Industrial Relations Commission New South Wales Medium Neutral Citation: Walsh v Commissioner of Police [2011] NSWIRComm 26 Hearing dates: 14 - 15 December 2010, 22 February 2011, 24 February 2011 Decision date: 24 March 2011 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: Application dismissed. Catchwords: Removal of police officer - review of order - whether removal harsh unreasonable or unjust - applicant admitted engaging in misconduct - use of anabolic steroids - failure of applicant to report other officers using steroids - investigation by the Police Integrity Commission - aspects of applicant's evidence in the review proceedings inconsistent with evidence given to the PIC - removal not harsh unreasonable or unjust - application dismissed. Legislation Cited: Poisons and Therapeutic Goods Act 1966 Police Act 1990 Poisons and Therapeutic Goods Regulation 2002 Police Regulation 2000 Police Regulation 2008 Cases Cited: Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 Commissioner of Police v Hugh Gerard Brennan [2008] NSWIRComm 52; (2008) 172 IR 56 Commissioner of Police v Sewell [2008] NSWIRComm 147; (2008) 180 IR 91 Flanagan v Commissioner of Police; [2008] NSWIRComm 138; (2008) 180 IR 85 Hosemans v Commissioner of Police [2004] NSWIRComm 285; (2004) 138 IR 159 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 Category: Principal judgment Parties: Matthew Walsh (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: SOLICITORS/ORGANISATIONS: Police Association of New South Wales (Applicant) Henry Davis York Lawyers (Respondent) APPEARANCES: Mr A Howell solicitor (Applicant) Mr J Murphy of counsel (Respondent) File Number(s): IRC 532 of 2010 DECISION 1Mr Matthew Walsh ("the applicant") served in the New South Wales Police Force from 26 August 2005, until he was removed by order of the Commissioner of Police ("the respondent") on 24 June 2010. 2Applying the provisions of s 181E of the Police Act 1990 ("the Police Act "), the applicant seeks an order reinstating him to the New South Wales Police Force and the payment of wages lost over the period since his removal. 3The applicant had reached the rank of Constable. In his Statement of Reasons attached to the s 181D Order, the respondent cited five reasons for the loss of confidence in the applicant. Grounds (i), (ii) and (iii) were admitted by the applicant. The respondent did not proceed with grounds (iv) and (v). The grounds admitted by the applicant were: (i) you improperly used the steroid Ropel Liquid Testosterone, through injection, on a series of occasions from March 2008 to the end of April or early May 2008; (ii) you organised with Senior Constable Nathan McCulloch in about mid May 2008 to purchase other steroids (whether or not that transaction was actually completed); (iii) you failed to report your knowledge that Senior Constable Nathan McCulloch had: (a) repeatedly and improperly used steroids in your presence; (b) improperly imported steroids from Thailand; (c) improperly obtained steroids from other persons; (d) told you that he had improperly injected other persons with steroids; (e) you failed to report your knowledge that Senior Constable Nathan McCulloch and Senior Constable Whitton had discussed the possibility of improperly obtaining steroids from Mr Wilson (and that Senior Constable Whitton was in a relationship with a person whom you knew, or strongly suspected, was involved with steroids); (f) you failed to report that you were in possession of information which might have indicated to you that a substantial number of other persons (being both police officers and civilians) may have been involved in the improper use or supply of steroids; (g) knew, or at least strongly suspected, that Mr Hottes was involved in steroid use or supply (in circumstances where you have admitted that you had at least an acquaintanceship with him); (h) knew, or at least strongly suspected, that Mr Wilson was involved with steroids; (i) had been told that Senior Constable Todd Pascoe had used steroids in the past (regardless of whether that information was true); (j) had been told that " REIDY ", an officer of the NSW Police Force, had used steroids (regardless of whether that information was true); (k) had been told that a Queensland police officer, Adam Pascoe, had used steroids (regardless of whether it was true in relation to recent use); and (l) had been told by Mr Francis that he had used steroids. 4This judgment therefore deals with whether the respondent's decision to remove the applicant from the NSW Police Force, in all the circumstances, was harsh, unjust or unreasonable. For the reasons that follow, I find that having regard to the totality of the applicant's conduct, including his evidence during the review proceedings, it represented conduct inimical to his continual service in the NSW Police Force: see Commissioner of Police v Hugh Gerard Brennan [2008] NSWIRComm 52; (2008) 172 IR 56. Relevant statutory provisions and principles 5The respondent is empowered by s 181D(1) of the Police Act to remove a police officer from the NSW Police Force. Section 181D(1) provides: The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. 6The nature of the process and review provided by Div 1C of the Police Act of a decision of the Commissioner of Police by the Industrial Relations Commission is now well settled: see Hosemans v Commissioner of Police [2004] NSWIRComm 285; (2004) 138 IR 159; Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44; Flanagan v Commissioner of Police [2008] NSWIRComm 138; (2008) 180 IR 85 at [21] - [22]; Commissioner of Police v Sewell [2008] NSWIRComm 147; (2008) 180 IR 91; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420; Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363. In the matter of Hosemans v Commissioner of Police (at [134]), the Full Bench stated that in undertaking a review the correct approach is that the Commission is "to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted." 7Section 181F(1) requires me to consider three matters. It provides: In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. 8Section 181F(2) provides: The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 9Section 181F(3) provides: Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 10Mr A Howell, solicitor, appeared for the applicant and Mr J Murphy of counsel, appeared for the respondent in the review proceedings. In this decision, Senior Constable Nathan McCulloch and Senior Constable Elisa McCulloch are referred to as Mr McCulloch, Mrs McCulloch or Mr and Mrs McCulloch. Senior Constable Terri Whitton is referred to as Ms Whitton. The applicant 11The applicant is aged 27 years and is in a long term relationship. After graduating from the Goulburn Police Academy in August 2005, the applicant was assigned to Tamworth Police Station where he performed uniform, plain clothes, Operational Support Group, and surveillance duties. He has received two complimentary remarks in respect of his contribution to a particular operation in Tamworth into an incident that he investigated. 12The applicant listed the courses that he has undertaken whilst a member of the NSW Police Force. He also set out duty-related injuries that he has received which included a broken right hand suffered whilst effecting an arrest. Although the applicant said that he had suffered psychological harm as a result of attending a number of traumatic incidents, he has not submitted any claims in respect of this injury. 13In respect of the three allegations, the applicant in his response to the s 181D Notice upon which the Commissioner based his decision to terminate, stated: Allegation 1 I agree with Allegation 1. When I gave evidence at the Police Integrity Commission (hereafter PIC) I admitted that I had used steroids and I had done so to aid in my rehabilitation in relation to an injury I was suffering to my left knee. Allegation 2 I agree that during the telephone conversation between myself and Senior Constable McCulloch I agreed to purchase some steroids with him. However I later changed my mind and I did not go ahead with it because I knew it was the wrong thing to do. Allegation 3 (i) In relation to the five matters concerning Senior Constable Nathan McCulloch and the matter involving Senior Constable Whitton and the man Wilson, I accept that I failed to report the matters referred to in Allegation 3 that relate to them. (ii) I can offer no explanation for failing to report the matters other than I realised that my own conduct was unacceptable and I was fearful of reporting the conduct of McCulloch and Whitton because I knew it would draw attention to myself. (iii) In relation to the remaining matters listed in Allegation 3, I respond as follows: a. I had no direct knowledge of Mr Hottes' use of steroids, only what I was told by Senior Constable McCulloch. I admit that I did not report the information received from Senior Constable McCulloch. b. I had no direct knowledge of Mr Ben Wilson's use of steroids. I had only heard rumours that he used steroids, and I did not report those rumours. c. Senior Constable McCulloch told me that Todd and Adam Pascoe used steroids a number of years ago. I did not report this information as I received it from Senior Constable McCulloch, and their use was said to have occurred years previously. d. Senior Constable McCulloch did tell me that Anthony Reid (who is not a NSW Police Officer) had used steroids in the past. I admit that I did not report this information. e. I admit that Ben Francis told me that he used steroids. However he said it to me in the context of a joke, while doing an impression of Arnold Schwarzenegger. I said this in my evidence at the PIC (transcript page 28; 4/12/08). Evidence in the review 14The applicant gave evidence and was cross-examined. 15The applicant, in a statement filed in these proceedings, stated that on 4 December 2008, he was called to give evidence at the Police Integrity Commission ("PIC") in relation to "Operation Oklahoma", which was an inquiry into the possible steroid use, and other associated misconduct by former NSW Police Officer, Mr McCulloch. He stated that he first met Mr McCulloch at the end of 2005 when he became one of his field training officers, his "buddy officer". This was during the applicant's probationary period. Mr McCulloch was a senior officer to the applicant and took [the applicant] "under his wing". In approximately early 2006, they began socialising with each other outside of work. They worked together on many occasions. 16The applicant provided information to the PIC that he had knowledge of Mr McCulloch's use of steroids and that he himself had used steroids, provided and administered by Mr McCulloch. 17The applicant says that the evidence he gave to the PIC was truthful. After giving his evidence during the PIC proceedings, he provided a number of further statements to both the PIC and the NSW Police Force to assist both agencies in their ongoing investigations. He provided an undertaking that he would give evidence for the prosecution in any subsequent court proceeding, if required. 18In addition to his assistance to Operation Oklahoma, the applicant also provided the PIC and the NSW Police Force with information into matters unrelated to Operation Oklahoma. This related to two police officers and what the applicant considered to be improper associations. 19On 24 May 2010, Mr A Nattress, a PIC Assistant Commissioner, provided Detective Superintendent Michael Fitzgerald of the Professional Standards Command NSW Police Force ("PSC"), with a "letter of comfort". This letter confirmed that the applicant had assisted the PIC and the NSW Police Force by participating in interviews and providing statements for use in Police and PIC prosecutions if required. A copy of the letter was annexed to the statement. 20The applicant stated that his co-operation with the PIC and the NSW Police Force, was due to the fact that he was remorseful and contrite for his actions. It was an indication of his realisation that his involvement with Mr McCulloch, and steroids generally, was a foolish and serious lapse in judgment. 