Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Lawrance [2011] NSWIRComm 109 Hearing dates: 18 and 19 May 2011 Decision date: 17 August 2011 Jurisdiction: Industrial Relations Commission Before: Boland J, President at [1], Kavanagh J at [195], Staff J at [1] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The stay of the orders of Walton J on 2 December 2010 is dissolved. Catchwords: APPEAL - POLICE - Application by Commissioner of Police for leave to appeal and appeal from decision at first instance to order re-employment of a police officer to a lower grade - Officer removed pursuant to s 181D of the Police Act 1990 on ground of officer's conduct - Officer exposed penis to group of fellow officers and persons as a "party trick" in a restaurant at a Christmas party - Innate seriousness of misconduct - Whether officer genuinely contrite and remorseful - Whether primary judge gave sufficient weight to earlier episodes of misconduct - Consideration of alcohol as a contributing factor to misconduct - Whether primary judge gave sufficient weight to public interest - Whether there was power to order re-employment to a lower grade - Whether it was impracticable to re-employ officer to lower grade - "Immaturity" - Whether primary judge erred in mixing factors relevant to question of harshness and factors relevant to assessing gravity of misconduct - Relevance of character evidence - Leave to appeal granted - Appeal dismissed Legislation Cited: Fair Work Act 1994 (SA) Industrial Relations Act 1996 Industrial and Employee Relations Act 1994 (SA) Police Act 1990 Police Act 1998 (SA) Summary Offences Act 1988 Cases Cited: Abboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32 Alexander v Commissioner of Police [2009] NSWIRComm 3 Applicant v Respondent [2009] AIRC 950 Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Casari v Sydney South West Area Health Service (No 2) [2008] NSWIRComm 240 Commissioner of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191 Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 Commissioner of Police v Evans [2006] NSWIRComm 170; (2006) 153 IR 144 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198; (2009) 185 IR 458 Crowe v Graham, Duncan, Rogers & McKay [1968] HCA 6; (1968) 121 CLR 375 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Director of Public Employment by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Director General, New South Wales Dept of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 Dismissal of Union Delegates at Homebush Abattoir, Re [1966] AR (NSW) 371 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Foster and Woolworths Limited [2000] NSWIRComm 208 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Hosemans v Commissioner of Police (No 2) [2004] NSWIRComm 253; (2005) 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 House v The King (1936) 55 CLR 499 J Aresca v Qantas Airways Limited [2002] AIRC 41 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284 McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (NSW Branch) [1973] AR (NSW) 231 Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Moloney v Mercer [1971] 2 NSWLR 207 Morgan v Commissioner of Police [2009] NSWIRComm 184 New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 Rowland v Austar Coal Mine Pty Limited [2010] FWA 8011 Samad v Public Service Board (NSW) (1983) 5 IR 464 S Mason v Boyne Smelters Limited [Dec 880/99 B Print R7701] Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; (2010) 194 IR 144 Ueckert and Australia Water Technologies Pty Ltd [2000] NSWIRComm 123 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Wright v R (No 2) [1968] VR 174 Category: Principal judgment Parties: Commissioner of Police (Appellant) Andrew Lawrance (Respondent) Representation: M J Kimber SC with J V Murphy of counsel (Appellant) P F Lowson of counsel (Respondent) Henry Davis York Lawyers (Appellant) Walter Madden Jenkins Solicitors (Respondent) File Number(s): IRC 1421 of 2010 Decision under appeal Jurisdiction: 9105 Citation: Lawrance v Commissioner of Police [2010] NSWIRComm 149 Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173 Date of Decision: 2010-12-02 00:00:00 Before: Walton J, Vice-President File Number(s): IRC 37 of 2010 DECISION OF THE COMMISSION Decision of Boland J, President and Staff J 1In Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139, Walton J, Vice-President, considered an application by Andrew Lawrance ("the respondent") under s 181E of the Police Act 1990 ("the Police Act ") for a review of an Order made on 30 December 2009 ("the Order") by the Commissioner of Police ("the appellant") pursuant to s 181D(1) of that Act removing Mr Lawrance from the NSW Police Force ("the Police Force"). 2The central reason for Mr Lawrance's removal was his conduct on the evening of 11 December 2008. Walton J described the conduct thus: [3] During the course of the evening, the applicant, then holding the rank of Sergeant and the position of sector supervisor at Maclean Police Station, attended the 2008 'Lower Clarence Sector' police Christmas party ('the Christmas party') at a Chinese restaurant, known as 'Tommy's Chinese Restaurant' ('the restaurant'), situated at Clarence Street, Yamba, New South Wales. [4] The applicant on at least two occasions exposed his penis to which a bottle opener was attached by means of a ring (which was attached to the bottle opener) inserted into a piercing in his penis known as a 'Prince Albert' piercing. That behaviour was described by the applicant as a 'party trick', although on the evening in question, the applicant added to his misbehaviour the use of the opener to open a bottle of beer. ... [5] In attendance at the Christmas party there were 24 adults and one child. There were 16 serving officers ... All officers including the applicant were off duty but attending a work Christmas party. [6] There were eight civilians who attended the Christmas party including the applicant's wife, Rebecca Lawrance. Other officers' wives who were present included: Karen Hambrow, Amber Barnier, Kim Palmer, Dana Pope and Sarah Hinton, who brought her newborn son, Caleb, to the restaurant, (it should be noted that the Hinton family left immediately after the meal and before the impugned conduct took place). Security guards, Jamie Stokes and his wife, Susie Stokes, also attended. They owned a security company in Yamba (I shall deal separately with whether they witnessed the conduct). The restaurant owner, Tom Chiu, and his staff were also present on the night. [7] Some persons who attended the Christmas party (police and non-police) witnessed the appellant's (sic) exhibition. Others had some knowledge of the unfolding events without direct observation or necessarily understanding all aspects of the 'goings on'. There was a controversy, to which I shall return, as to whether members of the public and other persons not attending the function saw or may have seen the impugned conduct. 3Walton J found that the removal of Mr Lawrance was harsh. His Honour found, however, that reinstatement was impracticable and determined that Mr Lawrance be re-employed as a Senior Constable. 4The Commissioner now seeks leave to appeal and if leave is granted, to appeal from the decision of Walton J. First instance decision 5Walton J commenced by identifying the relevant principles to be applied in considering an application under s 181E of the Police Act. It is unnecessary to repeat his Honour's analysis and we regard it as being correct. 6Next, his Honour overviewed the evidence. In that respect we note much of the evidence before the Commission was uncontroversial, although there were some matters of fact about which there was a strenuous contest. There was an agreed statement of facts that indicated no officer advised the respondent to refrain from engaging in the impugned conduct; no disciplinary or other action was taken against any other police officer attending the Christmas party; the respondent remained on operational duties and retained his appointments until October 2009 and no criminal proceedings were commenced against the respondent. 