughout the night, she might well have formed the view that this was another example of Mr McDonald behaving improperly - against that background, she took offence at what she believed to be an intentional act. Having regard to the seriousness of the other allegations, this incident is of minor significance. It is, nevertheless, entirely possible that the evidence of the police officers and Mrs McDonald are both correct but it is the perceptions of those actions and events that differ. Having regard to Mr McDonald's intoxicated state when brought home to face his wife, it is possible that it was his unsteadiness and lurching behaviour that brought him into close proximity with the female Constable and was simply due to his continuing state of insobriety. In any event, this second incident arising under the third allegation is not determinative of the seriousness of Mr McDonald's conduct and whether or not he should succeed in his application for reinstatement. 86In his Reasons for Decision the Commissioner acknowledged that "from the outset and throughout your Response" Mr McDonald had expressed and reiterated his extreme remorse for his actions in relation to the incident and had acknowledged that his behaviour was "unacceptable", that he felt "ashamed" and that the behaviour was out of his "general good character". Having recorded those expressions of contrition and remorse, the Commissioner gives no indication as to how he weighed the significance of those matters or, indeed, whether he gave those matters any weight at all. 87The Commissioner noted that, in his Response, Mr McDonald admitted that he had a drinking problem and had accepted that he was a binge drinker. Mr McDonald believed that life stressors, including his duties as a police officer and personal financial pressures as well as other matters, had led him to increasingly consume unacceptable levels of alcohol. Mr McDonald stated that he was "very regretful" that it took such a severe incident for him to fully realise and accept that he had a drinking problem. He informed the Commissioner that he had been able to address the problem by seeking regular alcohol counselling to assist in overcoming his past drinking behaviour. Mr McDonald expressed himself as being extremely committed to that endeavour and over the past seven months he had been attending counselling on a regular basis with the Drug and Alcohol Community Adult Team located at Pt Kembla Hospital. He spoke about the difficulty of maintaining appointments at the hospital and how he had received support from his wife and family and how his one-on-one counselling over the past seven months had led him to make significant changes to his lifestyle. 88Mr McDonald spoke about implementing relapse prevention strategies so that he did not find himself using alcohol harmfully or becoming involved in any high risk situations. He had become more physically active and exercised regularly. Mr McDonald also stated that, since the accident, he had been able to remain "abstinent from alcohol" over the past seven months, consuming only one or two beers at a few family functions and only entering licensed premises a few times to attend functions. He had the support of his family in his determination and commitment to change his previous unhealthy and harmful use of alcohol. He no longer considered alcohol to be part of his lifestyle and he understood that he had to manage the stress of life in less harmful but more productive ways and had started to do precisely that. He submitted to the Commissioner that he had displayed and had been able to continue his commitment to that endeavour even under pressure and stress and stated that his commitment to changing his lifestyle would ensure that he would never again be involved in such an incident. 89These were all significant matters and while the Commissioner acknowledged Mr McDonald's acceptance that he had an alcohol problem and had been a binge drinker, the Commissioner makes no mention of the considerable efforts made by Mr McDonald to address these problems with the aid of counselling. It is not known whether the Commissioner rejected that material or if he accorded it little or no weight because of the overall seriousness of Mr McDonald's conduct. 90The Commissioner's Decision was dated 4 December 2009 but it makes no direct reference to the contents of the report of Dr Robyn Young dated 2 November 2009. The Commissioner made no comment as to Dr Young's opinion that Mr McDonald showed classic symptoms of alcohol "overdose" where his behaviour was uncontrolled and inappropriate. Dr Young also referred to counselling undertaken by Mr McDonald and how he was building strong social and family networks and relationships in order to relieve him of the stresses that led him to admittedly binge drink. Dr Young recorded that Mr McDonald had followed therapy and had not relapsed into alcohol misuse and by reference to his reduced alcohol intakes expressed the view that significant alcohol dependence after an episode of this nature was unlikely in someone whose consumption was less than eight standards drinks per day. She had recommended that Mr McDonald be given a chance to return to work in the Police Force. 91These opinions expressed by Dr Young were not acknowledged by the Commissioner and indeed, there is no specific reference to Dr Young's opinions, although the Commissioner refers to his pleasure at Mr McDonald receiving assistance from a "Psychologist". Again, it is not known whether Dr Young's opinions were given any weight but the decision of the Commissioner demonstrates that he rejected her recommendation that Mr McDonald continue to work as a police officer and apparently also rejected her view that alcohol "overdose" could led to memory loss. Indeed, the Commissioner expressed the view that the issues raised by Mr McDonald in his Response constituted "selective memory" and spoke to his integrity. The Commissioner gives no reasons for rejecting Dr Young's opinion on the effects of alcohol "overdose". 92In dealing with Mr McDonald's previous conduct while heavily intoxicated, the Commissioner's Reasons noted that Mr McDonald had come under notice for inappropriate off-duty behaviour resulting in him being counselled in October 2008 "for an alleged assault of a security officer" whilst he was heavily intoxicated. The Commissioner expressed a concern that he was establishing "a pattern of behaviour around this issue". Two issues immediately arise in relation to this brief paragraph appearing in the Commissioner's Reasons. Firstly, there was no finding that Mr McDonald was involved in any assault although that suggestion was made but could not be substantiated. The fact that the Commissioner repeated the reference to an alleged assault when he had been informed in Mr McDonald's Response that no such finding had been made suggests that the Commissioner overlooked that matter. Bearing in mind the overall thrust of the Commissioner's decision, it appears that the Commissioner was of the view that Mr McDonald, whilst heavily intoxicated, had become involved in an alleged assault on a previous occasion and in relation to the incident occurring in late January 2009 he was again involved in behaviour whereby he was aggressive and abusive of fellow officers while heavily intoxicated. 