21The applicant stated that he wanted to assist the authorities as much as possible to make amends for his conduct and not because he was trying to avoid being prosecuted. He said he was aware that he was unable to be prosecuted in any event, but chose to assist the PIC and NSW Police to make amends for his behaviour and demonstrate that he was remorseful in respect of his conduct. He stated that he was recently contacted by Mr V Russell, a PIC Investigator, who advised that he would probably be subpoenaed to give evidence in criminal proceedings arising out of Operation Oklahoma. 22The applicant stated that in respect of his conduct, he had always been interested in weight training and personal fitness. He said he had been weight training since he was 16 years old and currently trains five times per week. Prior to his involvement with Mr McCulloch, he had a very general knowledge of steroids from his fitness studies through TAFE and from general discussions over the years with various people at his gym. 23The applicant said he first became aware of Mr McCulloch's involvement in the use of steroids shortly after he injured his knee in March 2008. He said that he spoke to Mr McCulloch about his injury and that Mr McCulloch suggested that steroids would help his knee heal quickly so he could participate in an upcoming rugby league tournament. The tournament involved teams made up of New South Wales police officers. 24The applicant stated that he stopped taking steroids after about six weeks. He acknowledged that he had discussed purchasing a second lot of steroids with Mr McCulloch. However, he said he changed his mind and did not go ahead with the purchase because he knew it was the wrong thing to do. The applicant said that he knew he should not have taken steroids but was looking for a way to quickly heal his knee injury and to avoid another major operation. He said he thought about it for some time before he actually took the steroids because he knew it was wrong. He said he had not taken steroids before and would not have considered it but for his knee injury. He said if he were reinstated he would never again consider using anabolic steroids for any reason. 25The applicant said that he had no excuse for not reporting the misconduct of Mr McCulloch and the other matters raised in Allegation 3 of the s 181D Order. He stated that he could offer no explanation other than that he realised his own conduct was unacceptable and was fearful of reporting the misconduct of others because he knew he would draw attention to himself. He said he would never again let himself be compromised and if he ever again became aware of police misconduct, he would take the appropriate action and report it. 26The applicant stated that prior to being served with the s 181D Order removing him, he had been undertaking approved secondary employment for Challenge Disabilities Services ("Challenge"). He has continued working for Challenge since his removal, where he assists persons with disabilities to obtain suitable employment. He currently earns $38,907 per annum at Challenge. This is a difference of $23,912 to what he was earning as a Constable. He said when he started working for Challenge, while still in the NSW Police Force, he did so not for the financial reward, but for the personal reward in assisting people with disabilities. 27Notwithstanding his employment with Challenge, he said that his removal from the NSW Police Force had placed an enormous strain on his financial circumstances by reducing his income substantially. He has been in a relationship for over four years and has purchased a home with his partner. They have a mortgage of $295,000. They do not have any children. Since his dismissal, servicing the mortgage has become more difficult. His general practitioner referred the applicant to a psychologist after he was diagnosed as suffering from stress. He said he consulted the psychologist once at a cost of $110, however, he could not afford to continue to have ongoing treatment and has not returned. 28The applicant said that the loss of his career as a police officer has had a devastating affect on him, particularly also due to the stigma attached to steroids. He said living with this stigma has been more difficult in a country town. 29The applicant said that he loved his job as a police officer and dearly wished to continue in this career. He said that he had made a stupid mistake and let himself become compromised. He had not come under notice for conduct or performance prior to this incident. 30In about early 2008, when Operation Oklahoma commenced, various relevant telephone intercepts were lawfully obtained as part of the Operation. The relevant telephone intercept records are detailed below. 31Intercept records show that on 10 March 2008, the applicant had a telephone conversation with Mr McCulloch. During the conversation, the applicant noted that he had torn a muscle in his leg and strained his cruciate ligament. He asked Mr McCulloch, "Does that oil fix that shit up or not?" Mr McCulloch replied that it worked "real good". The applicant gave evidence in the review proceedings that he had continued to train right through when he was injured and during the rehabilitation. He said that the steroids were "just simply in conjunction with that training; the training wasn't anything extra." When asked by Mr Murphy in cross-examination, "But you expected that as a result of taking steroids you would put on greater muscle mass than just weight training without the use of steroids?", the applicant replied, "Yes, Nathan told me it would help put on weight." 32A further telephone intercept showed that on 11 March 2008, the applicant had a further conversation with Mr McCulloch. During this telephone conversation, the applicant is recorded asking, "how much oil have you got left?" and whether it was "f...in' good for cleaning up injuries". There was further discussion about the effect of the substance, during which the applicant asked whether it was going to make him "pass out and shit when I have it, like Reidy?", a reference to an acquaintance of Mr McCulloch. Mr McCulloch then invited the applicant to "come and get" some of the "stuff". The applicant responded that he "couldn't jab myself". Mr McCulloch said that the applicant was a "sook", "worse than Pascoe" and that he had "had to do it to Pascoe", a reference to Senior Constable Todd Pascoe. Mr McCulloch then said that "Pascoe" had only had "water based stuff". The applicant is recorded as asking "so this shit's heavy shit isn't it?", to which Mr McCulloch responded that it was "stronger". 33Intercept records show that at 1.04am on 21 March 2008, an SMS text message was exchanged between the applicant and Mr McCulloch in which the applicant asked whether he was "right to come over tomorrow for my medicine". In cross-examination, the applicant confirmed that "medicine" referred to his next steroid injection. At 6.14pm on 21 March 2008, the applicant had a telephone conversation with Mr McCulloch in which the applicant asked when he needed his "next f...in' dose of medicine", to which Mr McCulloch replied "Yesterday". The applicant then made a comment about thinking that he needed it "every f...in' four days or something", with Mr McCulloch stating that it should occur every three days. 34Intercept records show that on 2 April 2008, the applicant had a further telephone discussion with Mr McCulloch, during which there was apparently some discussion about the alleged use of steroids by other officers involved in a police rugby game. Earlier in the call, the applicant discussed a practical "joke" in which some other unnamed person involved in a police football game pretended that the applicant was required to participate in a random urine check for steroids. He said his "heart was pumpin'" and he "was thinking, f...k". 35Intercept records show that on 23 April 2008, the applicant and Mr McCulloch had a further telephone conversation in which Mr McCulloch referred to having "HGH". He then said it was "all kosher" as "Customs even opened" the package. As the conversation continued, the applicant and Mr McCulloch referred to taking two of the tablets a day, "like a supplement". Mr McCulloch then noted that on the receipt "they sent them in as perfume". During cross-examination, when asked by Mr Murphy whether the term "perfume" referred to the steroids sourced through the Internet, the applicant answered, "I'm not sure. We ended up using the term 'perfume'; it covered steroids and it also covered legal supplements." 36Intercept records show that on 3 May 2008, the applicant and Mr McCulloch had a further conversation during which Mr McCulloch referred to having "got onto some gear" called "Supertest" which is "four different types in one". The applicant then asked if "Jase" was getting the "Deca", and Mr McCulloch said that Jase was going to bring it around and show him the bottle. The applicant then asked about the price for "Deca". Mr McCulloch stated that the price was a $110 for ten millilitres. Mr McCulloch suggested that the applicant should get some, however the applicant declined because he did not want to "mix all the c...s up". 37Intercept records show another conversation between the applicant and Mr McCulloch on 13 May 2008. The applicant referred to a person as "Ling Ling" (now said by the applicant to be a reference to Senior Constable Troy Rowland) as a "loose lipped c..t" as he had been "skiting off about the f...ing perfume". During cross-examination, the applicant said the term "perfume" used in that conversation was in reference to a herbal supplement. The applicant said he might "get some of them c..ts too". The applicant then said that an unnamed friend had "got away with it" for a year, at which point Mr McCulloch suggested that "it's pretty, pretty pricey isn't it, it's like three grand or something". Mr McCulloch said that he might have a "squiz into it", at which point the applicant asked whether "you gotta order them over the net haven't ya?" The conversation then continued as follows: App: "You ordered the perfume over the net didn't ya?" NM: "Yeah." App: "I haven't got the internet, I'll, I'll just give you the f...in' money." NM: "Yeah if you want some, just f...in' let me know." App: "Yeah. Yeah, how much does it cost, two hundred isn't it?" NM: "Yeah." App: "I'll um, I'll give you the paperwork so you can order the perfume." NM: - Laughs - "Righto. Actually I've got um, I've got a, got a little f...in' jar of it here if you, like one unopened jar of it here, if you want to try it?" 38Mr McCulloch then invited the applicant to "drop up whenever" to get the substance under discussion. 39Intercept records show that at 6.19pm on 15 May 2008, Mr McCulloch had a telephone conversation with Mr Ben Wilson (the then partner of Ms Terri Whitton). Mr McCulloch said that he had been talking to "Sharrell" (apparently a reference to Ms Whitton), and said that he "wanted to get um, a couple of prices on things". At 6.55pm, the applicant and Mr McCulloch had a further conversation. Mr McCulloch said that he had obtained "that bot-bot". The applicant appeared to ask "[b]ot-bot?" When told "Jay's bot-bot", the applicant replied "[o]h right...that perfume we were talking about", and asked "what's the damage on the paperwork" to which Mr McCulloch said he did not know. Mr McCulloch then said he was also going to order some of the same substance from a different source which would be $440 for four. 40Intercept records show that at 1.27am on 17 May 2008, the applicant and Mr McCulloch had a further conversation. The applicant stated that he "got some more Intel" and "[a]pparently the f...in' phones at the station are being f..n' tapped by STIB". The applicant then stated, "Yeah so um, as far as like with, with Whitton making that f...in' phone call the other day, that's not f...in' very good." 41Intercept records show that on 22 July 2008, Mr McCulloch apparently had a telephone conversation with his wife, Mrs McCulloch. It appears that the applicant was present with Mrs McCulloch. The following was recorded: EM: "... Walshie's bringing me stuff out like," NM: "Yeah (ui) f...in' (ui)." EM: "[D]reaming." - Aside - App: "Is that Nathie?" EM: "Yes." App: "Tell him I ordered some stuff on the Internet and (ui) show him." EM: "He ordered some stuff off the internet, he'll have to show you." - Aside - App: "I got it today." EM: "He got it today." - Aside - EM: "What did you get?" App: "I can't tell you." EM: "He can't tell me. I don't think we want to talk about it over the phone." ("ui" means the words were inaudible) 42At about 7.00am on 29 July 2008, officers from the Australian Customs Service and the NSW Police Force executed a search warrant at the home of Mr and Mrs McCulloch. Very shortly prior to the search being executed, Mr McCulloch was informed of the intended search by Superintendent Pheeny, the Local Area Commander, who arranged to give Mr McCulloch a lift home. According to the NSW Police Fact Sheet for Mr McCulloch, he then requested to secure his firearm in the firearm storage area of the police station. After entering the firearm storage area, Mr McCulloch sent Mrs McCulloch an SMS text message. Subsequent inspection of the phone belonging to Mrs McCulloch showed that at about 6.50am, an SMS text message was sent from Mr McCulloch's phone saying "Get the steroids out of the house. Can't talk." 43The applicant's evidence was that it became common knowledge that the text message was sent but that he personally did not know of the SMS text message at the time. He could not recall if it was Mr or Mrs McCulloch who made him aware of the text message. Mr Murphy took the applicant to evidence he gave at the PIC where he told the integrity commission that Mrs McCulloch told him that Mr McCulloch had sent her the SMS text message and "she told me she didn't know what he was talking about. She didn't know what he was talking about." 