7His Honour described the respondent, his personal circumstances, his career in the Police Force, as well as his employment subsequent to his removal. Walton J then dealt in considerable detail with the events of the evening of 11 December 2008 and the impugned conduct. In doing so, his Honour made factual findings as follows: (1)The party table was arranged on the front verandah section of the restaurant in an L-shape and was the only table on the verandah. (2)Even though the restaurant was well lit, members of the public walking outside (to the extent there were such persons) could not have observed activities within the verandah of the restaurant with sufficient clarity to witness and/or apprehend the impugned conduct. (3)There was a conversation about tattoos and piercings. The respondent revealed he had a 'party trick' (that is, the penis piercing) which he would "normally do in some sort of closed company" with people he knew and was socialising with. (4)The respondent was in the toilet for approximately 5 to 10 minutes and inserted the 'ring', which was attached to the bottle opener, through the aperture (which was the piercing) of his penis. The respondent conceded it was his intention to show the 'party trick' but not necessarily to open a beer bottle. (5)The respondent stood up to carry out the 'party trick' in the first occurrence. The respondent then unzipped his trousers and exposed his penis with the ring and the bottle opener attached. (6)The following persons witnessed the first occurrence: SC Pope, SC Gosper, SC Sippel, SC Hardwick, Mrs Lawrance and Mrs Pope. (7)The respondent was well affected by alcohol when he engaged in the first occurrence of the impugned conduct. (8)Some time later in the evening, the respondent was involved in a second occurrence of the impugned conduct. (9)The following persons witnessed the second occurrence: SC Pope, SC Gosper, SC Hardwick, Mrs Pope and Mrs Lawrance. (10)Despite the respondent's efforts at non-disclosure, persons other than the respondent's intended audience may have witnessed the impugned conduct. Given the nature of the conduct, exposure to it offered the real potential for offence. (11)In the second occurrence, the respondent removed his penis from his trousers with the bottle opener attached and opened SC Pope's beer bottle. (12)The respondent was standing when he engaged in the second occurrence of the impugned conduct. (13)It is possible the impugned conduct occurred on a third occasion. (14)Even though the evidence only permits a conclusion that the actual exposure to the conduct was limited to certain members of the party, this conclusion does not remove from consideration the risk of exposure beyond the intended audience of party goers which exposure may, given the nature of the conduct, have caused offence. (15)The restaurant was well patronised on the night and that, taking into account the respondent's evidence (and my finding as to him being a witness of credit) as well as statements corroborating his account, the police Christmas party table was the only one situated on the verandah. (16)Patrons of the restaurant, other than those attending the party, were not present at any time during the impugned conduct. There was no real or appreciable risk that a person, other than a member of the party or staff, observed the impugned conduct. (17)The restaurant proprietor did not witness the conduct. There was no evidence that a member of the restaurant's staff witnessed the conduct. (18)The following people definitely witnessed one or other occurrence of the impugned conduct: SC Pope, SC Gosper, SC Hardwick, SC Sippel, Mrs Lawrance and Mrs Pope. They did not take offence to the respondent's conduct and treated the behaviour as a form of entertainment - laughing and joking about the respondent's 'party trick'. Some of them encouraged the conduct. (19)The true nature and impact of the conduct forced some members of the party to remove themselves, not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable. 8Walton J found there had been three previous incidents where the respondent had performed his "party trick". The first occurred in a nightclub in 2002 after the cessation of a Christmas party: [240] ... The applicant was at the nightclub with three other serving police officers (holding respectively the ranks of Superintendent, Sergeant and Constable). He displayed his piercing to those persons in a room or section of the nightclub in a similar fashion to the Wanaaring incident. Other patrons were present but could not see the applicant's display, which took place over a matter of seconds. It was never suggested to the applicant that his conduct that evening was unacceptable. Of the persons observing the conduct, two officers remain in service (holding the ranks respectively of Assistant Commissioner and Inspector). 9The second occurred when the respondent: [241] ... attended a gathering of Sergeants (there was one Senior Sergeant) in a closed-off section of restaurant after the Sergeants' Course held in Goulburn. The officers were sitting in a circle "telling dirty jokes" in order to, apparently, entertain each other. For his contribution, the applicant undertook the 'party trick', but with a room key attached to his penis through his piercing. His performance lasted a matter of seconds, was met with laughter and encouragement. There was no complaint made at the time or thereafter. There was certainly no disciplinary action taken as a result of the conduct on that occasion. 10The third was referred to as the "Wanaaring incident". This occurred in the Wanaaring Hotel in September 2005. It was described by the primary judge thus: [230] ... The applicant, who was off duty at the time, played pool with Christie Pinnuck, Kylie Pinnuck and Margaret Hines. The applicant had a friendship with the women. A conversation arose about tattoos and body piercings that each of them had. Christie Pinnuck asked to see the applicant's 'Prince Albert' piercing and they went to an area in the hotel near the poker machine wall with a view to avoiding public observation. The applicant then undid his fly and removed enough of his penis to show her his piercing. He was wearing a ring at the time. This occurred for a matter of seconds and, as the evidence reveals, both laughed before returning to the other women at the pool table. Ms Pinnuck took no offence. The applicant stated he was not intoxicated. 11In relation to the Wanaaring incident, the respondent underwent counselling. The content of that advice and guidance consisted of the following (at [235]): This form should be seen as a notification that you had been given advice and guidance for work related matters, or lapses in behavioural expectations or responsibilities. Action to improve your performance level is to be initiated. You are to fully participate in any action, which is specifically designed to enhance your workplace performance. The agreed improvements to be achieved are: The Sergeant is to be mindful that conduct both on and off duty, has the potential to adversely impact upon the credibility of a Police Officer, the Local Area Command and the Police organisation as a whole. 12At [238] Walton J stated: [238] The applicant accepted that the circumstances of the Wanaaring conduct and the fact that it gave rise to an investigation should have made him more aware of the adverse consequences of performing his 'party trick' on 11 December 2008. Ms Lowson submitted that, in terms of the available range of discipline or remedial action, it was at the lower end of available approaches. This must be correct. ... 13Walton J observed that the respondent relied on 15 character references in his submissions to the Commissioner. They included 12 references from senior or supervising officers in the Police Force. His Honour noted the referees "speak very favourably of the [respondent] both as to his personal character and value to the Police Force." 14At [247]-[251] Walton J dealt with the respondent's attitude to his misconduct. The primary judge noted that the respondent displayed "what appears to be a dichotomy in his thinking between a limited comprehension of the inappropriateness of his conduct to a quite significant recognition of his wrongdoing and (as later displayed) a desire for its rectification." The primary judge stated: [251] These considerations raise questions as to whether the applicant had demonstrated remorse and contrition in the light of a proper appreciation of his misconduct. This bears further upon the question as to whether the applicant would be likely to behave in a similarly inappropriate manner in the future. ... 