93The second issue relates to the Commissioner's expressed concern that Mr McDonald was establishing a pattern of behaviour around this issue is, at least, a reference to continuing bad behaviour and aggressive behaviour while heavily intoxicated. A concern that pattern was being established by Mr McDonald also suggests that the Commissioner either rejected or placed no weight on Dr Young's opinion that Mr McDonald had undergone counselling and had maintained a reduced level of alcohol intake over a period such that he was unlikely to now suffer significant dependence on alcohol. It was because of his ability to adhere to the course of counselling and his changed attitude that led Dr Young to conclude that he should resume the important duties of a police officer. 94This comment by the Commissioner also suggests that he did not accept Mr McDonald's statement that, after seven months of constant counselling which he had completed and through the steps he had taken to reduce his consumption of alcohol and increase his exercise and the steps taken to change his life, he was committed to not allowing alcohol to affect his life and work as it had in the past. There is no material in the Commissioner's documents that contradict Dr Young's opinion or calls into question Mr McDonald's statements. During the hearing, there was cross-examination of Dr Young and Mr McDonald but there was no serious contest raised about these matters. 95It is worthy of note that the Commissioner formed the adverse view that Mr McDonald had exhibited a selective memory and that it spoke as to his integrity. That comment was made in the context of noting that, although Mr McDonald stated that he suffered a lack of memory in relation to his alcohol consumption on the night, he nevertheless recalled that his body was covered in drawings and that prompted his decision to hurriedly leave the premises and to drive the car in an intoxicated state. The fact that he was covered in drawings and writing over his body, however, could hardly have been avoided by Mr McDonald: he had taken pictures of the drawings and his bruises and later, after his return home from the Kiama police station, his family helped scrub him clean. It is difficult to see how that undoubtedly traumatic memory that continued well past arriving home from the Kiama police station could be used against him as evidence of a "selective memory". 96It is true that Mr McDonald stated that, when he awoke in something of a stupor, he was alarmed to find the drawings and writing all over his body and had no memory of how they got there. Because he then found people making jokes about him (although he could not remember precisely what they said), led him to flee the house. By that time it must have been obvious to him that it was unlikely that he would get any assistance to travel home safely and there did not appear that there were people well disposed to him at that house. Mr McDonald then, in his still drunken state, decided to drive his car away from the house to remove himself from what he must have feared to be a hostile atmosphere. It does not follow that, because he lost track of the drinks he was consuming in the late afternoon and appears to have lost consciousness for some indeterminate period during the night, he exhibited a selective memory by recounting what was written on his body and the fact that he drove his car away, especially since it was the accident that led to his career being scrutinised with the prospect of his losing his job. 97The Commissioner referred to Mr McDonald's Response where he spoke of his alcohol problem and being a binge drinker and that alcohol issues were attributed to the stresses of life, police work and shift work, years of travelling and financial stresses arising from family and life commitments. The Commissioner conceded that the circumstances leading to his drink driving were compromising and perhaps embarrassing and even a reflection of his cited "life stresses", - the Commissioner then stated - "I do not believe they justified binge drinking or absolve you from your actions in this situation". This comment appears to be at the heart of the issue between the parties. In both the Commissioner's Reasons for Decision and in the submissions made on his behalf in this Commission, there was a constant theme that Mr McDonald had knowingly consumed alcohol and had put himself in the position where he was consuming to excess and that he could not shirk responsibility for his actions while intoxicated. Mr McDonald could not say that he was not responsible but that it was his level of intoxication that was responsible. 98This line of argument found some basis in the submissions made on behalf of Mr McDonald, namely, that he was so intoxicated that he was incapable of forming the " mens rea " to commit the criminal offence of drink driving or for that matter, his attempts to persuade police to cover up or hide his offence. A reading of Mr McDonald's response and the supporting reports of his counsellor and Dr Young suggest a very different approach. Mr McDonald came to realise, because of this very incident, how alcohol was ruining his life and made a decision not to place himself in that position again. Through difficulties he attended counselling and there is no record of him "falling off the wagon": both his counsellors and Dr Young accept that he has made a life changing decision (which he has now kept for in excess of 20 months)that involves very moderate amounts of alcohol consumption. Mr McDonald's reference to his state of intoxication and his binge drinking appeared to have been put forward not as an excuse to absolve himself from his conduct while so intoxicated but rather was put forward as the underlying reason why he engaged in that conduct. In his Response and in his dealings with those who have counselled and medically advised him, he and his wife have spoken about the person who had conducted himself so abominably in these events not being the real person and that the real person was a much better person than that. Here Mr McDonald was drawing attention to alcohol as a contributing factor and in that sense an exploration of how he came to act in the numerous ways about which there were justifiable complaints. This was abnormal conduct for him and highlighted a more significant alcohol problem (see, similarly, Lawrance v Commissioner of Police [2010] NSWIRComm 149 at [260]). 99Properly understood, Mr McDonald's Response and his evidence in this Commission were in acceptance of responsibility for his appalling behaviour and his drinking problem. He pointed to the fact that he was a good student with high marks in qualifying as a police officer and for six years he had an unblemished record with no other hint of driving while under the influence of alcohol or abusing and standing over his fellow officers in order to obtain some advantage for himself. He was well regarded by those in senior positions and was otherwise a responsible family man. This was an explanation that deserved some better recognition from the Commissioner both in his Reasons and then in his submissions to this Commission. 