44Approximately 100 tablets of Anadrol were located at the home of Mr and Mrs McCulloch, together with two bottles of the steroid Nandrolin, one bottle of Ropel Liquid Testosterone, and a number of used syringes. On 4 September 2008, Mr and Mrs McCulloch were served with summonses requiring them to give evidence at the PIC on 16 September 2008. Telephone call charge records show that on the evening of 4 September 2008, there was telephone contact between Mrs McCulloch and Ms Whitton, followed by SMS text messages between Ms Whitton and the applicant. Telephone call charge records produced by Telstra Corporation Ltd show that on 8 September 2008, the applicant made a number of apparent attempts to telephone Mr McCulloch, resulting in a conversation at about 1.18pm lasting for two minutes and 27 seconds. There was no telephone intercept transcript to show what was said during this conversation. 45Telephone call charge records show that shortly prior to 8.00am on 16 September 2008, being the day Mr and Mrs McCulloch were required to give evidence at the PIC, the applicant called Mr McCulloch and had a call lasting about 28 seconds. Mrs McCulloch gave evidence to the PIC starting at 9.55am on 16 September 2008. Telephone call charge records show that in the early afternoon on 16 September 2008, Ms Whitton had a number of telephone contacts, including one lasting over nine minutes, with Mrs McCulloch. 46Mr McCulloch gave evidence to the PIC starting at 2.10pm on 16 September 2008. He ultimately made various admissions about his own steroid use and importation. However, he denied that he had ever injected any other person with steroids and denied that he was aware of steroid use by any other police officer. Telephone call charge records show that at about 9.51pm on 16 September 2008, the applicant made an apparent attempt to telephone Mr McCulloch. At some time following 16 September 2008, the applicant had a discussion with Mr and Mrs McCulloch and Ms Whitton at Joe Maguires Pub. 47On 2 December 2008, Ms Whitton gave evidence to the PIC. She made admissions about steroid use by her previous partner, Mr Wilson, and about various conversations she had with Mr McCulloch in which he sought her assistance to obtain steroids from Mr Wilson. Ms Whitton stated that the applicant was present during one such conversation, although she was not sure if he was also to be part of the transaction. 48On 4 December 2008, the applicant gave evidence to the PIC. He admitted that Mr McCulloch had injected him with the steroid "Enanthate" (under the product name "Ropel"). He admitted that he had about 10 injections over approximately 6 weeks from March 2008 to about the end of April 2008. He admitted that he had also seen Mr McCulloch inject steroids. He also admitted that he had spoken to Mr McCulloch about sharing the costs of purchasing steroids. The applicant further said his steroid use occurred prior to receiving training about improper steroid use around June 2008, but admitted he was aware that he might be breaking the law. He said he did not pay any money to Mr McCulloch for steroids. 49The applicant admitted that on 11 March 2008, Mr McCulloch spoke about "special stuff", which he understood to mean the steroid "Stanozol". However, he denied using that steroid. He admitted that on 23 April 2008, Mr McCulloch referred to having imported tablets marked "HGH". He admitted he received one bottle of those tablets, which he consumed, but said that he believed it was legal "pro growth hormone" rather than "human growth hormone" (which he understood to be a type of steroid). He claimed he did not know why the supplier labelled the package as "perfume". He admitted that on 3 May 2008, Mr McCulloch spoke to him about a substance called "Supertest". He said he was not certain as to the nature of that substance, but had an "inkling" it was a steroid. He admitted that during the same call, he asked about the price of "Deca" but said that he did not ultimately obtain that steroid. 50The applicant also admitted that on 13 May 2008, he spoke about "Ling Ling" (being Senior Constable Troy Rowland) "skiting off about perfume". He said that Senior Constable Rowland had been talking about the "pro growth hormone tablets", and not about steroids. He admitted that during the same conversation, he spoke about giving money (or "paperwork") to Mr McCulloch for "perfume", but says this was a reference to the legal "pro growth hormone". During cross-examination, the applicant said the term "perfume" used in the phrase "skiting off about perfume" was in reference to a herbal supplement. In the recording, the applicant and Mr McCulloch then went on to discuss doing a "Brasco on him". In cross-examination, the applicant gave the following evidence: Q: It is another conversation between yourself and Mr McCulloch. I think you have told us Ling Ling is Officer Rowland, is that correct? A: Yes. Q: And you are raising a concern, I suggest, about Officer Rowland skiting off about the perfume. You see that? A: Yes. Q: What did you mean by those words "skiting off about the perfume"? A: That he was talking about the pro-human growth hormone. Q: Well, in what way was he "skiting off" about it? A: He was just asking about the supplement. Q: Well, asking about a supplement is not "skiting off" about it? A: It is how I use the words. Q: Well, they are words deliberately used, aren't they? "Skiting off about the effing perfume". And you were not happy about him doing that, were you? A: No, it would lead to rumours around the station. Q: What, asking you about a herbal supplement is going to lead to rumours around the station? A: Yeah. Q: Is that what you are seriously saying? A: Yeah. Q: And that constitutes "skiting off about the effing perfume"? A: Yes. ... Q: Then McCulloch refers to "doing a certain Brasco on him"? A: Yes. ... Q: And was doing a Donnie Brasco on someone taking him out? A: Yeah, possibly. Q: And all this was over him asking you about herbal supplements that you can get from a health food store? A: Yes. Q: You seriously put that? A: Yes. ... Q: Well, what did that have to do with saying, "I might get some of them items too"? You are not talking about herbal supplements, are you? A: I was talking about the pro-human growth hormone. Q: You say, "Yeah, give them a go", and he talks about someone who was busted for obtaining illegal drugs? A: Yeah. Q: Did you say, "What's that got to do with what we are talking about?" You are talking about herbal supplements, according to what you are telling us now? A: Yeah. Q: He is talking about someone getting caught or not getting caught for a year over illegal drug dealing? A: Yeah. Q: Didn't you think that the those two subject matters didn't quite fit into the same conversation? A: I guess because they both related to ordering things from the Internet. Q: And he then says, "I only, only have to do one or two". Do you see that? A: Yep. Q: What did you understand him to mean when he said that? A: Um, maybe some orders, making orders. Q: Orders for what? What for? A: For the pro-growth hormone. Q: And then you say "yeah", and he says "personal use" and laughs. See that? A: Yep. Q: What did you understand he was talking about when he said "personal use"? A: Yes. Still ordering the pro-growth hormone. Q: This is the benign substance you can get from a health food store? A: I am not sure about health food store, but Internet sites, yeah. Q: It is a herbal substance? A: Yes. Q: The term "personal use" is a term that is used by police relating to the defence that drug offenders quite often raise when they are caught with amounts of illegal drugs, isn't it? "It is for my personal use"? A: Yes. Q: It is not a concept that springs to mind when you are talking about a herbal supplement, is it? A: Well yeah, I haven't heard herbal supplements used in any way of conversation really. Q: You say that's what you are talking about here in this conversation? A: Yep. 51The applicant admitted that on 15 May 2008, Mr McCulloch spoke to him about "Jay's bot-bot". He accepted that this was a reference to the steroid Deca-durabolin ("Deca") being obtained from Mr Jay Hottes, a car salesman who used to work with Mr McCulloch. He also admitted that during the same call, he again spoke about giving money to Mr McCulloch for "perfume". However, he claimed that he could not recall exactly what was being ordered by Mr McCulloch (although apparently conceding that it might have been "Deca" however he "wasn't 100 per cent certain"). He also claimed that he never actually received any product from Mr McCulloch arising out of the 15 May 2008 telephone call. 52The applicant denied ordering steroids through the internet, or importing steroids. He said he had ordered protein powder "No-Xplode" and some tablets called "Tribex" through an internet site called "mrsupplement". He said that these supplements were not anabolic steroids, and that he believed it was legal to possess and import them. The applicant was asked why, during the call on 22 July 2008, he told Mrs McCulloch that he could not tell her what he had ordered. He claimed that he was "mucking around" and denied that he was being careful (although conceding that, at the time, he suspected that the police station telephone being used might have been tapped). 53The applicant initially stated that he could not recall whether he and Mr McCulloch approached Ms Whitton to ask if she could obtain steroids from Mr Wilson. However, after being played intercept records for the call on 17 May 2008, he said as follows: Q. Then further on, you make a reference to Whitton making a phone call "the other day"; right? A. Yes. Q. That's Terri Whitton? A. Yes. Q. Making a phone call to Ben Wilson? A. Yes. Q. About obtaining steroids? A. Yes. Q. For you and Nathan? A. She was making inquiries. Q. Making inquiries about steroids for you and Nathan? A. Not for me on such an extent. I spoke to them about it, but I couldn't go through with it. Q. Spoke to whom about it? A. Nathan. And Terri might have been present, but I can't remember. 54The applicant further said that he was in an "Australian police" football team with Mr Ben Francis, a member of the NSW Police Force, in Perth. He admitted that Mr Francis referred to taking "Deca". However, he claimed he thought the comment was a joke and said he did not actually believe that Mr Francis was taking steroids. 55The applicant admitted that on 11 March 2008, Mr McCulloch had spoken to him about assorted steroid use by "Reidy" (whom he said was an acquaintance in Tamworth whose first name he could not remember). In cross-examination, the applicant confirmed that "Reidy" was a friend of Mr McCulloch, and was not a police officer. He said that he had been told that "Reidy" had felt faint after taking the steroid "Enanthate", but he had never actually seen "Reidy" consume steroids. The applicant also admitted that during the call on 11 March 2008, Mr McCulloch told him that he had administered steroids to Senior Constable Todd Pascoe, and his brother, Adam Pascoe (an officer of Queensland Police also known as "Fridge"). 