15His Honour next dealt with the contribution of alcohol to the respondent's misconduct. In this respect, his Honour found: [252] ... The applicant had started drinking beer, 'XXXX Gold' (mid-strength), and then consumed wine with his meal followed by cans of rum mixers. In fact, he had consumed overall at the restaurant approximately six bottles of beer, a bottle of wine and six cans of rum (the precise quantity consumed at the time of the impugned conduct is unclear, but it is plain that the applicant was intoxicated). ... [256] ... Ms McCartney's report (which was not the subject of cross-examination) offers support for the contention that alcohol did contribute to the applicant's behaviour on the evening of 11 December 2008 by impairing his judgment and perspective of his wrongdoing. I am not merely referring, in this respect, to the typical effects of excessive alcohol consumption arising from binge drinking, but to the broader impact of alcohol on the applicant's life arising from a sustained pattern of excessive consumption of alcohol: what colloquially might be called an "alcohol or drinking problem". The problem constituted a lack of awareness of how alcohol was adversely affecting his behaviour in his work, family and social life, and the acts or omissions undertaken commensurate with that lacuna in judgment. ... [259] ... [A]n element of the applicant's behaviour involved self determination, probably driven by a desire to engage in the exhibition he ultimately undertook, and that he did so, contrary to what maybe reasonably expected of an officer of his seniority. [260] A balancing of these considerations properly results, in my view, in a conclusion that alcohol was a contributing factor in the applicant's behaviour. However, that factor cannot wholly justify or excuse this behaviour, and must simply constitute a mitigating factor which will be taken into account in the consideration of the applicant before the Commission. ... [262] ... Ms McCartney reported that, by the test conducted on 21 September 2009, the applicant had a "low current risk of experiencing problems due to the hazardous consumption of alcohol". She also indicated that the applicant had made significant progress from April to September 2009 in changing his alcohol related behaviour and attitudes. 16Walton J next addressed the Commissioner's reasons for removal of the respondent and summarised the submissions of the parties. 17In his Consideration, Walton J first dealt with the Commissioner's reasons for removing the respondent. In that respect, his Honour found that: (1) he was not satisfied that the Commissioner adequately took into account the character references relied upon by the respondent as part of his case; (2) the combination of the respondent's detailed account of his alcohol problems, which were operative on the evening in question, when buttressed with the report of Ms McCartney, required specific recognition and evaluation in the reasoning process. This is not adequately dealt with in the reasons. (3) the Commissioner stated that he was "very concerned" that the respondent engaged in the impugned conduct in the face of that "specific memorandum" issued prior to the party, which highlighted the responsibilities and standards of behaviour (including off duty behaviour) expected from officers during the festive season. The Commissioner also stated that the respondent had appeared "to have blatantly disregarded" the warning. None of this gave any recognition of the respondent's submission that he did not receive the document in question and had never received a document of that kind. 18In reviewing these procedural deficiencies, Walton J stated: [287] There is, in this case, an admitted act of misconduct, accompanied by a relevant prior incident of misbehaviour by the applicant ... which, in my view, obviates against any determination of the application for review based upon procedural failures in or related to the Reasons alone. These factors are properly considered as part of the overall consideration of the merits of the review application and in the light of a consideration of the substance of the Reasons ... 19As to the gravity of the respondent's misconduct, the primary judge concluded it did not fall within the worst class of cases coming before the Commission. On the other hand, the conduct could not be described as lying in the lower end of the scale of seriousness. 20As to the contribution of alcohol his Honour concluded that in the light of the respondent's alcohol problem, consumption of alcohol on the evening in question was a mitigating factor, but not one that could wholly justify or excuse his behaviour. Insofar as the respondent's behaviour was driven by alcohol consumption, there had been rehabilitation with good prospects of a lasting modification to his behaviour. This was a matter that did not receive sufficient recognition in the Commissioner's Reasons but was a matter that required attention as part of the fresh and independent review. 21As to the character evidence, Walton J found it had two implications: [314] ... First, in relation to the question of harshness, it provides a testament to the applicant's past good conduct and service to the Police Force, given in the clear knowledge that the applicant had engaged in an act of misconduct. These statements also lend support to the notion that the applicant may still play an ongoing, productive role within the Police Force. Secondly, the references are relevant to the question of the practicability of reinstatement or re-employment, with the character evidence offering clear support in favour of a positive finding in that respect. 22The primary judge also found that: [315] The applicant's record, apart from the blemish in 2006, was a very good one. He provided good service, including in the western areas of New South Wales, and received commendations and promotions. He obtained senior rank and executed senior duties. But for the incident in 2006, I would have accepted Ms Lowson's submission that the applicant's conduct was exemplary. Nonetheless, a very favourable view of his service record must be formed. 23His Honour considered the impact on the respondent and concluded the respondent (at [316]): [H]as suffered personally, financially and in his career as a result of his poor judgment. There has been a significant stigma deriving from the events of the evening in question and his removal (fuelled, no doubt, by a media report at the time of the original investigation and subsequent reporting). The consequences for him were quite severe and his prospects for an alternative career must be treated as remote, given the history of his employment following his removal. I consider that the impact upon him is sufficiently severe that this should be a factor taken into account in mitigation. 24At [317]-[320], Walton J considered the requirement to balance the interests of the respondent with those of the public interest under s 181F(3). In that respect, the primary judge stated: [319] Here, there is required a balancing of considerations between the Commissioner's determination, the maintenance of the integrity of the Police Force (by the upholding of appropriate standards, even in off duty situations) and the elimination of conduct which may bring the Police Force into disrepute (such as the impugned conduct), and, the maintenance of the service of a highly trained officer who has the strong support of his colleagues (because of his performance in the Police Force) and who is capable of providing valuable service to the Police Force in the future. This is also a case where the subsequent rehabilitation of the officer has the real potential to eliminate the very conduct (or conduct of that type) which caused the Commissioner to lose confidence. The interests of the applicant are reflected in his desire to rectify or ameliorate the very significant detriment in terms of his finances, career and reputation he has suffered as a consequence of the removal. [320] A further factor is relevant to the public interest. Given the manner in which the community is often vexed by problems associated with alcohol, it is in the public interest, in my view, that encouragement be given to genuine efforts of rehabilitation which have the prospect of a lasting modification of misbehaviour deriving from such infirmities. This approach cannot, of course, be without limits as the seriousness of the misconduct may represent a barrier to such a consideration applying in a particular case of alcohol related behaviour. I do not, however, consider that this is such a case. 25At [321]-[326] his Honour stated his conclusion about whether the determination to remove the respondent was too harsh a penalty. His Honour decided, "by a fine margin", that the removal of the respondent was harsh having regard to the degree of seriousness of the respondent's misconduct and the "strong mitigating and other ameliorating circumstances" in favour of the respondent, some of which were not given due consideration in the Reasons for Removal. 26In referring to a number of significant mitigating or ameliorating factors in favour of the respondent, Walton J stated: [325] I have been particularly influenced ... by my conclusion as to the applicant's rehabilitation with respect to his alcohol problems and the prospect of a longstanding modification to his behaviour, such that the factors which led to a loss of confidence have been essentially eliminated. To this consideration may be added the confidence of his fellow officers, of senior rank and position, that the applicant will make a valuable contribution to the Police Force in the future; the applicant's genuine appreciation of the inappropriateness of his conduct, for which, on a proper evaluation of his evidence, he has expressed remorse and contrition: Toshack [at 75] and the detriment he has suffered to his finances, career and reputation (which, no doubt, have also contributed to the reappraisal of his behaviour). I do not consider that the public interest considerations arising under s 181F(3) warrant any contrary conclusion when properly assessed and balanced as to their competing elements and the interests of the applicant. 