100After making the above statements, the Commissioner referred to alcohol being exceptionally dangerous and the leading cause of road deaths and how the Police Force had campaigned for many years against drink driving and the resultant road trauma. He then referred to his job being to relate to the people of New South Wales that he would not "tolerate misconduct caused by binge drinking nor drink driving and in your case, it's both". Ultimately, the case that had been put forward on behalf of Mr McDonald was not one that asked the Commissioner to tolerate drink driving or binge drinking by police officers. Mr McDonald did not ask that he be allowed to escape scot-free because of this disastrous incident. If reinstated, he offered himself for further disciplinary action under s 173 of the Police Act. He was accepting responsibility for his actions but placing those actions in a context in an attempt to demonstrate to the Commissioner that he was a different and more responsible person to the person who reacted so badly because he was heavily intoxicated and now, realising that fact, how he had taken steps to change his life and his drinking habits. Endorsement of that message does not harm the Police Service but demonstrates its compassion in appropriate cases and should be seen as at least part of an approach across the Police Service to address the problem of excessive alcohol consumption by police officers, so regularly seen in this Commission. 101The Commissioner's Reasons noted that, if Mr McDonald had now applied to join the New South Wales Police with his current conviction for such a serious PCA offence (a reading of 0.205 grams per 100 millilitres of blood), he would not be accepted. The Commissioner also noted that such a conviction by members of the public often could and did attract a jail sentence. The Commissioner does not indicate whether this has always been the case with high-level PCA convictions or whether it represents a more recent tightening of entry qualifications but it does underline the seriousness of the Commissioner's regard for such convictions. The Court of Criminal Appeal's guideline judgment however does not require a high level PCA conviction to automatically result in a prison sentence but does require consideration of this possibility. There have been a number of cases before the Commission where police officers have been removed and where the excessive consumption of alcohol has been a feature of the behaviour and there was at least one decision, upheld by a Full Bench of the Commission, where an officer was reinstated after having been removed for driving a motor vehicle while under the influence of alcohol. While the Commissioner's statement as to the seriousness of a police officer drink driving are absolutely warranted, the Commission's role on review requires a consideration of such conduct in a broader context and each case has to be considered on its own merits. 102The Commissioner adversely noted that, in his Response, Mr McDonald had drawn attention to inconsistencies in the statements of some of those police attending him at the scene and who were present at the police station. The Commissioner noted that the weight of the evidence was heavily against Mr McDonald and as most of that evidence was from police officers or "creditable persons" he would not give the issue any further consideration. Mr McDonald's Response, however, did not attempt to deny his drink driving, the accident and his treatment of police officers at the scene of the accident and at the police station - although he said he had little memory of these events because of his state of intoxication he accepted that they occurred and on several occasions expressed his deep regret for what he described as not being his normal behaviour. In dealing with the statements of the police officers, to whom he had offered his apology, Mr McDonald did no more than draw to the Commissioner's attention some discrepancies between their accounts as recorded in statements or records of interview. In doing so, Mr McDonald again acknowledged that, because of his state of intoxication, he was in no position to deny what had occurred and it was in those circumstances that he was doing no more than drawing attention to some discrepancies in order that the Commissioner might have a clearer view of what occurred. 103A fair reading of Mr McDonald's Response does not suggest that he was attempting to evade responsibility or in some way seeking to diminish the several apologies he had made in that Response nor could it be said that he was attempting to reduce his level of responsibility for his own conduct. The Commissioner was, therefore, being requested to do no more than take these discrepancies into account in forming a final view as to what occurred at several stages of the events of the night and as such, Mr McDonald was entitled to do so. In the context explained by Mr McDonald, the raising of those matters should not have led to any further adverse comment being made or view being formed by the Commissioner. It is sufficient to note that the undisputed record of events showed that Mr McDonald acted in a reprehensible way in dealing with his fellow officers on this night. 104In the Commissioner's Reasons reference was then made to photographs supplied by Mr McDonald showing the obscene writings over his body and the bruising injury to his thigh. The Commissioner stated that he had "carefully reviewed" those photographs and other reports and personal references that had been supplied with Mr McDonald's Response but stated that he saw no "additional mitigation or reasons for your actions" that would provide the Commissioner with any basis not to lose confidence in his suitability to remain a police officer. The photographs of Mr McDonald and his statement about how he came to be in this condition with bruising to his thigh should have sparked some investigation into the activities of others in the house on the night in question. The pictures of Mr McDonald clearly show him either asleep or passed out and his own evidence was that he had passed out. The writings and pictures over his body were clearly designed to hold him up to ridicule and abuse, especially in view of his occupation as a police officer. 105Mr McDonald had provided the police with a statement of what he had been told about the circumstances in which he had been hit in the thigh causing bruising. The pictures of Mr McDonald with his shirt pulled up and displaying the obscene writings and pictures on his body was then distributed in the community via email. Those circumstances, together, should have been sufficient for police to investigate the state of affairs surrounding Mr McDonald ultimately being found in this condition. The police were aware of the address and had been informed of the name of at least the owner of that house yet there does not appear to have been any separate police investigation of what occurred. Mr McDonald's evidence that he was told by senior officers not to approach anybody from the house on that night was not challenged in cross-examination and he had given the same information to Dr Young. An investigation by police might well have been able to probe whether Mr McDonald was a drunken participant in these events, or any of them, and may have been able to shed light upon his level of drinking and how he came to pass out or fall asleep and the circumstances in which the pictures of him were taken. The failure to initiate a separate police investigation into this aspect of what occurred to Mr McDonald is a curious omission and left the Commissioner with potentially only part of the story of the events of the night. 