56In his evidence to the PIC, the applicant admitted that Mr McCulloch had spoken to him to say that he had to attend the PIC about a "week or two" before Mr McCulloch had actually given evidence. He said that Mr McCulloch had told him that, as a result of having to attend the PIC, he thought that the "phones were off". He said that when Mr and Mrs McCulloch were arrested, it became fairly common knowledge around the town of Tamworth. He said that, "probably a couple of days" after Mr McCulloch had attended the PIC, he told the applicant that he had "heard recordings of phone conversations, that it was unpleasant and he couldn't talk further about it". He said he couldn't remember whether he asked Mr McCulloch about the nature of the phone calls which were played to Mr McCulloch during the PIC hearing. However, in his evidence, he made no mention of making phone calls to Mr McCulloch on both the morning and the evening of 16 September 2008. He also made no mention of meeting Mr and Mrs McCulloch and Ms Whitton at Joe Maguires Pub when Mr and Mrs McCulloch's appearances at the PIC were discussed. 57On 6 March 2009, the applicant participated in a Police Complaint Investigation interview. He was asked if there was anything further he could elaborate on that was not given in evidence at the PIC. He said he could not. He was then asked if he was ever present at licensed premises in Tamworth when Mr and Mrs McCulloch discussed their evidence at the PIC. He answered, "One time I was at Joe McGuires (sic). I can't remember the exact conversation, and they just spoke about how they have been to PIC and they were under investigation but I can't remember anything more than that." He confirmed that Ms Whitton and Mrs McCulloch were present at Joe Maguires Pub with him. When asked if Mrs McCulloch indicated to him what he should say about her knowledge of the possession, use and supply of steroids, he answered "no". He was also asked, "Was there any other instance where the PIC investigation was discussed between yourself, Mr and Mrs McCulloch, and Terri Whitton?" The applicant replied, "I spoke to Nathan a short time after he came back from the PIC. All he told me was that his phone was off, it was an unpleasant experience and that he couldn't talk to me about it. That was all." 58On 9 March 2009, the applicant gave an induced statement. In it, he admitted that Mr McCulloch had told him that he had ordered steroids from Thailand over the internet. He said he became involved in using steroids because of a torn cartilage in his left knee and because Mr McCulloch told him that "steroids would help with recovery and rehabilitation". He said he did not report Mr McCulloch's supply of steroids "because I was doing the wrong thing at the time also". He also said that Ms Whitton had told him that her previous partner, Mr Wilson, had used steroids. Character evidence 59The applicant relied on a character reference from Detective Sergeant John Sommers. Detective Sergeant Sommers outlined that for a period of six weeks commencing in May 2008 he acted as the applicant's supervisor in the Tamworth Target Action Group. Before Detective Sergeant Sommers directly supervised the applicant, he had the opportunity to work with the applicant from time to time. He stated that in the early stages of the applicant's career, he formed the opinion that the applicant was "a hard working officer who from what I observed acted in a professional and ethical manner." After the applicant was appointed to a vacant position in the Tamworth Target Action Group, Detective Sergeant Sommers stated the applicant "continued to demonstrate a level of integrity, trust and moral standings that I could not falter." He stated that the applicant's actions were out of character and that he believed the applicant had learnt from his mistakes. He went on to state, "Although I do not condone Matthew for his actions, I still maintain a high level of trust in him and believe that if he was given the opportunity to remain within the NSW Police Force he could prove to himself and that of his peers to be a worthy member and I would not hesitate in having Matthew as a member of my team." 60Detective Sergeant Sommers was required for cross-examination and gave the following evidence: Q: If you go back, in paragraph 4 of your statement, talking about your observation of Matthew, you say, "He formerly appeared he was a hard-working officer" and from what you observed, "acted in a professional and ethical manner". See that? A: Yes. Q: Acting in a professional and ethical manner is entirely inconsistent with a police officer using steroids illegally, isn't it? A: Yes. Q: What would you have done, back in May of 2008, after you just started with your group, if you have become aware that he was part of a plan, together with McCulloch, to obtain steroids for people such as Hottes and Wilson? A: I would have been speaking to the crime manager in command, bringing it to their attention. Q: Would you be happy about him continuing as part of the Target Action Group, knowing that that's what was going on? A: No, not if he went through the process that he did. Because, as I said, that position he won through the process that he went through. If I had known about it then, my view would have been altered about his integrity. Q: Because when you nominated in support of him for one of the permanent positions in your group, you had absolutely no idea this was going on at that time? A: That's correct. Consideration 61In light of the voluminous written submissions filed on behalf of the applicant, it may assist if I commence my consideration by stating what this case is not about. It is not about whether the applicant engaged in serious misconduct. This has been admitted. In such circumstances, therefore, attacks on procedural matters seem misplaced. Nevertheless, as they have been advanced, I will address them. 62It seems to me what this case is about is whether the decision by the respondent to terminate the services of the applicant, taking into account the applicable principles for a review was harsh. In my view, this question, as I have already stated, should be answered in the negative. 63The applicant gave evidence and was cross-examined. Regrettably, I formed the view that the evidence of the applicant should be assessed with caution. The reasons for arriving at this conclusion, which I will elaborate on during the course of these reasons, were that on occasions the evidence of the applicant was evasive. On other occasions, I found it to be unconvincing and straining credibility. Furthermore, the evidence that he gave to the PIC and the admissions made during that Inquiry, must be assessed against the background that the applicant was aware that Mr McCulloch's house was searched on 29 July 2008 and a quantity of steroids seized. In addition, the applicant also engaged in a number of telephone calls with Mr McCulloch and other police officers before and after they gave evidence to the PIC, and before he was called to give evidence at the PIC. 64The case advanced by Mr Howell was that the order removing the applicant from the NSW Police Force was harsh and, in all the circumstances, unreasonable. The contention that the applicant's removal was unreasonable was based on, what was submitted to be a series of flaws in the decision-making process disclosed in the evidence. They were: (a) that the Commissioner failed to consider the applicant's response; (b) failed to take into account relevant and important considerations, namely, Div 3 of Pt 5 of the Police Regulations entitled "consequences of breach of the Code of Behaviour", in particular, cl 83 "Consequences of Police Officers using prohibited drugs or steroids" and that the notice process was not consistent with the Act. 65In respect of the contention that the removal was harsh, it was acknowledged by Mr Howell that the principles were well settled and were recently summarised by Walton J in Lawrance at [8] - [26]. 66Mr Howell submitted that the only matters that the applicant would add to Walton J's summation was that the Commission, when assessing the gravity of the misconduct and the proportionality (see Lawrance at [24]), or severity (see Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at 233 as embraced by the Full Bench in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212) of the response to it, must also be mindful that: (i) the loss of confidence Removal power is an "extraordinary power (see Bigg v Commissioner of Police (No.2) as adopted in Van Huisstede at [199] - [200]) at the apex of the disciplinary hierarchy (see Van Huisstede at [199] - [200]) contemplated by Part 9 of the Act (in light of Division 3 of Part 5 of the Regulations, particularly in cases involving a breach of the Code of Behaviour); (ii) is not intended to enable the Commissioner to punish an officer for misconduct (see Commissioner of Police v Brennan (2008) 172 IR 56 at [61]); and (iii) is to facilitate the removal of a police officer where the Commissioner forms the view he has lost confidence in the officers " suitability to continue as a police officer " (see s 181D(1)) having regard to certain identified grounds (competence, integrity, performance or conduct (see s 181D(1)), so as to protect the public interest. 67Mr Howell proceeded to analyse the acknowledged serious misconduct of the applicant in respect of his explanation for failing to report the misconduct of others; the gravity of the misconduct in using anabolic steroids, and the learning from other disciplinary jurisdictions in relation to drug use. Each of these contentions will be dealt with below. 68Mr Howell then proceeded to address the proper approach to assessing the "public interest". He noted that such approach was now well settled in s 181E review proceedings: see Lawrance at [15] - [16] and the cases cited therein. Mr Howell acknowledged that in the present case there were "no doubt competing public interests that need to be balanced and not all act against the applicant." He referred to Walton J's observations in Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 at [219], where his Honour observed: In this case, there are many factors, which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. 69The applicant submitted that the matters that weigh in favour of his interests when assessing whether the removal was unreasonable or harsh include: (i) the loss of a promising and stable career in the NSW Police Force; (ii) the avoidance of the significant reduction in income and consequential financial hardship associated with his Removal; (iii) the removal of the smear associated with Removal from the Police Force on loss of confidence grounds, and the damage to his reputation. 70In my view, it is clear that the respondent regarded the applicant's admitted conduct as being extremely serious. On any objective view, the applicant had substantially misconducted himself. This misconduct not only involved the improper use of anabolic steroids, but also included making arrangements to purchase further steroids (even if the applicant did not complete such a transaction). 71There is also a significant failure, over a lengthy period of time, to report his knowledge of seriously improper conduct by Mr McCulloch and the involvement in, and use of, steroids by others, about which the applicant knew, or strongly suspected. In particular, the applicant admitted that he did not report his knowledge of the unlawful importation, acquisition and use of steroids by Mr McCulloch and the involvement of Ms Whitton and Mr Wilson, with steroids. In my view, there can therefore be no criticism of the respondent's conclusion that the applicant had breached s 7 of the Police Act , Reg 20 of the Police Regulation 2000 (as enforced at the relevant time) and the NSW Police Force Code of Conduct and Ethics. 