27Having found that reinstatement was impracticable, the primary judge determined that the respondent should be re-employed as a Senior Constable. In that respect, his Honour noted: "The parties were unable to identify any issue, as to power, that might preclude an order of that kind being made in these proceedings. I concur with that view." 28In ordering re-employment, Walton J stated: [341] ... There is a confident basis for the restoration of the applicant's prior good service with the NSW Police Force without repetition of conduct of the type which has led to these proceedings. Additionally, I consider the integrity of the Police Force is maintained and protected by the public recognition of the applicant's misconduct, the confirmation of the applicable codes or standards for off duty behaviour and the restoration of service at a lower rank with conditions. 29His Honour also imposed three conditions pursuant to s 89(8) of the Industrial Relations Act 1996 ("the IR Act"): (1) conditions should be imposed to monitor and control the respondent's alcohol practices for a specified period of time (see Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44); (2) no opportunity for promotion for a period of 12 months; and (3) the respondent receives a final written warning as to any future misbehaviour. 30The parties were provided with an opportunity to make submissions on the appropriate form of orders. Those submissions were considered by his Honour in Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173. The final orders were as follows (at [12]): 1. The Commissioner of Police shall re-employ Andrew Lawrance as a Senior Constable, Level 5, Step 1 effective from 3 December 2010 in a position to be determined by the Commissioner of Police. 2. The period from the date of removal to the date of re-employment will not count as service for any purpose (and the applicant will not be entitled to any payment for that period), but will not break continuity of service for the purpose of calculating leave entitlements. 3. To the extent Andrew Lawrance was paid, on removal, for leave entitlements accrued prior to that date, the leave will not be re-credited unless the applicant repays the relevant payments. 4. The re-employment of the (sic) Andrew Lawrance is subject to the following conditions: (a) When he is on duty (as distinct from being rostered on duty), he will submit to testing by an authorised person for the presence of alcohol at least once per year; (b) He is not necessarily to be given notice of the time of testing; (c) He may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person; (d) Any testing is to continue for such period he remains a member of NSW Police Force or a shorter period as determined by the Commissioner of Police; (e) He will not be eligible for promotion before 4 December 2011; and (f) He will receive a final written warning in a form determined by the Commissioner of Police, as to any future behaviour. Appeal grounds/Appellant's submissions 31Whilst there were 19 grounds of appeal in the amended application for leave to appeal and appeal, and extensive written submissions that addressed both the question of leave to appeal and the merit issues, senior counsel for the appellant helpfully encapsulated in his oral submissions, the appellant's position in the appeal under seven grounds, namely, that the primary judge erred: (1) in failing to have proper regard to the innate seriousness of the respondent's misconduct; (2) in finding the respondent was genuinely contrite and remorseful; (3) in failing to pay proper regard and given proper weight to earlier episodes of misconduct; (4) in accepting that an "alcohol defence", whether such be characterised as an "excuse" or as an "explanation", was available at all and in finding that such a defence was made out on the evidence, in the sense that a causal connection was established; (5) in relation to the weight to be given to the public interest factors identified in s 181F(3)(b) of the Police Act in light of the Court of Appeal decision in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198; (2009) 185 IR 458 (" Sewell ") at [77]; (6) in finding there was power to order re-employment to a lower level; and (7) even if there were power, in finding that there was a proper basis for the making of that order, especially in light of his Honour's finding it was impracticable for the respondent to be reinstated as a Sergeant. Respondent's submissions 32The respondent dealt with each of the appellant's grounds and, in summary, submitted: (1) the primary judge did not err in relation to the nature of the misconduct. Given the concession by the appellant at first instance that this conduct did not fall within the most serious category of cases that come within the Commission and given that Walton J found that the misconduct did not fall within the lowest category of seriousness it is difficult, if not impossible, to see what error the judge is alleged to have made. The finding that the seriousness of the misconduct fell somewhere along the spectrum other than at the lowest end or at the most serious end, is not a finding of fact which is clearly wrong, nor is it a finding of fact that was not reasonably open on the evidence; (2) there was no error by the primary judge in relation to contrition and remorse. His Honour dealt with this issue comprehensively and it was properly taken into account as a mitigating factor; (3) the manner in which his Honour dealt with prior misconduct disclosed no error: see Lawrance at [300]-[302]. The appellant did not suggest that the response to the Wanaaring incident was wrong in any respect, leaving it well open to the judge to conclude that the shift from guidance and counselling notice, to removal under s 181D, might disclose some lack of coherent discipline. The appellant did not articulate why the prior misconduct should have been accorded any different weight, to the point of establishing an error that would involve the intervention of the Full Bench; (4) the appellant's submissions regarding the "Alcohol Defence" are a distortion of both the case put by the respondent at first instance, and the treatment of that issue by the primary judge. As recorded in the decision at [253]: "It was submitted for the [respondent] that he had not advanced the consumption of alcohol as an excuse, but as an 'explanation' and that the role of alcohol had been to impair his judgment and reduce inhibitions that might otherwise militate against such misbehaviour." The respondent did not rely on his alcohol consumption to excuse or defend his conduct. There was otherwise evidence available to conclude that alcohol had contributed to the incident occurring. This was not limited to general conclusions concerning the disinhibiting effects of alcohol, but were found in the report by psychologist, Wendy McCartney, tendered without objection and without Ms McCartney being required for cross-examination. The appellant incorrectly characterises Walton J's treatment of the respondent's admitted alcohol consumption as involving a mitigation of the seriousness of the conduct. Whilst this may have been a small part of the way in which the alcohol consumption was viewed, the focus of Walton J was on rehabilitation and risk of recurrence. There is no inconsistency in, on the one hand, disavowing using alcohol consumption as an excuse for behaviour, and on the other, recognising that alcohol consumption, and indeed a wider alcohol/drinking problem contributed to his conduct and needed to be addressed on a broader level. (5) the appellant's submission concerning treatment of the issue of public interest is without merit: see Sewell at [73]-[77]. The submission presumes that public interest considerations are limited to one side of the assessment process - that is, against the interests of the respondent. The concept of the public interest will rarely be unitary in nature. The appellant's submissions amount to little more than a complaint about the conclusion reached by Walton J. The complaint is made in circumstances where the appellant made no submissions about the public interest, integrity of the Police Force, or the way in which these matters should have been weighed at first instance; (6) in respect to the challenge to the power to order re-employment, the appellant did not take this point at first instance, and indeed put a contrary position to the trial judge. The