106The Commissioner in reaching his decision apparently rejected the references from police officers as to the normal conduct of Mr McDonald, especially from officers who had worked with or supervised him. While the Commissioner acknowledged that those references were provided, he gave no explanation as to why the views expressed by those officers should be rejected. It was clear that Mr McDonald's Response was relying upon his six years of largely unblemished conduct while on duty, his diligence in his work and his normal good behaviour when not under the influence of alcohol. In short, Mr McDonald was submitting to the Commissioner that his actions on this night were an aberration and nothing like that had occurred before, especially in relation to driving while under the influence of alcohol and abusing, mistreating and attempting to suborn fellow officers in the course of their duties. 107Against these matters the Commissioner said that he did not see any mitigation or reasons for Mr McDonald's actions that would provide a basis for the Commissioner not losing confidence. The references, of course, accepted the seriousness of his conduct but placed that conduct against what was known of him over a lengthy period of observation and working contact. The Commissioner had raised Mr McDonald's integrity and character and these people were able to provide first hand observations, thus providing a wider viewpoint. These were important references to consider and weigh in the balance when determining Mr McDonald's future but the Commissioner's comments in his Reasons for Decision gives the impression that the references were almost irrelevant to his decision-making process. Indeed, that was consistent with the manner in which his case was argued in the Commission and where emphasis was laid almost solely upon Mr McDonald having to accept responsibility for his unacceptable actions on this night and his excessive consumption of alcohol. 108The case for Mr McDonald raised many issues but at their core was the submission that his behaviour on this night was an aberration and his commitment to counselling and monitoring by Dr Young meant that the Commission could readily accept that this type of conduct would not be repeated. The conduct occurred because he was heavily under the influence of alcohol in circumstances where there was a strong suspicion (albeit, one that could not be proved one way or the other) that his drinks at the party had been either spiked with some unknown substance or that unknown persons had poured him drinks containing unusually high amounts of alcoholic spirits. In this respect the Commissioner seems to conclude that Mr McDonald knowingly participated in excessive consumption of alcohol on the day in question and impliedly rejects the suggestion of any untoward conduct by others, resulting in his alcohol "overdose". The evidence for Mr McDonald's actual level of drinking is, however, sparse as there was no wider investigation of his consumption at the Club or at the house. Mr McDonald's own evidence of consumption over many hours does not suggest a level that would return the high range PCA result later found by the police. Dr Young drew attention to that fact in her report. The Commissioner appears, therefore, to have assumed that Mr McDonald intentionally engaged in binge drinking or excessive drinking on this day because of the PCA result. There is a difference between intentionally drinking alcohol and intentionally drinking to excess. The Commissioner may have been influenced in taking this view by the fact that Mr McDonald had admitted binge drinking in the past. What could not be avoided was the extraordinary state in which Mr McDonald was found with obscene writing and drawings over his body. There is something sinister in the carrying out of this act and the publication of the photograph showing Mr McDonald passed out and so appalling displayed. The Commissioner should not have so readily dismissed the idea that something sinister or untoward had happened to Mr McDonald while at the house. 109It was argued for Mr McDonald that, by entering an early plea of guilty in the Local Court, he had demonstrated his remorse and a degree of acceptance of responsibility. In his Reasons the Commissioner acknowledged that, in his Response, Mr McDonald had expressed and reiterated his "extreme remorse" for his actions and had acknowledged that his behaviour was unacceptable and that he felt "ashamed" by his conduct on the night and how it was contrary to his general good behaviour and character. It was suggested that, by these statements, the Commissioner did not raise an issue about Mr McDonald's acceptance of responsibility, his contrition and remorse yet those matters were raised against him in submissions before the Commission on review. It was Mr McDonald's case that his removal from the Police Force was harsh, unreasonable and unjust or a combination of all three because dismissal was disproportionate to this one-off offence and would result in serious financial difficulty for Mr McDonald and his family. Importantly, Mr McDonald had not denied the conduct he had engaged in on the night of the incident. 110Although Dr Young's reports refer to the effects of alcohol "overdose" and the likelihood that this had happened to Mr McDonald, the Commissioner failed to deal with this expert opinion and there was no contrary medical opinion tendered in the Commissioner's case. Dr Young stated that, under the effects of alcohol overdose where dangerously large amounts of alcohol had been consumed, it was not unusual for a person to lose consciousness and later to have little or no memory of the events surrounding the consumption of the alcohol. Despite this opinion the Commissioner had expressed the view that Mr McDonald's memory lapse was selective memory that spoke against Mr McDonald's integrity. In the light of Dr Young's first report the Commissioner had no proper basis for this view. 111The Commissioner has not indicated the basis upon which he rejected Dr Young's opinion. It appears that the Commissioner proceeded upon the view that Mr McDonald had a recent history of bad behaviour while under the influence of alcohol and that the conduct that occurred in late January 2009 was a continuation of that bad behaviour. Those two incidents, however, are very different although they both revolve around intoxication. The incident in January 2009 involves other people mixing drinks for Mr McDonald and ultimately Mr McDonald apparently losing consciousness and being subjected to the bizarre behaviour of others who took advantage of his condition to write obscene messages and images over his body. Clearly, the two incidents are distinctly different. On Mr McDonald's evidence of his consumption of alcohol on that day, it does not indicate binge drinking although there was present the possibility that his drinking would put him over the limit: he had taken steps to address that possibility. 