72Section 7 of the Police Act provides: 7 Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly. 73Regulation 20 of the Police Regulation provided: 20 Police officer to report misconduct (1) If: (a) an allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or (b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind, the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report). (2) This clause does not apply to conduct or alleged conduct: (a) that has been made the subject of a complaint under Part 8A of the Act, or (b) that has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings, or (c) that has already been reported under this clause to a senior police officer. (3) A senior police officer to whom conduct (or alleged conduct) by a police officer is reported is required to report it promptly to the Commissioner or a police officer nominated by the Commissioner if the senior police officer believes that the conduct (or alleged conduct): (a) constitutes (or would constitute) a criminal offence, or (b) could provide sufficient grounds: (i) for taking section 80 dismissal action, or (ii) for making a reviewable section 173 order or a section 181D order. 74In my view, the applicant's admitted failures to report his knowledge of misconduct and illegal activity, were ongoing and raised serious integrity issues. 75Police officers must act in accordance with the clear obligation to treat "integrity above all" by reporting the misconduct of their fellow officers. 76On the admissions alone made by the applicant in his response and his evidence to the PIC, in my view, it is clear that the respondent was entitled to conclude that the applicant had full knowledge of the use and importation of steroids by Mr McCulloch. It is also clear, as I will demonstrate, that he had been told, and seems to have believed as true, information that other persons, both police officers and members of the public, were involved in the illegal use or supply of steroids. 77The respondent noted the applicant's assertion that he had used steroids to aid his rehabilitation from a knee injury. However, the respondent did not accept this as a reasonable excuse. The applicant's evidence is that even though he was not specifically aware at the time that NSW Police had a policy that specifically dealt with the use of steroids until June 2008, he knew it was wrong for police officers to take steroids and in taking steroids he "might also be breaking the law". 78In assessing whether to remove the applicant, the respondent further noted that the applicant said that he had changed his mind after 15 May 2008 in respect of the use of steroids and did not ultimately go ahead with the purchase of further steroids from Mr McCulloch because he knew it was wrong. 79The respondent, correctly in my view, observed that the applicant's admitted conduct showed that his involvement with steroids was not a "one off". The applicant admitted to discussing the purchase of further steroids. 80The respondent found that the applicant's deliberate disregard for the law and for the policy of the NSW Police Force in respect of steroids, was unacceptable. This finding was clearly open to the respondent and for the reasons which follow, was neither unreasonable, unjust, or harsh. 81As was observed by the Full Bench in Commissioner of Police v Hugh Gerrard Brennan at [104] "... having regard to the totality of Mr Brennan's conduct, it represented conduct inimical to continued service with the Police Force. ...". I have reached a similar conclusion in respect of the applicant's conduct. 82When an analysis of the totality of the conduct in this case is considered, it leads to, in my view, the conclusion that the applicant's removal was justified. 83The respondent is required to assess an officer's professional suitability, as at the date he is considering making an order. The respondent's obligations in this regard are well settled. In Hosemans v NSW Police (No 3) [2005] NSWIRComm 161, Boland J at [143] observed: ... [T]he obligation on the Commissioner is to consider all the most recent and accurate information and materials available both in favour of and against the officer and he must "obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. ... 84His Honour's observations were affirmed on appeal in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263, and in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 ; (2010) 192 IR 363. Whether removal was "unreasonable" 85It was submitted by Mr Howell that the respondent in his Statement of Reasons, failed to properly consider the applicant's written Response. Mr Howell submitted that the respondent failed to pay regard to the applicant's rehabilitation, his contrition and remorse, character evidence provided by senior officers of the NSW Police Force and the fact that the applicant reported his misconduct, and that of others, to the PIC and provided assistance to the PIC and NSW Police Force thereafter. Mr Howell submitted that the respondent did not carry out the evaluative exercise required of him by s 181D(3)(c) of the Police Act. In support of this submission, Mr Howell referred to the Statement of Reasons, in particular the "glib" (Mr Howell using the expression adopted by Walton J in Lawrance ) discussion of the applicant's Response and the "glaring factual error" that "Reidy" was a member of the NSW Police Force. The use of the expression "glib" in Lawrance can be found at [281]: ...glib assurance by the Commissioner that he had 'carefully' considered all materials or that he had "taken into consideration all of the circumstances" or had "taken into account the applicant's written submission", without more, in these circumstances, does not permit a conclusion that the Commissioner had properly considered or taken into account this aspect of the applicant's response. This is particularly so where the Reasons do not descend to any discussion of the applicant's record of service or contribution to the Police Force (other than a reference to the applicant's disregard for prior warnings or counselling). 86In my view, there was no ambiguity in the grounds relied upon such that the applicant was unable to understand the grounds and respond. 87I am not persuaded that the respondent did not properly consider the applicant's Response. The term "glib", as used by the Vice President in Lawrance, cannot be made out here and is misconceived. In the present case, the decision to remove the applicant was based upon the admitted misconduct of the applicant. It follows that in these circumstances, there was no obligation on the respondent to dissect the applicant's Response into its various components. Furthermore, in light of the applicant's Response, the respondent did not pursue two additional grounds that he was considering relying upon in his s 181D(3)(a) Notice. In respect of "Reidy", the applicant informed the Commissioner in his Response that he was not a member of the NSW Police Force, a factor, no doubt, taken into account by the respondent. 88As was observed by the Full Bench in Commissioner of Police v Alyson Reid-Frost at [21]: ... [T]he grounds contained in a notice issued under s 181D(3)(a) must set out the essential bases for the Commissioner not having confidence in the officer's suitability in such a manner that they are sufficiently comprehensible to the police officer on whom they are served as to enable that person to understand those grounds and respond to them in a written submission as contemplated by s 181D(3)(b). 89The purpose of such a Notice was stated by the Full Bench in Commissioner of Police v Alyson Reid-Frost to be, at [22]: The statutory purpose with respect to the giving of notice is to ensure that the police officer has clear information as to why the Commissioner is considering the removal of the officer for lack of confidence, so that the officer may be given a reasonable opportunity to respond by a written submission (pursuant to s 181D3(b)) setting out, inter alia, any defence, explanation or excuse. The procedure is, therefore, intended to facilitate a fair hearing. The statutory requirement for the Commissioner to provide 'grounds' in s 181D(3)(a) merely underlines the gravity of the matters under consideration and the need to specify the allegations made with precision and with sufficient particularity. 90In my view, the Notice was consistent with these requirements. 91Mr Howell submitted that the respondent failed to take into account Div 3 of Pt 5 of the Police Regulation 2008 ("Police Regulation"), in particular cl 83 "Consequences for police officers using prohibited drugs or steroids". Clause 83 is as follows: 83 Consequences for police officers using prohibited drugs or steroids (1) This clause applies if: (a) the Commissioner considers, as a result of a test (other than an initial screening test) conducted under section 211A or 211AA of the Act or this Part, that a police officer has breached the code of behaviour by using a prohibited drug or steroid, and (b) the police officer has not breached the code of behaviour in that manner in the 5 years preceding the breach. (2) In such a case, the Commissioner may ask the police officer to choose whether to undergo counselling and rehabilitation or whether to face the possibility that a section 173 order may be made with respect to the officer. (3) If the police officer chooses to undergo counselling and rehabilitation, the Commissioner must direct the police officer: (a) to attend any interview organised with the officer's commander or manager, and (b) to attend an interview with a NSW Police Force drug and alcohol counsellor for assessment, and (c) to participate in any rehabilitation program recommended by that counsellor. (4) If a police officer: (a) chooses not to undergo counselling or rehabilitation, or (b) without reasonable excuse, fails to attend an interview or counselling session after choosing to do so, or (c) without reasonable excuse, fails to participate in a rehabilitation program after choosing to do so, the Commissioner may make a section 173 order with respect to the officer. (5) The Commissioner is not required to ask the police officer to choose whether to undergo counselling if the Commissioner, having regard to all the circumstances, considers that it would be more appropriate to make a section 173 order or section 181D order with respect to the officer. 92Mr Howell contended that the Police Regulation records a balancing exercise struck by the legislature to the effect that, pursuant to cl 83 of the Police Regulation, "if an officer is caught red handed or on a one off basis", having engaged in misconduct that was a breach of the Code of Behaviour, the consequences are either counselling or a s 173 order. Mr Howell went further to submit, even if an officer breaches the obligation more than once within a five year period, the Police Regulation gave the respondent a greater discretion than automatically contemplating removal. 93In my view, cl 83 of the Police Regulation does not apply to the applicant's situation. The matters raised by the applicant, as Mr Murphy submitted, "travel far beyond the use of steroids as a result of a urine test." In any event, it does not fetter the respondent's discretion to take disciplinary action in an appropriate case. 94Clause 83 of the Police Regulation applies to situations where prohibited drug or steroid use by a police officer has been detected following a urine test of on-duty police officers conducted pursuant to s 211A and s 211AA of the Police Act. Clause 83 does not apply to the circumstances in this case. It has no scope when serious integrity issues arise. 95Mr Howell submitted that the s 181D Notice was inconsistent with the Police Act in that it did not contain reference to the consideration of the finding that the applicant's involvement with the steroids was a "one-off". Mr Howell submitted that given the proximity of the applicant's steroid use between March and early May 2008, the proper conclusion was that the applicant's conduct amounts to a singular "one-off" breach. It was also submitted that the respondent failed to outline the grounds upon which the respondent was considering making the s 181D Order. In addition, Mr Howell submitted that the applicant did not have the opportunity to understand that this finding (that his use of steroids was not a "one-off"), was being considered. 