appellant should not be allowed to raise the matter on appeal. In the alternative, the appellant has not identified in what way a decision to re-employ at a lower rank offends s 89(2). The fact that this sub-section, unlike sub-section 89(1), does not specify that such re-employment is to be "not less favourable" is destructive of the appellant's argument. The appellant assumes that the decision to re-employ constitutes punishment, ignoring the fact that the facility to re-employ at a lower level is wholly consistent with the jurisdiction imposed on the Commission to consider an alternative remedy if reinstatement is found to be impracticable. In this case the reduction in responsibilities associated with re-employment at a lower rank accommodates the concerns that led the Commission to conclude that reinstatement was impracticable. Further, although the Police Act specifically excludes the operation of some parts of the unfair dismissal regime in the IR Act, it does not exclude s 89(2). The reference by the appellant to Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 appears to imply that the introduction of some part of the Police Act impliedly repeals s 89(2) of the IR Act. There is no support for this proposition in Ferdinands , which involved different legislation to that operating in this jurisdiction; (7) the decision to order Mr Lawrance's re-employment as a Senior Constable involved an exercise of discretion on the part of the judge at first instance, and accordingly a different, and even more stringent approach to the appeal applies: see Mace v Murray [1955] HCA 2; (1955) 92 CLR 370. Walton J specifically referred to the responsibilities of a Sergeant in performing duties as Station Manager or Shift Supervisor when deciding that re-employment as a Senior Constable was the appropriate remedy. There is no basis to suggest that his Honour was not mindful of the responsibilities of a Senior Constable, neither can it be suggested that those responsibilities are the same as those of a Sergeant. There is no error in his Honour concluding that the immaturity of character displayed by the respondent in engaging in the misconduct : (a) Made reinstatement to the rank of Sergeant impracticable; (b) Did not preclude re-employment as a Senior Constable; It is unfair for the respondent to have to deal with these matters freshly on appeal, when the appellant chose not to detail any reasons for his submission below. In any event, the arguments are without merit. Leave to appeal 33The appeal involves, amongst other issues, the question of the Commission's power to order the re-employment of a former Police Officer at a lower rank. That is a matter that has not previously been determined in this jurisdiction at appellate level. Although the respondent is correct in submitting the appellant at first instance accepted that the primary judge had the power to order re-employment to a lower rank, on appeal the Commission cannot assume a statutory power it does not have based merely on the concession of a party at first instance. Moreover, it does not appear to us the respondent is in any way prejudiced and this is not a case where evidence could or would have been led bearing on the question of power had the appellant indicated there was no power to re-employ at a lower level when the matter was raised with the parties. 34It is a matter "of great importance in the conduct of litigation that a litigant should be bound, on appeal, by the manner in which his case has been conducted at first instance": Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 at 19-20 per Wilson and Dawson JJ, citing McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284 at 305 and Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 at 483. However, regard must be had to the circumstances of the case: Babaniaris at 20. In this case a serious question has arisen as to whether the Commission had the power to order re-employment and that is a matter that may not be disregarded on appeal. 35The respondent referred to Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; (2010) 194 IR 144 at [97] where Kavanagh J (Boland J, President and Walton J, Vice-President not disagreeing on this point) cited several authorities dealing with the principles to be applied if a different case is sought to be litigated on appeal to that which was litigated at first instance. Those authorities, however, are not inconsistent with what we have said in the immediately preceding paragraph. 36We propose to grant leave in respect of the question of the Commission's power to order the re-employment of a former police officer at a lower rank. 37In considering the question of leave regarding the other matters raised on appeal, we have decided to also grant leave in respect of them. The decision at first instance addressed important aspects of the applicable law and the Commission's jurisprudence concerning the removal of police officers. A consideration of those aspects at appellate level may assist in settling any ambiguity or uncertainty and reduce the incidence of appeals in this area. Principles governing appeal 38This is an appeal in the strict sense: s 191 of the IR Act; King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [65] et seq and the authorities referred to therein. That is to say, it is an appeal to a tribunal the function of which is to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given. 39In Abboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32 at 43-44, the Full Bench described the role of an appellate tribunal in an appeal stricto sensu : In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or are not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. 40The question of whether removal of a police officer was harsh involves mixed issues of fact and law, rather than the exercise of a discretion: see Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182 and Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [4]. Accordingly, the Full Bench is in as good a position as the primary judge to assess the evidence and the findings of fact and inferences to be drawn from that evidence so as to evaluate whether there was any error of law or principle in the conclusion that the removal was harsh: see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. 41If a consideration of the circumstances relating to the removal of the police officer leads to a decision favourable to the dismissed employee then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed: Burge at [4]. That is to say, the decision to order Mr Lawrance's re-employment as a Senior Constable involved an exercise of discretion on the part of the judge at first instance, and accordingly the principles enunciated in Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 apply (at 378): The jurisdiction of this Court is to review the decision of the Full Court, applying to the case the principles that were applicable by that court, and, if necessary, to make such order as the Full Court should have made. The principles to be applied in such a case are not in doubt. The order of the learned primary judge was made in the exercise of a discretionary judgment; and it has been repeatedly laid down by this Court, following decisions of the highest authority in England, that in such a case a court of appeal is not justified in interfering with the decision appealed from unless it reaches a clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a view different from that which the judges of the court of appeal would have taken if they had been in his place, but has failed properly to exercise the discretion committed to him: House v. The King [1936] HCA 40 ; (1936) 55 CLR 499 , at pp 504, 505; Lovell v. Lovell [1950] HCA 52 ; (1950) 81 CLR 513 , at pp 518-520, 526, 528, 532-534; Pearlow v. Pearlow [1953] HCA 77 ; (1953) 90 CLR 70 , at pp 76, 77; Paterson v. Paterson [1953] HCA 74 ; (1953) 89 CLR 212 , at pp 218-224. Moreover, the order of McLelland J. was made with the advantage of having seen and heard the witnesses, and particularly the parties, as they were examined and cross-examined in the witness-box; and that was an advantage not only in considering the credibility of the witnesses but also in appreciating the character and personality of each of the three persons whose future relationship to the child the court had the responsibility of deciding. The case was pre-eminently one for the application of well-known words originally used by Lord Shaw and since approved by other learned lords: "In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself ... the question: Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment": Clark v. Edinburgh & District Tramways Co. Ltd. (1919) SC (HL) 35 , at p 37; see Powell v. Streatham Manor Nursing Home (1935) AC 243 , at p 250; Watt or Thomas v. Thomas (1947) AC 484 , at p 488. 