112Allied to these matters is the Commissioner's statement that, not long before the January 2009 incident, Mr McDonald had received a Local Area Commander's Warning Notice where his off-duty behaviour involved alcohol and an incident where there was an alleged assault of a security officer. The Warning Notice and the documents regarding the investigation of this off-duty incident, while confirming that Mr McDonald was heavily intoxicated, were otherwise unable to establish that there had been an assault and the alleged assault could not be sustained. In light of those documents it is curious that the Commissioner did not accurately describe the earlier incident and his incorrect reference to an alleged assault may indicate that he was misinformed about this matter and had linked together two very serious incidents occurring not far apart in time but both involving the consumption of excessive alcohol. The first incident, however, did not involve driving under the influence and did not involve extensive abuse of police officers. 113It was submitted on behalf of Mr McDonald that the Commissioner's statement that had he applied to join the New South Wales Police with his current conviction for such a serious PCA offence he would not be accepted, should be rejected. Documents before the Commission produced by the Commissioner showed that the policy in this regard was dated March 2010 and stated that an applicant convicted of a PCA offence would "not normally have their application considered" unless certain specified times had elapsed since the date of the offence. In relation to low range PCA, for the application to be considered, two years was required to elapse between the offence and the application and with high range PCA, ten years was required to elapse between the offence and the application. The policy stated that, in such cases, the applicant would be referred to the Commissioner or a delegated officer for determination. An applicant who had been convicted of two PCA offences would be rejected. The submission effectively challenged the relevance of this new policy to the extent that Mr McDonald had joined the Police Force six years earlier and there were police officers continuing to serve who had recorded PCA convictions. There is force in that submission. 114It had been conceded on behalf of the Commissioner that a number of serving officers in the New South Wales Police had been convicted of offences relating to off-duty driving of a motor vehicle while under the influence of a prescribed concentration of alcohol and that many of those officers remained engaged by the New South Wales Police Service although various forms of disciplinary action were taken. From approximately mid-2008, 25 serving police officers had been convicted of driving while affected by a high range prescribed concentration of alcohol offence and 49 serving police officers had been convicted of driving while affected by mid-range prescribed concentration of alcohol offence. Eight serving police officers had been convicted of driving while affected by a low-range prescribed concentration of alcohol offence. 115These concessions were relied upon by Mr McDonald as demonstrating the Commissioner's view as expressed in the Reasons for Decision, was not an accurate statement of what in fact happened within the Police Service in relation to officers with PCA convictions and further demonstrated unfairness in that the same or similar tolerance was not extended to him. While there is some force in these submissions for Mr McDonald, the circumstances of the other cases are not known. That evidence does support a finding (one that the Commission has previously made on review) that the Commissioner does not follow a nil-tolerance policy and there are circumstances in which a police officer may remain in the Police Service even though found guilty of a serious alcohol related driving or other serious offence. 116On behalf of Mr McDonald, a number of issues were raised concerning the accuracy or appropriateness of observations and findings made by the Commissioner in his Reasons for Decision. The substance of most of those matters has already been referred to and do not require further consideration. Complaint was made that the Commissioner held Mr McDonald fully responsible for all his actions and that no recognition was given to the fact that this conduct, and the issue of integrity raised by aspects of the conduct, all occurred while Mr McDonald was heavily under the influence of alcohol to the point where he suffered from alcohol overdose. This matter appears to be at the core of the issue in this application and will be dealt with further when dealing with the question of whether the discretion to reinstate should be exercised. 117The Commissioner's case in reply again emphasised that, very shortly before the very serious incident took place in late January 2009, Mr McDonald had received a Warning Notice informing him that he would be the subject of disciplinary action, including dismissal, if he continued to engage in unsatisfactory conduct. The incident to which that Warning Notice referred had itself occurred just four months before the major incident. Despite the clear terms of the Warning Notice and with flagrant disregard to it, Mr McDonald was again drinking in a public place and then later in the evening in the company of others when he consumed an excessive amount of alcohol. It was submitted that the earlier Warning Notice compounded the seriousness of the later misconduct. 118The Commissioner's case in reply firmly rejected that Mr McDonald could rely on the extent of his intoxication to avoid his misconduct. The fact was that his excess drinking was the cause of the criminal offence and he had placed himself in that position. The disinhibiting effect of his intoxication did not explain away or excuse the misconduct and the fact was that he engaged in the misconduct. 119Mr McDonald's lack of memory of certain incidents was said to be irrelevant because of his actual conduct. Further, it was submitted that it was open to the Commissioner to form an adverse view of Mr McDonald's alleged lack of memory of the accident and the aftermath involving abuse of fellow police officers in circumstances where he recalled being at Mr Kelly's house, later waking up and seeing writing over his body and forming the opinion that he just had to leave the house. It appeared to be "just too convenient" that thereafter he lost his memory and on that basis the Commissioner was entitled to form the view that the alleged memory loss was selective and spoke of his integrity. These matters are a re-statement of issues already addressed. 