96It is an abuse of the meaning of the phrase "one-off" to describe, as Mr Howell did, the conduct of the applicant. The applicant admitted being injected on approximately 10 occasions by Mr McCulloch with a steroid over a period of 6 weeks. Any submission that the misconduct should be characterised as a "one-off" is misconceived. The contention that the conduct was a "one off" aberrant act does not sit well with the premeditation involved and the applicant's silence until he was aware that his misconduct had been exposed. 97In addition, the s181D Notice clearly put the applicant on notice that it was alleged that he organised with Mr McCulloch to go halves in the future purchase of steroids. Although he did not proceed with this transaction, it is further evidence that his conduct cannot be described as "one-off". The basis of his admission in this respect was inevitable in the context of the telephone intercept of 15 May 2008. The respondent quite properly then concluded that the applicant's telephone call to Mr McCulloch showed that his involvement with steroids was not a "one-off". 98In my view, and I find, the s 181D Notice was consistent with the Police Act . I am not persuaded that the alleged procedural deficiencies relied upon by Mr Howell are sufficient to conclude that the removal was unreasonable. Character evidence 99Turning to the character evidence in support of the applicant provided by senior officers, there was, in my view, little probative value in the references, especially when Detective Sergeant Sommers' evidence in cross-examination is considered. Detective Sergeant Sommers supervised the applicant for a period of a little over six weeks, although he had had the opportunity to work with him from time to time since 2005. Although he gave oral evidence supporting the applicant's return to the role as a police officer, he was only prepared to have him on his team "with systems in place." 100There is no comparison at all with the type of material put before the Vice President in Lawrance. In that case, there were 12 character references that the applicant in that matter provided from senior or supervising officers in the NSW Police Force including a Chief Inspector and Detective Inspectors. 101As was observed by the Full Bench in Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 at [73]: ... [W]hether character evidence is a material consideration in a consideration of whether the dismissal was harsh, unreasonable or unjust, will depend on the facts of each case. In the present case, we are dealing with the very serious misconduct of a police officer telling lies that misled a court. The character evidence comes from police officers, including very senior officers, who encountered the appellant after the events that led to his removal and when he had been transferred to Armidale. The evidence was that over the six months or so that the other officers had come into contact with the appellant they perceived him to be "hard working", "capable", "great people skills", "learned from his mistake", "professional", "attempting to re-build his career" and as having "a lot to offer". It should be borne in mind that Watson J in Metropolitan Meat Industry Board identified as a relevant factor "past good conduct", although there may be cases where subsequent conduct may be relevant, particularly as to the evaluation of an appropriate remedy. 102In applying these principles to this matter, in my view, the character evidence cannot be a material consideration when the seriousness of the misconduct is taken into account. Whether removal "harsh" 103Mr Howell submitted that the Commission, when assessing the gravity of the misconduct and the proportionality or severity of the response to it, as reflected in the Statement of Reasons, must be mindful that the loss of confidence removal power is an "extraordinary power" at the apex of the discipline hierarchy contemplated by Part 9 of the Police Act . It is not intended to enable the respondent to punish an officer for misconduct and is to facilitate the removal of a police officer where the respondent forms the view he has lost confidence in the officer's "suitability to continue as a police officer" having regard to certain identified grounds so as to protect the public interest. Poisons and Therapeutic Goods Act 1966 104The use of steroids generally is regulated by the Poisons and Therapeutic Goods Act 1966. Section 16 provides that "a person shall not have in his or her possession or attempt to obtain possession of a prescribed restricted substance" unless certain circumstances are met. In summary, these circumstances restrict the possession of anabolic steroids to medical practitioners, those who have written authorisation by the Director-General of the Department of Health, or those licensed or otherwise authorised by the Poisons and Therapeutic Goods Act . The Poisons and Therapeutic Goods Regulation 2002 , which was in force as at July 2008, provided that the substances specified in Appendix D are "prescribed restricted substances". Appendix D listed substances including "Nandrolone", "Oxymetholone", "Testosterone" and "Anabolic and androgenic steroidal agents as such substances." NSW Police Force Drug and Alcohol Policy 105The NSW Police Force Drug and Alcohol Policy 2007 was annexed to an affidavit of Sergeant Shayne Lees, Education Officer for the Oxley Local Area Command. It included the Policy and Training Package. 106In the NSW Police Force, the following is relevant in respect of the use of anabolic steroids. 107The NSW Police Force Drug and Alcohol Policy 2007 relevantly states: New South Wales Police Force employees and contractors are not permitted to use anabolic steroids unless prescribed by a suitably qualified medical practitioner. ... There is no place for any person in the NSW Police Force who unlawfully uses, sells or supplies anabolic steroids. 108In the Commissioner's Foreword, the Commissioner personally states: All employees of the NSW Police Force are required to comply with the policy's general principles of total abstinence from using illicit drugs. The use of anabolic steroids is also prohibited unless lawfully prescribed and monitored by appropriate medical practitioners. My message to all staff is very simple. If you take illicit drugs, if you sell illicit drugs, if you abuse prescription drugs, there is no place for you in the NSW Police Force. On page 8 of the Drug and Alcohol Policy 2007: Steroids NSW Police Force employees and contractors are not permitted to use anabolic steroids unless prescribed by a suitably qualified medical practitioner. If an employee or contractor has been prescribed anabolic steroids, they are required to produce written documentation certified by a suitably qualified medical practitioner if requested by their Commander, Branch Manager or an Authorised Officer. There is no place for any person within the NSW Police Force who unlawfully uses, sells or supplies anabolic steroids. Only targeted drug testing may examine for anabolic steroids. At page 18 of the Drug and Alcohol Policy 2007: Anabolic steroids ... Any police officer who tests positive to a presence of anabolic steroids in their urine from a targeted drug test, and cannot provide documentary evidence of that steroid being lawfully prescribed by a suitably qualified medical practitioner, will be subject to the same disciplinary provisions as set out in the positive prohibited drug section of this policy. The relevant part of the Drug and Alcohol Policy 2007 is also found on page 18 of the document and provides: "Prohibited drugs Any police officer who tests positive to the presence of a prohibited drug is liable to dismissal. The Commissioner can apply the provisions of a s.181D order with respect to that officer unless that officer has had that positive drug test declared as accidental exposure by a Commander or Branch Manager as set out in the provisions of that part in this policy. If a police officer is permitted to remain in police employment following a positive drug test, that officer will be subject to unscheduled testing for the following five years. The officer will also be monitored by an approved counsellor and will be expected to comply with any rehabilitation program developed for them." Page 29 of the Drug and Alcohol Policy, where under the heading "Key Messages" is states: "There is no place for any NSW Police Force employee or contractor who uses illegal drugs, sells illegal drugs or abuses prescription drugs". 109The NSW Police Force Drug and Alcohol Policy 2007 was rolled out in July 2007 and was the subject of a training package that was developed in December 2007. It should be noted that the tightening of the approach adopted by the Commissioner by that policy is also reflected by the removal of the "Amnesty" that was previously provided for by the 2001 Drug and Alcohol Policy. As is evident from the training package that was delivered to police officers: The policy enforces a zero tolerance approach to drug use by police employees. The document does not contain a harm minimisation focus within the context of the application of the Policy. 110The "Key Points" in the December 2007 training package describe: Zero tolerance policy on prohibited drug and non prescribed steroid use by all NSWPF employees. 111The Powerpoint slide used as part of the delivery of the training package for the Drug and Alcohol Policy 2007 entitled "What's New?" (apparently by reference to the "revised policy introduced 1 July 2007" described in the previous slide), provides: * Zero tolerance to drugs * No amnesty provisions for self identified drug users * Police officers can now be tested for non-prescribed steroids... 112The use of anabolic steroids (or prohibited drugs), in a manner inconsistent with the Code of Behaviour is serious misconduct. The applicant did not contend otherwise. 113Mr Howell acknowledged that whilst there is no doubt that the inappropriate use of anabolic steroids by police officers is serious misconduct and police officers failing to report the misconduct of others may also be serious misconduct, depending on the circumstances, to state the issue at that level of generality does not adequately assess the facts of the present case. Mr Howell proceeded to address each of these elements of the applicant's misconduct. 114I reject the submission that absent the applicant's admissions, the transcript of the telephone calls between the applicant and Mr McCulloch gave rise to no more than suspicion and did not establish misconduct. 115This submission is entirely misconceived. As I will demonstrate, any balanced assessment of the telephone material clearly sustains the applicant's culpability on all three issues and any submission to the contrary is fanciful. The applicant's failure to report, in particular Mr McCulloch's misconduct, continued not only after a search had been conducted of Mr and Mrs McCulloch's house and they being suspended from duty, but for many more months in circumstances where the applicant was aware that Mr and Mrs McCulloch had been summoned to give evidence at the PIC and had given evidence. Throughout this period, the applicant remained silent and he can offer no explanation. 116It is important to bear in mind that by the time the applicant came to give his evidence at the PIC on 4 December 2008, he was well aware that steroids had been discovered on 29 July 2008 at Mr and Mrs McCulloch's house. He was also aware that Mr and Mrs McCulloch had appeared before the PIC and recordings of telephone intercept conversations had been played. He must have, by this time, also been well aware that his own use of steroids had been openly discussed in a number of telephone conversations between himself and Mr McCulloch during the period March through to May 2008. He had been concerned about his steroid use being discovered through telephone taps as early as 17 May 2008. This may also explain why he did not proceed with the arrangement to purchase further steroids. 117During cross-examination, the applicant accepted that when he appeared before the PIC he knew that there were strong grounds to establish that he had been using steroids illegally. 118During his evidence, the applicant claimed that when he was initially using steroids, getting caught did not enter his mind. He later explained that his reference, in a taped conversation with Mr McCulloch on 2 April 2008, to a urine test picking up "gear", a euphemism for steroids, was because he was concerned that as part of his medical examination, he had to do a urine test and steroids may have been detected in his system. Concerns about getting caught were also recorded in conversations of 17 May 2008 and 22 July 2008. 