42Heydon JA (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 said, at [45], that a challenge to a primary judge's discretionary decision can succeed only if the judge: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 43We propose, with respect, to follow these established principles. Seriousness of the misconduct 44In attacking the primary judge's findings regarding the seriousness of the respondent's misconduct, the appellant submitted the following propositions: (i) the primary judge erroneously did not consider that the earlier Wanaaring incident - the respondent exposing his penis in the public bar of the Wanaaring Hotel - as "so grave" that its repetition "of a somewhat more significant character" necessitated s 181D removal; (ii) his Honour placed too much weight on the fact that, in his Honour's view, only a small number of people at the restaurant actually witnessed the "trick" , as this did not alter or lessen the innate offensiveness and seriousness of this public indecency; (iii) as to those factors identified by his Honour as "adding to the gravity of the misconduct" : (a) his Honour did not evaluate the respondent's conduct by reference to the special character of his employment and the need for discipline and high repute . His Honour should have concluded, but did not, that the respondent's position as a senior Police Officer was an "aggravating" factor, rendering the misconduct more serious than it might otherwise be regarded if engaged in by a person not following the "calling" of the Police Force; (b) by concluding that in the absence of charges being laid against the respondent the most that may be said of that matter is that the respondent may have, in other circumstances, attracted attention under the Summary Offences Act ( s 5), his Honour understated the unlawfulness of the conduct - especially as there was clear evidence of "offence", and the fact that it was only good luck (versus good management) that the respondent was not charged with a criminal offence; (c) in stating there were "some elements of incompatibility between the [respondent's] conduct and his duties" his Honour seriously understated the level of that "incompatibility" between the respondent's conduct and his duties and his position as the most senior officer at the Christmas party; (d) in finding "one of the episodes (the second occurrence) involved opening a bottle with the bottle opener attached to the respondent's penis (irrespective of whether the penis could be seen or not) does tend to elevate the seriousness of the misconduct", his Honour erred in understating the obvious offensive, bizarre and serious nature of this misconduct; (e) his Honour found that "the impugned conduct occurred as a result of a deliberate step being taken by the [respondent] to prepare for the 'party trick', but only in the sense that the [respondent] had clearly decided, after his discussion with other guests, to carry out the 'party trick'. To that extent, the conduct was not strictly a 'spur of the moment' act and this is indicated by the amount of time taken to prepare for the 'party trick' ... Whilst the [respondent's] conduct does involve elements of self-determination and gratification, at least to the extent of providing entertainment for friends and colleagues, this case bears none of the hallmarks of Morgan v Commissioner of Police ". However, his Honour's own findings can only lead to a conclusion that the respondent's conduct involved a deliberate and knowing breach of applicable rules and standards of fundamental importance and also ruled out, contrary to his Honour's further finding, acceptance of a submission that conduct was not "premeditated" (versus " spur of the moment " ); (iv) his Honour erroneously downplayed the significance of the 2005 incident and two further earlier incidents of public indecent exposure, on the untenable basis that the respondent had, in effect, "got off lightly" with respect to the Wanaaring incident, and the two prior occasions had not been the subject of any action by the appellant, respectively; (v) his Honour found that "the conduct engaged in by the [respondent] could not be described... as lying in the lower end of the scale of seriousness. Beyond that, I do not consider it is helpful for the Commission to engage in a process of specifying where the misconduct lies in a theoretical range of the gravity of misconduct unguided by judicial authority to that effect in this area of jurisprudence. Rather, I will consider that matter in the final mix of considerations as to whether there was harshness in the removal of the [respondent]". In this respect, his Honour erred not only in understating the seriousness of the misconduct by reference to the real world "scale of seriousness" but he also demonstrated a confusion between a proper and necessary (separate) assessment of the seriousness of the misconduct and the separate question of whether the removal of the respondent was "harsh" in all the circumstances: see Director of Public Employment by his Agent Director-General of Dept of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221 at [57]-[74]. His Honour's confusion and error in this regard is further confirmed by his later conclusion as to "seriousness" reached following a "proper balancing of the factors described in para [296]" of his decision; (vi) in addition his Honour erred in that he failed to afford any, or any sufficient, weight to the following "potent considerations", namely: (a) his Honour erred in not treating the Respondent's status as a senior officer in the Police Force as an "aggravating" factor in considering the seriousness of the misconduct; (b) any person (let alone a Sergeant of Police) pulling out his penis in a public place is a fundamental affront to community values/standards, criminal conduct and conduct to be rejected as totally repugnant; (c) both the obviousness and the seriousness of the propositions in (a) and (b) above is reflected in the fact that Australia wide research suggests that there has only been one occasion wherein a male worker who has "exposed" himself has been reinstated (and then mental condition was said to have been involved); (d) this was not "one off", "aberrant", "out of character" behaviour by a junior police officer, but planned/deliberate behaviour by a Sergeant of Police (and the most senior officer at the restaurant/party) who had not only engaged in such public indecent exposure on several prior occasions, but also been formally counselled about the total unacceptability of that behaviour only two years earlier; (e) the respondent's inability to grasp the seriousness of the misconduct that he engaged in was a matter that clearly troubled His Honour, yet such concerns were not then properly taken into account when assessing the seriousness of the misconduct and impracticability of re-employment (based, inter alia , on an erroneous conclusion that there was a "confident" basis that the cause of the misconduct had been eliminated); (f) his Honour failed to focus on what, in particular, was required to ensure that the "public interest" in "maintaining the integrity of the New South Wales Police Force" was properly taken into account, and failed to pay proper regard to the fact that the community would regard such public "exposure" as entirely unacceptable. 45The thrust of the appellant's submissions regarding the seriousness of the misconduct was to attempt to portray that misconduct in the worst possible light. The misconduct was said to be "innately serious", "extremely serious", a "fundamental affront to community values/standards", "criminal conduct", "conduct to be rejected as totally repugnant" and "a deliberate and knowing breach of applicable rules and standards of fundamental importance". It is evident that the appellant wishes the Full Bench, in judging the misconduct according to the "real world ' scale of seriousness '", to regard it as being of the worst kind. 46This portrayal is at odds with the appellant's position at first instance where it was volunteered by the appellant that the misconduct "did not fall within the worst class of cases of this kind coming before the Commission" (at [308]). His Honour accepted that concession. In that circumstance it could not reasonably be expected this Full Bench would find, without question, that his Honour erred by not classing the misconduct as being of the worst kind. 47It, therefore, becomes necessary to examine each of the matters in respect of which the appellant contended the primary judge erred. We commence by dealing with each of the appellant's complaints regarding seriousness. Implications of the Wanaaring incident 48The primary judge found at [323]: [323] ... The past misconduct, which is principally confined to the Wanaaring incident, must add to the seriousness of the misconduct in the sense that the applicant had previously been counselled against similar conduct. However, the prior misconduct was not so grave that its repetition, by a subsequent act of a similar character (or of a somewhat more significant character in this case), must result in removal under s 181D. In any event, the Police Force's approach to discipline for the past misconduct does tend to indicate that the penalty chosen on this occasion may, by comparison, be too severe. 