120Even if the Commissioner took a different view of this matter it was submitted that the Commissioner's view about selective memory was not determinative of his reasoning. This aspect of the Commissioner's submission is difficult to accept. It does not take into account Mr McDonald's loss of memory as to exactly what happened to him while he was drinking alcohol mixed for him by others and how he came to wake up to find his body covered in obscene markings and pictures. It was the shock of seeing these images that caused him to flee the house. He was obviously highly intoxicated at that point having regard to his later blood alcohol reading and was still observed to be unsteady and obviously drunk some hours later when he was delivered home by police officers. In those circumstances the "selective memory" finding going directly to Mr McDonald's integrity was unfair to Mr McDonald and amounted to a harsh conclusion to reach on the important question of his integrity. 121Dr Young's evidence, supporting the possibility of alcohol overdose and memory blackouts while under the influence of this dangerously high level of alcohol as found in Mr McDonald's system, was never directly or indirectly challenged by the Commissioner or in the evidence before this Commission on Review. Dr Young's experience with Government services, including New South Wales Police, probation and parole and youth drug and alcohol issues, placed her in a position to comment on the stresses that lead to binge drinking and the effect of high levels of alcohol on the mind and the body. Her qualifications to make those professional observations were not challenged but Dr Young was cross-examined on the basis that she was reliant upon the detail and background given to her by Mr McDonald and what he alleged he recalled. The submission proceeded on the basis that, at the highest, Dr Young's evidence was no more than a person, affected by alcohol intoxication, may experience amongst other things, memory loss and she could not say what was in fact his memory on the night. Additionally, it was submitted that Dr Young's therapy concentrated on Mr McDonald's experience of his trauma, what he recalled or chose to recall but not what actually happened. 122These are strange submissions in relation to an expert witness. It is almost always the case that the expert witness is not an eye-witness to the events about which the opinion is sought: the expert witness proceeds upon assumptions asked to be accepted or, where medical conditions are involved, express an opinion based upon what the patient is able to tell the expert about their condition and circumstances. If the assumed basis or the history given by a patient is shown to be inaccurate in a material way and affects the very basis upon which the opinion is formed, then a tribunal is usually unable to proceed with confidence upon the expert opinion so expressed. That is not the position in relation to Dr Young's evidence. 123Some doubt then appears to be cast upon Mr McDonald's acceptance of responsibility for the PCA offence in circumstances where it is observed that he had little choice having regard to the compelling evidence against him. The applicant could not explain away his misconduct because of the extent of his inebriation - he engaged in the misconduct and was responsible for his actions whether intoxicated or not. He drank too much and he was responsible for whatever were the consequences of his conduct. He could not explain away the seriousness of the misconduct by the extent of his memory of it and he had to meet the fact of what was proved to be the extent and nature of his conduct. It was then submitted that Mr McDonald made speculative claims about what happened at the house in that his drinks may have been spiked and he may have been assaulted but has no memory of them and had not made any attempt to find out whether the theories were true by speaking to two people, at least, whom he knew were present at the house. It was suggested that these were serious criminal allegations yet he made no complaint to the police about them. Further, it was submitted that this approach demonstrated a consistent pattern throughout the investigation and during the course of the hearing in the Commission of attempting to explain away his own conduct and that pattern placed doubt on the degree and genuiness of the contrition expressed by Mr McDonald. 124This submission is also difficult to accept. No mention is made of Mr McDonald's promptly entering a guilty plea in the Local Court and the steps he then took to address his drinking problems, including consultations and counselling to help him understand the way in which he acted during this incident. Mr McDonald could not be criticised for not conducting his own investigation of the matters that occurred in the house when he had been directed to stay away from the house and those who attended the party. In addition, there is no substance in the criticism that he made no formal complaint to police when he had provided them with as much as he could remember about the night in circumstances that showed that he had been appalling abused by the extraordinary drawings all over his body. The picture of those drawings together with the picture of the bruise on his hip, as earlier observed, might have prompted the police to act on that information and investigate the incident but that did not occur. Having regard to these matters it cannot be accepted that the evidence demonstrates a consistent pattern of attempting to explain away his own serious misconduct that calls into question the degree and genuiness of his expressed contrition. 125The genuineness of Mr McDonald's contrition was also attacked on another basis, namely, the fact that he drew attention to inconsistencies in the statements of police officers who had reported the extent of his conduct at the scene of the accident and at the Kiama Police Station. This matter has already been referred to in paras [102] and [103] and for reasons there expressed, this criticism is not justified. 126It is then necessary to consider, pursuant to the provisions of s 181F(3), the interests of the applicant and the public interest (taken to include the interests of maintaining the integrity of the New South Wales Police and the fact that the Commissioner made the order pursuant to s 181D(1). 127In relation to the interests of the officer, Mr McDonald has a good working record except for two episodes involving excessive consumption of alcohol that occurred in close proximity. Mr McDonald has now been out of the Police Service for approximately 15 months and has been able to obtain only modestly paid employment. He has incurred the additional costs of repairing his own vehicle and the vehicle he damaged as well as legal costs associated with his appearance in the Local Court and on appeal. These combined costs were said to be in the tens of thousands of dollars. He has clearly suffered a severe and ongoing financial loss. The uncontested evidence was that, although Mrs McDonald had been able to increase her hours, the family was suffering financial strains to the point where there was a real possibility of them losing their home. That evidence was not contested. The evidence also demonstrates that Mr McDonald has addressed his problems with binge drinking and excessive consumption of alcohol and appears to be managing a new lifestyle without resort to alcohol as a support mechanism. His medical advice is that he is unlikely to abuse alcohol in the future. He has taken responsibility for his circumstances brought about by abuse of alcohol. He is a well-trained police officer who obtained high marks in graduating and is supported by fellow officers to return to work. He therefore has a potential to positively contribute again to the Police Service. These matters all speak in favour of Mr McDonald. 