119Although Detective Inspector Greg Stier stated in his Investigator's Report dated 19 July 2009 that he believed the applicant gave truthful evidence before the PIC, it is unclear whether the Detective Inspector examined the applicant's transcript of evidence in the PIC proceedings. 120In any event, Detective Inspector Stier concluded that the three allegations of misconduct by the applicant, which were investigated by him and confirmed, led him to conclude that the applicant was involved in serious misconduct. He stated there was "no other alternative, apart from consideration by the Commissioner, of a s 181D dismissal from the NSW Police Force." Detective Inspector Stier did not have the benefit, of course, of the applicant's evidence in this review. 121The evidence of the applicant in this review casts doubt on his credibility. During cross-examination, the applicant stated that, shortly after he became aware of steroids being found in Mr and Mrs McCulloch's house, he spoke about that fact, but could not remember whether it was with Mr or Mrs McCulloch. His evidence was that he was aware of the "get the steroids out of the house" text message, but was not sure whether it was Mr or Mrs McCulloch that had told him. It was from this date that he became concerned that his own use of steroids might be discovered. Although not being able to recall whether it was Mr or Mrs McCulloch who told him about the steroids in the house, he was taken to the evidence he gave before the PIC where he stated that Mrs McCulloch told him about the text message. Before the PIC, he had a clear recollection of the conversation "she told me she didn't know what he was talking about ... so she wanted to see him at work to find out what he was talking about." 122Asked to explain the discrepancy between his evidence to the PIC as to who told him about the text message, and his inability, in these proceedings, to recall which of them told him, his response was "that must have been an oversight." 123In early September 2008, the applicant was aware that Mr and Mrs McCulloch had been summoned to give evidence at the PIC. During the review process, the applicant said he could not recall ringing Mr McCulloch on 8 September 2008, after he became aware of the PIC summonses. He was then taken to Telstra records of the calls he made to Mr McCulloch on 8 September 2008. The applicant's evidence was that these calls were to "see how he was going." 124The applicant denied discussing what evidence Mr McCulloch was going to give to the PIC and whether or not that evidence would make reference to him. 125The applicant was served with a PIC summons on 24 or 25 November 2008. His evidence was that he had not spoken to anyone, apart from his solicitor and girlfriend, about the summons. He was sure he did not ring Mr McCulloch on the morning that Mr McCulloch was to appear before the PIC, in order to discuss the nature of the evidence he would give. 126When the applicant gave evidence to the PIC on 4 December 2008, he stated he had a conversation with Mr McCulloch about Mr McCulloch's appearance before the PIC, probably a couple of days after Mr McCulloch had appeared and given evidence. The applicant made no mention of his 16 September 2008 phone call to Mr McCulloch, the day on which Mr McCulloch appeared before the PIC. When shown the Telstra records in the review proceedings, the applicant agreed that he had rung Mr McCulloch on the night of the day on which Mr McCulloch had given evidence. He said the purpose of the telephone call was to check on Mr McCulloch's welfare. 127The applicant was then taken to his evidence before the PIC where he said he could not remember if he had asked Mr McCulloch about the nature of the telephone recordings which were played to him. He ultimately conceded that from mid to late July 2008, he would have been concerned that telephone conversations were being recorded. However, he maintained he was telling the truth when he told PIC that he could not remember if he asked Mr McCulloch about the nature of the phone calls played to him. 128The applicant maintained this lack of memory, despite his knowledge that the phones were being tapped; his concern about the content of his conversations, and the matter in relation to Mr McCulloch; his awareness that steroids were found in Mr and Mrs McCulloch's house; that the applicant had steroids administered to him in that house; that Mr McCulloch had been required to give evidence at the PIC, at which phone recordings were played, and his concern that he may have been a party to these conversations. 129The applicant was then taken to his evidence before the PIC where he said he could not remember speaking to Mrs McCulloch about her giving evidence before the PIC. He was asked if he recalled attending Joe Maguires Pub when Mr and Mrs McCulloch and Ms Whitton were present. This occurred after Mr and Mrs McCulloch had appeared before the PIC, but before the applicant had given his evidence. When asked why he had not informed the PIC of this meeting, the applicant attempted to draw a distinction between his inability before the PIC to remember speaking with Mrs McCulloch about her giving evidence at the PIC, and Mrs McCulloch saying her and her husband had been to the PIC but could not talk about it and that it was an unpleasant experience. His evidence was that he thought the PIC was more concerned with "the content". 130An analysis of the applicant's evidence before the PIC and his evidence in these proceedings has led me to conclude that the applicant has been less than candid and frank in giving evidence before both the PIC and this Commission. It is inconceivable that, during his discussions with Mr and Mrs McCulloch, he did not seek to find out whether his involvement had been exposed. They were close personal friends. He had allowed Mr McCulloch to inject him with steroids. He was his "buddy". The very fact that he remained silent over the balance of September, October and November 2008 leads to the inference that he did not believe that his involvement had been disclosed by Mr and Mrs McCulloch and that he remained hopeful that his own misconduct would remain undetected. This is so, whether or not the applicant also knew that Mr McCulloch had, in fact, lied to the PIC by claiming that he had never injected another police officer with steroids. 131Furthermore, the applicant's evidence was that he found out about the PIC summons served on former Senior Constable David Cleal on 24 November 2008 to give evidence on 2 December 2008, after he had attended the PIC. His evidence was that when he rang Mr Cleal on 1 December 2008, he did not know that Mr Cleal was to give evidence at the PIC the following day. The applicant claimed that it was not until a couple of days after 4 December 2008, that he found out that Mr Cleal had been summoned to give evidence at the PIC. However, Telstra records show that between 25 November 2008 and 1 December 2008, the applicant used his mobile phone on six occasions to call Mr Cleal. The applicant claimed that the purpose of the call on 1 December 2008 was because Mr Cleal was "going through some dramas". According to the applicant, Mr Cleal's appearance at the PIC the following day was not discussed and the applicant remained unaware of it until after his own appearance at the PIC on 4 December 2008, which was also not discussed. 132This evidence raises clear doubts about the applicant's credibility. 133In addition, the applicant was asked whether he was present when Mr McCulloch asked Ms Whitton to try to obtain steroids from Mr Wilson, and whether he was part of that conversation. His response was "I don't recall that" although he thought it was something he would remember if he was there. The applicant later told the PIC that "I spoke to them about it" referring to the phone call that Ms Whitton was to make to Mr Wilson about obtaining steroids. Asked to whom he had spoken, the applicant said "Nathan" and "Terri might have been present, but I can't remember." 134During cross-examination in the review proceedings, the applicant accepted that he was aware that Mr McCulloch approached Ms Whitton with a view to obtaining steroids from Mr Wilson. In light of the recorded telephone conversations between himself and Mr McCulloch of 17 May 2008, where he told Mr McCulloch that he had some more "intel" about the phones at the police station being tapped and then proceeded to criticise Ms Whitton for "making that f...... phone call the other day, that's not f...... very good." Asked in cross-examination during the review why he had not told the PIC that he was aware of Mr McCulloch's approach to Ms Whitton to obtain steroids from Mr Wilson, the applicant's response was "No. All I said was I wasn't present but I had knowledge." This was untrue. His response to the PIC was "I don't recall that." He was unable to offer any explanation as to why he had not told the PIC that he was aware of Mr McCulloch's approach to Ms Whitton. 135In light of this evidence, the applicant's claim that he made a full and frank disclosure to the PIC cannot stand. 136During the PIC hearings, the applicant was played a recording of a telephone conversation with Mr McCulloch that took place on 23 April 2008. His evidence at the PIC was that what Mr McCulloch had ordered and received was "a legitimate product" which Mr McCulloch referred to as "HGH", but which is "not actually human growth hormone" but something called "pro growth hormone". 137During the review proceedings, the applicant claimed that this substance was a legitimate herbal supplement, which could be obtained from health food stores. However, when the applicant was asked if he understood Mr McCulloch's reference to "HGH" to be a reference to human growth hormone, his response was "possibly". His evidence was that he did not know what Mr McCulloch meant by "HGH", "if it was the illegal - the restricted steroid or like a herbal supplement." 138During a telephone intercept on 13 May 2008, the following conversation took place between the applicant and Mr McCulloch: MW: How about fucking LING LING skiting off about the fucking perfume? NM: Yes. What's the go there? MW: Fucking loud mouth, loose lipped cunt. NM: Fucking, we'll have to do a fucking MW: Black ops on him. NM: Donnie, what's his Dannie, Donnie fucking Brasco on him. MW: Yeah. NM: -Laughs- MW: Fucking cunt. I might fucking, I might get some of them cunts too I think. NW: You reckon? MW: Yeah, given 'em a go. NM: I was thinking um, I was thinking this morning that you know, I was thinking, well WALSHY's mate didn't get caught for a year. MW: No, no. NM: -Laughs- I only, only have to do one or two. MW: Yeah. NM: Personal use. -Laughs- MW: He got, he got away for a year. Got away with it. NM: Mm. But it's pretty, pretty pricey isn't it, it's like fucking three grand or something? MW: Yeah, yeah. Cost ya a bit. NM: Mm. Oh might have a little bit of a squiz into it. MW: Yeah. NM: See what, see what it's about. -Laughs- MW: So how did you, you gotta order 'em over the net haven't ya? NM: Hey? MW: You, you ordered the perfume over the net didn't ya? NM: Yeah. MW: I haven't got the internet, I'll, I'll just give you the fuckin' money. NM: Yeah if you want some, just fuckin' let me know. MW: Yeah. Yeah, how much does it cost, two hundred isn't it? NM: Yeah. MW: I'll um, I'll give you the paperwork so you can order the perfume. NM: -Laughs- Righto. Actually I've got um, I've got a, got a little fuckin' jar of it here if you, like one unopened jar of it here, if you want to try it? MW: Yeah righto. NM: So. MW: Righto, righto BREAD. NM: Just drop up whenever and I'll fucking (ui) it to you. MW: Yeah. Yeah. No dramas. -End of relevant conversation- 139The applicant acknowledged that the word "perfume" had been used to describe steroids which had been illegally imported into Australia. However, his evidence in respect of the use of the word "perfume" during the telephone intercept on 13 May 2008 was that it was used in the context of both describing the illegal steroids and a pro growth hormone ("HGH") which is available from health stores. Such evidence, in my view, strains credulity. It makes no sense that the term "perfume" could be used to describe both illegal and legal substances. Cross-examined on the basis that the term "perfume" only makes sense if it was referring to unlawful "HGH" and not a herbal supplement, the applicant's evidence was "it just depends upon the type of mood I may have been in at the time." 140Similarly, a reference to not getting caught for a year clearly is referring to the use of an illegal substance. During his evidence in the review proceedings, the applicant steadfastly refused to accept the reality of what was being discussed in this conversation. This clearly demonstrated, in my view, that the applicant was prepared to be less than candid in order to minimise his involvement with illegal steroids. 