49What the appellant asks the Full Bench to accept, in effect, is that because there were prior incidents of a similar (but less significant) character that must mean the December 2008 incident warranted removal under s 181D and that his Honour erred in failing to find that was the case. That is no basis upon which to conclude there was an error of fact warranting intervention by this Full Bench or that his Honour drew a wrong inference from the facts. His Honour found the Wanaaring incident added to the seriousness of the misconduct, but not such that it warranted removal. That finding was completely open to his Honour. Small number of people witnessed the "party trick" 50The primary judge found it was relevant that the impugned conduct was witnessed by a confined group of persons and that the persons in that group did not take offence at the behaviour. His Honour qualified that by noting his finding that there was a risk of exposure to the impugned conduct. 51The appellant's complaint was that his Honour erred because he placed too much weight on the fact that only a small number of people actually witnessed the " party trick " . In other words, it did not matter how many persons saw what happened; that did not lessen the innate offensiveness and seriousness of what occurred. 52We think the appellant misunderstood his Honour's finding. The point his Honour was making was that those who witnessed the event were confined to those who wished to see the "party trick" and those persons did not take offence. His Honour was entitled to reach such a conclusion on the evidence. 53As to the appellant's contention that the more important test in assessing the gravity of the misconduct was the risk that a much wider group of unwilling participants could have been exposed to it, his Honour found at [210](7): This does not mean that there was not a real risk that other persons attending the party may have witnessed the conduct and, by the very nature of the conduct, found it offensive. The applicant did not have sufficient knowledge of the whereabouts of other attendees or control over their movements (or their access to him) to fully remove or avoid that risk. However, I do not consider there was a risk of patrons of the restaurant, not attending the party that evening, witnessing the impugned conduct, as they had departed by the time the behaviour commenced. 54Thus, his Honour recognised the risk of others witnessing the incident and clearly took that into account in assessing the seriousness of the misconduct. Factors adding to the gravity of the misconduct 55The first such factor identified by the appellant was that the primary judge failed to consider that the respondent's position as a senior Police Officer was an "aggravating" factor, rendering the misconduct more serious than it might otherwise be regarded if engaged in by a person not following the "calling" of the Police Force. The appellant relied on a "schedule of criminal law cases" supporting the proposition that the position held by the respondent was an aggravating factor to be taken into account: for example, see Wright v R (No 2) [1968] VR 174 at 181. 56As the respondent submitted, the schedule of criminal cases were not put before his Honour at first instance, notwithstanding that his Honour specifically raised, at least with the appellant, whether there were any authorities supporting the matter relied upon by the Commissioner of Police, namely, that the respondent's rank of Sergeant was an aggravating factor in assessing the seriousness of the misconduct. No authorities were forthcoming. Nevertheless, the appellant was entitled to refer to authorities supporting his case, although reliance on them does not lead us to conclude his Honour erred. 57At [296](a), in the context of identifying those factors which were, "in sequence, those adding to the gravity of the misconduct and those which mitigate or ameliorate", the primary judge commenced with the following: Further, the Commission should evaluate the conduct of police officers having regard to the special character of their employment and the need for discipline and high repute: (see the minority judgment of Kirby J in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [113]). 58There is no basis for the contention that his Honour "did not, thereafter, in fact, evaluate the Respondent's conduct by reference ..." to the fact that his Honour was dealing with a senior police officer. His Honour was conscious throughout he was dealing with a person holding the rank of Sergeant. His Honour acknowledged the need to evaluate the respondent's conduct having regard to the special character of his employment and the need for discipline and high repute. Further at [296](d), his Honour stated: The fact that the applicant held a senior rank and was responsible for a number of junior officers who attended the Christmas party, in my view, is a factor which adds to the seriousness of the misconduct. I agree with the Reasons in that respect. 59The appellant has not established a basis on which the Full Bench should intervene because of any failure by the primary judge to have regard to the special nature of the respondent's employment. 60It was next submitted Walton J understated the unlawfulness of the conduct having regard to the offence of obscene exposure under s 5 of the Summary Offences Act 1988. His Honour observed at [296](b) that: [I]t appears that, in the absence of charges being laid against the applicant, the most that may be said of that matter is that the applicant may have, in other circumstances, attracted attention under the Summary Offences Act (s 5) and that the statute offers some guide, in these proceedings as to community views about what may constitute offensive behaviour. 61No charge was laid against the respondent under the Summary Offences Act or any other statute. The appellant contended that was because of "good luck" rather than good management for the reason that the respondent's: [J]unior officers and their wives/partners were obviously not going to agree to be witnesses in criminal proceedings (or in these review proceedings) and say that they were offended by his "party trick" , knowing too well the consequences that that would, or could, have for the Respondent, but also for the junior officers themselves, a matter admitted by the Respondent himself. 62As the respondent observed: [A] number of the witness statements tendered by the appellant [before Walton J] were from junior officers and had they been required by the respondent for cross-examination, they would have become witnesses giving oral evidence in the review proceedings. The inference to be drawn from the appellant's submission is that the appellant believes that his own witnesses at first instance were not truthfully disclosing matters including any "offence" at the respondent's conduct. 63The fact is the appellant decided, for reasons of his own, not to prosecute the respondent for a criminal offence. It cannot now contend that despite that failure to prosecute the Full Bench should, in effect, regard the respondent's conduct as being the equivalent of him having been charged and convicted under s 5 of the Summary Offences Act and, as Walton J had not found to that effect, his Honour had erred. The reliance on the "good luck" proposition takes the appellant nowhere. 64Walton J did not err in making his finding at [296](b). 65It was next submitted the primary judge seriously understated the level of "incompatibility" between the respondent's conduct, his duties and his position as the most senior officer at the Christmas party. There is no substance to this contention. His Honour agreed with the Commissioner that the respondent held a senior rank and was responsible for a number of junior officers who attended the Christmas party and that this was a factor that added to the seriousness of the misconduct. 