128In considering the public interest and the fact that the Commissioner has stated that he has lost confidence in Mr McDonald, it has been stated on numerous occasions, including at Full Bench level (eg Commissioner of Police v Collins [2008] 180 IR 191 at [53]) that neither of the matters required to be considered under s 181F(3) is to be accorded primacy and that both aspects are of equal significance in exercising the Commission's discretion. The Court of Appeal in Commissioner of Police v Industrial Relations Commission (2009) 185 IR 458 at [77] was prompted to note that each matter is to be given "considerable weight". There is, however, an undoubted public interest in ensuring the integrity of the Police Service. Police officers are expected not only to enforce the law in the community but by that very role, it is important that they be seen to obey and uphold the law. As noted by Boland J in Burrows and anor v Commissioner for Police [2001] NSWIRComm 333, the Commissioner has an important statutory role in managing the Police Service: his determination, however, is not determinative of a review. Equally, the public interest does not require a perfect world nor does it ignore concepts of fairness. The public interest is not to be taken to be ill-informed or easily offended - it would accept the concept of a "fair go" all round and providing a second chance for those so deserving while expecting dismissal for those who lack sufficient redeeming features. 129While there is a public interest in continuing in service a well-trained and hitherto well-performed police officer, against those positives must be balanced the nature of Mr McDonald's conduct, especially in January 2009. The public interest would also require that Mr McDonald bear a significant penalty for his conduct and that would tell against a reinstatement with full back pay for the period that he has been outside of the Police Service. The evidence shows that the Police Service does not apply a nil tolerance approach to police officers who are in breach of the law: in relation to low to high range PCA offences there are a number of officers who have remained in the Police Service. Indeed, the Commission, including on appeal, has reinstated an officer who has had more than one PCA offence (see Commissioner of Police v Dobie (2006) 157 IR 44 ). A wide variety of otherwise inappropriate behaviour for a police officer has not prevented their return to service (eg Burrows re dissemination of offensive pornographic material on the police system; Commissioner of Police v Sewell ( 2008) 180 IR 91 re drunkenness and multiple instances of sexual harassment; Formston v Police [2006] NSWIRComm 88 re off-duty drunken behaviour, verbal altercations and assault on a number of occasions; Lawrance v Commissioner for Police re repeated offensive display of body piercing of private parts; Wells v Commissioner of Police (2000) 100 IR 106 re assault of young person attending police station; Flanagan v Commissioner of Police (2008) 180 IR 85 (re off-duty in hotel, two counts of common assault). 130These cases underline the balancing exercise that must be conducted on a review pursuant to s 181E and how that review may differ from the processes undertaken by the Commissioner pursuant to s 181D. On review the Commission continues to apply the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231 at 233 where his Honour referred to the need to consider the surrounding circumstances such that, while dismissal may be justified legally, it may, nevertheless, be harsh and reinstatement ordered: it is always open to the Commission to examine the severity of a dismissal. Having regard to Dr Young's reports and her confidence that Mr McDonald could return to police duties with a low risk of returning to alcohol abuse and having regard to the support of other officers and in particular those who have worked closely with him, the public interest favours retaining Mr McDonald. 131As the arguments developed before the Commission on review, it appeared to be a critical part of the Commissioner's case that Mr McDonald had not taken responsibility for his actions and, indeed, had taken steps to avoid such a course and had sought to minimise his conduct by relying on his state of inebriation. In light of the above analysis of the evidence, the Commission is unable to accept that Mr McDonald has not taken responsibility for his actions and was not genuine in his remorse and contrition. He entered an early plea in the Local Court and in his Response he apologised profusely on a number of occasions to the officers who had to deal with him and his bad conduct on the night of the accident. The most significant aspect of his case is the way in which he has pursued professional assistance through drug and alcohol counsellors and ultimately Dr Young in order to understand what happened on the night and to address his slide into binge drinking: through some difficulties he has, over a period of some 20 months, adhered to counselling arrangements and has made a real effort to change his drinking habits and his general lifestyle so that he will not again rely on alcohol to overcome life's stresses. 132It is also highly significant that two serving officers who have worked closely with him, including in a supervisory role, have supported his return to duties as a police officer. Sergeant Owen spoke of fellow officers "missing" Mr McDonald and regarding him "highly". While Mr Sage's evidence was not that of a serving officer, he had a long career as a police officer and as a family friend: he supported Mr McDonald's return to the Police Service. Perhaps more significantly in his case, Mr Sage had witnessed Mr McDonald's usual practice of making arrangements not to drive his car when it was anticipated that he would be likely to indulge in drinking alcohol that may have placed him over the limit. The evidence of Senior Constable Boiano confirmed that approach. Mr McDonald spoke of making those arrangements again when he went to Mr Kelly's house when he sought permission to leave his vehicle in the driveway. The significance of that evidence is that it suggests that, when Mr McDonald awoke or came to after blacking out, the discovery of the obscene writing and drawings on his body, together with his high level of intoxication, understandably led him to believe that he had to quickly leave the premises. It is likely that his fear and concern at that time, together with his level of intoxication, caused him to drive his vehicle when he would otherwise not have done so. 133The significance of these matters has been seriously underestimated by the Commissioner in concluding that Mr McDonald's conduct required him to be removed from the Police Service. There is no doubt that Mr McDonald was developing a severe drinking problem and it is a great pity that, at the time