141In a further telephone intercept on 15 May 2008, there was no pretence that the "perfume" was anything other than some form of steroid. It was during this conversation that the applicant agreed to give Mr McCulloch $220 to buy steroids from Mr Hottes. However, once again, the applicant maintained that the reference to "perfume" was meant to convey that the discussion was about herbal supplements. I reject the applicant's evidence. It was fanciful and absurd. 142Telephone intercepts on 17 May 2008 reveal that the applicant had become aware that telephones at the Tamworth Police Station were being tapped. The applicant accepted that his concern over Ms Whitton's phone call to Mr Wilson to enquire if steroids could be obtained was that it could have led to the applicant's previous use of steroids being discovered through the covert recording of phone conversations. However, he would only accept that this concern "may have been part of the reason" that he declined to go through with the transaction to purchase more steroids. Once again, the applicant's evidence is unconvincing. 143In relation to the applicant's misconduct relating to his failure to report the misconduct of others, Mr Howell submitted that the applicant had never denied that he failed to report the misconduct of Mr McCulloch and Ms Whitton. The applicant has said that he had no excuse for not reporting the misconduct and his only explanation for not reporting the misconduct was that he would have drawn attention to himself. Further, whilst the applicant had not done specific training on the NSW Police Force Drug and Alcohol Policy 2007 until June 2008, he did admit that there were other policies that related to reporting the misconduct and he knew that he should have reported the misconduct to a supervisor. 144Mr Howell submitted a number of considerations that "to some extent" mitigate the gravity of the applicant's failure to report the misconduct. These considerations included firstly, that it was not a failure by the applicant to report per se, but that he failed to report his knowledge in a timely way. Secondly, that the Police Regulation does not impose an obligation to "self report", in that the regulations are expressly defined as to require disclosure of misconduct of others. Whilst the applicant does not assert that this absolves him from responsibility for his actions, Mr Howell submitted that it was a relevant consideration. Thirdly, that the applicant made a full and complete report to the PIC in December 2008, then to the NSW Police Force in an internal complaint investigation in March 2009, and provided information and assistance with the criminal prosecution of Mr McCulloch and Ms Whitton. Fourthly, Mr Howell submitted that the applicant's failure to report his knowledge in a timely way had "absolutely no adverse consequence whatsoever." 145Whether or not a particular decision to remove a police officer is characterised as harsh will always turn on the particular facts of each case. The applicant's failure to report the misconduct of others continued for many months in circumstances where the applicant was aware that Mr and Mrs McCulloch's home had been raided and steroids found. Throughout this time, the applicant failed to speak up about his knowledge of the misconduct. In his written Response, the applicant admitted that he did not report his knowledge of the misconduct. He offered no explanation other than that he realised that his own conduct was unacceptable and he was fearful of making a report because he knew that it would draw attention to himself. This gives rise to significant integrity issues on the part of the applicant. The information that the applicant provided to the PIC must be assessed against the background of the applicant's knowledge that Mr McCulloch had already given evidence to the PIC. Telephone intercept records reveal that the applicant was in contact with Mr McCulloch both during and after the time he gave evidence. The applicant's evidence before the PIC must be seen in this context. He knew that Mr McCulloch's house had been raided in July 2008 but he did not come forward. He knew he was being investigated but he did not come forward. When finally confronted at the PIC, the applicant had little choice but to provide information, although on my reading of the PIC transcript, the applicant was hardly forthcoming. 146In terms of the applicant's misconduct relating to the use of anabolic steroids, Mr Howell submitted that even if the Commission does not accept the submissions as to the removal being unreasonable, that relevant factors to an assessment of gravity and whether the removal was harsh include considerations that the appropriate consequences for a police officer who has tested positive following a targeted test are remedial, not disciplinary and well short of removal. I have already dealt with this submission. It was further submitted and that the respondent failed to indicate that he considered taking any form of action other than removal. The respondent has a discretion in this respect. 147Mr Howell submitted that the approach reflected in cl 83 of the Police Regulation, and ultimately cl 85 for a repeat offender, reflects a balancing of competing considerations including the recognition of the "deep penetration of drug use in our society, an acknowledgement that police officers whilst sworn to uphold the law are subject to the same human temptations and weaknesses as the rest of us, and a judgment that our community should not lose the services of an otherwise competent, capable and diligent police officer, and the very significant investment of public resources that went into the training of such an officer, because they made a one-off bad decision." 148It was further submitted that whilst the submission that the applicant was led astray by a senior colleague, Mr McCulloch, was not relied upon as an excuse, it was a relevant factor when assessing the seriousness of the applicant's conduct, and whether the evidence that he is rehabilitated should be accepted. The applicant described Mr McCulloch as a very influential officer in the Local Area Command. Mr Howell submitted that the applicant never asserted that he was pressured into taking steroids by Mr McCulloch in the sense that his will was overborne. However, he submitted that the facts disclose the influence of Mr McCulloch as a well-liked and influential senior colleague. Mr Howell submitted that the applicant did not approach Mr McCulloch for help in rehabilitating his injuries nor to supply steroids to assist with that rehabilitation. 149Mr Murphy submitted that for the applicant to now assert that he allowed himself to be influenced to engage in criminal conduct by a "mate" who the applicant knew was involved in such criminal conduct himself, does not mitigate the applicant's misconduct but instead raises serious additional concerns about his suitability to be a member of the NSW Police Force. I agree with this submission. 150Mr Murphy addressed the public interest submission by Mr Howell by submitting that there was nothing to support the proposition that the public interest would be served by the retention of the applicant in the NSW Police Force. Counsel submitted that the public interest would be better served by the applicant's removal. 151As to the applicant's remorse, co-operation and rehabilitation, these only came about when it must have been clear to the applicant that his misconduct was about to be exposed. 152Mr Howell also submitted that the Commission may take guidance from other disciplinary jurisdictions in relation to drug use. Mr Howell used by way of example a case of the continued professional suitability of a legal practitioner as analogous but far more serious in the circumstances: Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320. In that matter, the solicitor had been using cocaine and heroin and was convicted of importing an amount of cocaine into Australia. Young CJ in Eq outlined 10 factors said to support a conclusion that a legal practitioner had demonstrated compelling mitigating circumstances why she should not have her name removed from the Roll of Solicitors. 153What is at issue in the present case is the employee/employer relationship, which was not an issue in Prothonotary of the Supreme Court of NSW v P . In this particular case, the importance of the maintenance of integrity of the Police Force is an important factor to be considered. 154Furthermore, the observations of the Full Bench in Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301, are relevant to reliance being placed on the above case. At [17] - [18] the Full Bench observed: [17] We do not find particularly helpful the practice of relying on a collection of earlier decisions to support a contention that an order removing an officer from the New South Wales Police Force is harsh, unreasonable or unjust or that reinstatement is practicable. Inevitably, each application for review of an order of the Commissioner of Police must be considered on its own particular facts and circumstances, with the judge being required to reach a decision, based on an overall assessment of the evidence as to whether the decision to remove a police officer is harsh, unreasonable or unjust and, where relevant, whether reinstatement should be ordered. We agree with her Honour's observation at [83] that: [T]he diversity of these responses by the Commissioner highlights again the necessity to focus on the individual circumstances of each case, and why the Commission is not particularly assisted by material which may or may not have been available to the Commissioner and utilised by him in any individual assessment made of the practicability or otherwise of an officer's reinstatement. [18] Comparisons may be of some assistance where it is contended officers who have engaged in the same conduct, or have been involved in the same conduct or related incidents the subject of a loss of confidence decision, have been treated differently or inconsistently. This is not the case here. 155As I have already indicated, in light of a consideration of the totality of the applicant's misconduct and the findings that I have reached in respect of certain aspects of the applicant's evidence, these matters go directly to what I must consider under s 181F(3) of the Police Act . 156I am also mindful and take into consideration the applicant's case, which was that he has been rehabilitated, and that his conduct since his admitted wrongdoing, in reporting to the PIC, the internal police investigation thereafter and in giving assistance to the prosecuting authorities, including reporting the misconduct of other officers additional to and not associated with the steroids issue, demonstrate he is an officer in whom the respondent could have confidence. 157However, in weighing up all these matters, including those matters as identified in s 181F(3)(a) and (b), in my view and I find, the applicant's interests are outweighed by public interest considerations. He should not return to the NSW Police Force. The public interest demands and expects that he does not return. 158In all the circumstances, I consider the public interest in maintaining the integrity of the NSW Police Force must result in the conclusion that the removal of the applicant, taking into account all of the circumstances and evidence before me in this review, was not harsh, unreasonable, or unjust. ORDER 1. I order that the application be dismissed. ********** 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: 28 March 2011