the Warning Notice was issued, he was not then referred for counselling rather than being merely informed of the availability of counselling and welfare services. Excessive drinking by police officers, gauged by the number of times that factor arises in s 181D cases heard in this Commission, suggests that it is a problem well-known to the Police Service and perhaps requires different approaches to be adopted before officers descend into behaviour that brings them under consideration by the Commissioner. Having regard to his employment record and his driving record and the evidence as to his care in not driving when consuming alcohol, the January 2009 incident does appear to be an aberration. As a matter of commonsense and fairness, it could not be excluded from consideration that Mr McDonald was provided with drinks mixed by others containing a very high level of alcohol that reduced him to a stupor and allowed him to be so obscenely abused. It is also to be observed that, having regard to the level of drinking he said he was undertaking on the day, Dr Young would not conclude that this episode represented conscious binge drinking. 134As is the usual experience with s 181D action, the considerations that need to be weighed in deciding whether to exercise the discretion of reinstatement often point in very different directions - this case is no exception. In this exercise the Commission has to evaluate the existence of mitigating circumstances. In the present case, Mr McDonald satisfies at least four and arguably all five of the matters of mitigation referred to in Lawrance : namely, good previous service record and character; an absence of likelihood of re-offending; acceptance of responsibility and remorse by the officer; and, the consequences of removal. Arguably, in this case the circumstances of the drink driving charge and the treatment of other officers carries with it a stigma that may attach to the circumstances surrounding the removal. The Commissioner's case hinges largely on intentional drunken conduct against a background of breaches of the criminal law and Codes of Police conduct, but that is not the whole story. 135The Commissioner also raised, in submissions, the argument that reinstatement was impracticable but there was no evidence that a position was not available within the Police Service or that other officers were justifiably opposed to working with Mr McDonald - indeed, the evidence regarding this last matter is to the contrary. This is not a small employer or an employment relationship involving close personal contact with the Commissioner. Further, as stated in Oswald v NSW Police Service (1999) 90 IR 42 at 67-68, if reluctance to re-employ or accept reinstatement was said to destroy the relationship of trust and confidence between an employer and an employee such as to make reinstatement impracticable then an employee, accused of wrongdoing, who succeeds in making out a case of harshness under the Act, would be denied access to the primary remedy provided by the legislation. 136There are, nevertheless, a number of aspects of the Reasons provided by the Commissioner that indicate that Mr McDonald's case was not fully considered, especially in relation to Dr Young's evidence. These matters are not repeated but they are all addressed in the context of a full merit review and are not confined to identifying errors of procedural fairness. Amongst many matters, Mr McDonald was treated harshly in the application of standards to him that might apply to persons applying to join the Police Service now, and even then the Commissioner somewhat overstated those standards. The Commissioner was moved to state that he would not tolerate misconduct caused by binge drinking or drink driving when the evidence demonstrated that officers found guilty of the entire range of drink driving charges, in significant numbers, had been allowed to continue their employment as police officers. Ultimately, it was harsh to remove Mr McDonald from the Police Service without fully weighing the unusual circumstances that led to Mr McDonald being in such an intoxicated state, including the medical evidence of Dr Young, the support of serving officers, his attention to rehabilitation and his remorse. 137These matters have brought Mr McDonald to a vital point in his life: he stands on the precipice of not only losing the job that he says he loves but also stands to lose his home and thereby place in jeopardy his relationship with his family. By dint of his own efforts, the support of his family and the assistance provided by the Drug and Alcohol counsellors and Dr Young, he has drawn back from the precipice and is deserving of a chance to redeem himself in the eyes of the Police Service by returning to duty and demonstrating his ability to again contribute at a high level. His conduct, however, although occurring in this curious context of severe inebriation, cannot be ignored nor can it be adequately addressed by processes available under s 173 of the Police Act . Whatever other steps the Commissioner wishes to take, Mr McDonald must bear the responsibility of his actions such that it would be inappropriate to order reinstatement with full back pay for the period he has been out of the Police Service notwithstanding the considerable financial loss he has already endured. He should be reinstated in his employment as a Senior Constable with continuity of service on the condition that he continue to be monitored by Dr Young for a period of twelve months with Dr Young to provide progress reports on a quarterly basis to the Commissioner of Police. Mr McDonald is also to undertake any other course of alcohol rehabilitation reasonably required of him by the Commissioner. 138While it is the intention of the Commission that Mr McDonald be returned to paid employment as a police officer as soon as possible, there are, undoubtedly, matters that need to be addressed to ensure that he is suitably retrained to take up duties and the parties should discuss the steps necessary to be taken to allow the resumption of full duties. In that regard, the parties are directed to have discussions as to the terms of Orders that appropriately deal with these matters and that reflect these reasons for decision. The Court expects those discussions to take place within seven days and if the Orders are agreed to, they will be endorsed by the Commission and to the extent that there is any disagreement, the Commission will hear briefly from the parties at that time. For that purpose the matter will be listed for the making of Orders and the hearing of any necessary argument on Wednesday, 30 March 2011 at 9.45 am. If the parties notify my Associate at an earlier time that they have reached agreement the Commission will make the necessary Orders in chambers without calling upon the parties to appear again. Amendments 24 March 2011 - Incorrect Counsel details against 'Representation' in coversheet Amended paragraphs: Coversheet, Representation - correction to Counsel 24 March 2011 - Corrected name of respondent in title Amended paragraphs: Coversheet, change in 'Medium Neutral Citation' title 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. Decision last updated: 24 March 2011