66At [296](i) the primary judge made the following finding: (i) I accept the submission of the Commissioner (and his reasons in this regard) that the impugned conduct occurred as a result of a deliberate step being taken by the applicant to prepare for the 'party trick' but only in the sense that the applicant had clearly decided, after his discussion with other guests, to carry out the 'party trick'. To that extent, the conduct was not strictly a 'spur of the moment' act and this is indicated by the amount of time taken to prepare for the 'party trick'. However, to suggest, as Mr Murphy did, that the conduct was "premeditated" is an exaggeration not reflecting the level of contemplation and reasoning engaged in by the applicant on the evening. His actions plainly emerged from a discussion which occurred late in the evening, albeit at the applicant's instigation, and, as I have found, were partially but significantly influenced by the effects of alcohol. There is certainly a link between the excitement and exuberance of the Christmas party, the applicant's involvement with his companions, and the actions he then undertook. Whilst the applicant's conduct does involve elements of self-determination and gratification, at least to the extent of providing entertainment for friends and colleagues, this case bears none of the hallmarks of Morgan v Commissioner of Police [2010] NSWIRComm 67 (at [6]) (and see the decision of Marks J, sustained on appeal, in Morgan v Commissioner of Police [2009] NSWIRComm 184) where the police officer's conduct was described as involving a deliberate and knowing breach of applicable rules and standards of fundamental importance (and, for that matter, issues of integrity involving unlawfulness). 67The appellant contended his Honour's own findings could only lead to a conclusion that the respondent's conduct involved "a deliberate and knowing breach of applicable rules and standards of fundamental importance" and also ruled out, contrary to his Honour's further finding, acceptance of a submission that conduct was not "premeditated" . 68His Honour found that the conduct was not "spur of the moment" nor "premeditated". We understand that what his Honour meant by finding the conduct was not "premeditated" was that the respondent did not come to the restaurant planning to carry out his "party trick". His Honour did not consider it was a "spur of the moment" decision either, because of the amount of time taken to prepare. His Honour found the respondent's actions emerged from a discussion that occurred late in the evening, albeit at the respondent's instigation, partially but significantly influenced by the effects of alcohol and in the "excitement and exuberance of the Christmas party". All this was open to his Honour to find on the evidence. 69As to the reference to Morgan v Commissioner of Police [2009] NSWIRComm 184, his Honour took the view that the respondent's conduct was not in the same class as the applicant in that case. In Morgan , Marks J refused to make any orders in favour of the applicant (a decision not disturbed on appeal). His Honour found the applicant had accessed the COPS system on two occasions, access which was unauthorised and was untruthful about his explanation for such unauthorised access. 70In referring to Morgan, Walton J was making a distinction between, on the one hand, a deliberate and knowing breach of rules that went to the question of the applicant's integrity and, on the other hand, misconduct that was unplanned and which occurred late in the evening at a Christmas party function where the respondent was significantly affected by alcohol. There was no error on his Honour's part in not following Morgan . Earlier incidents down played 71The appellant contended that the primary judge erroneously "down played" the significance of the Wanaaring incident in 2005 and, as well, two further earlier incidents of public indecent exposure, on the basis that the respondent had, in effect, "got off lightly" with respect to the Wanaaring incident, and the two prior occasions had not been the subject of any action by the appellant. 72At [300]-[302] the primary judge stated: [300] My findings in relation to the Wanaaring incident in 2005 are found in paras [218] to [238] of this decision. The incident is plainly relevant to the determination of this review, as the applicant had obtained prior advice and counselling as to the unacceptable nature of that conduct, which he then repeated in a more serious form by the impugned conduct. As the Commissioner submitted, this should have made the applicant aware that he should not have engaged in the conduct he did and resulted in him not being "a first time offender". [301] However, Mr Murphy's submission, to the effect that the applicant had already had a "chance", does raise a different and more complex issue as to the severity of the step taken by the Commissioner on this occasion when a comparison is drawn with the Wanaaring incident. The 2006 incident did not rate as sufficiently serious to be treated as a non-reviewable action under s 173 of the Police Act . While the impugned conduct is obviously more serious and occurred after the benefit of earlier counselling, it is somewhat difficult to reconcile the two approaches as a matter of coherent discipline. [302] Ms Lowson submitted that the two further incidents of the applicant exposing himself (identified under cross-examination) had occurred before the investigation of the Wanaaring incident and played no part in any further warnings or actions by the Commissioner. I agree with her submission that the matters should receive little weight in these proceedings on that basis (in addition to, that is, the implications arising already from the Wanaaring incident). Mr Murphy did submit that the further incident tended to suggest that the applicant had shown a propensity to engage in this conduct. That much may be accepted, but I do not consider that it establishes a basis to argue that the conduct would be ongoing beyond 2008, given the evidence, that I will discuss below, as to the applicant's rehabilitation, remorse and the distress and hardship he experienced after December 2008. The further incidents also give a contra-indication to the Commissioner's case. They were undertaken by the applicant without any form of reprimand or review by more senior officers (now of considerably higher rank) who had knowledge of (or encouraged) the conduct. It may be expected that, in the ordinary course, some stronger rebuke earlier in time (including as to the Wanaaring incident) might have assisted in curbing the applicant's enthusiasm to engage in this form of conduct, particularly when affected by alcohol and encouraged by other officers. 73We presume what the appellant meant by "played down" was that his Honour did not give the earlier misconduct sufficient weight. In other words, it would appear that the appellant was contending that in light of the earlier misconduct the Commissioner was justified in removing the respondent following the misconduct in December 2008. 74We dealt with this proposition earlier. However, we note that in relation to the Wanaaring incident, which occurred sometime prior to September 2005, the respondent was not dealt with until September 2006 when he was counselled at a local level. There was no resort to s 173 of the Police Act , which provides for reviewable and non-reviewable action (short of removal) to be taken against a police officer for misconduct. 75The fact that such action was not taken against the respondent caused the primary judge to observe that it was difficult to reconcile what was a relatively mild approach taken in 2006 (counselling at a local level without resort to s 173) and the ultimate sanction taken in 2009 (removal) "as a matter of coherent discipline." 76His Honour accepted that the Wanaaring incident meant that the impugned conduct was more serious, given it was a repeat of conduct about which the respondent had been counselled. That conclusion was open to his Honour and, of itself, was not the subject of criticism by the appellant. The appellant's objection, however, to his Honour's approach seems to have been that his Honour should have concluded that the repeat conduct was so serious it warranted removal. His Honour took a different view that, in our opinion, was open to him. 77The appellant left it for at least 12 months before any action was taken against the respondent in relation to the Wanaaring incident. Further, an intermediate step was available but not taken in order to discipline the respondent in the form of reviewable or non-reviewable action including quite significant sanctions, such as a reduction in rank or grade, a reduction in seniority and a deferral of the salary increment. These were legitimate considerations for the primary judge. His Honour was entitled to question the coherence of an approach that in 2006 involved a mild reproach but in 2009, albeit involving more serious misconduct, involved dismissal of an officer who the primary judge found had a very good record, was highly trained, had the strong support of his colleagues (because of his performance in the Police Force) and who was capable of providing valuable service to the Police Force in the future. Harshness and seriousness of misconduct - separate issues 78The appellant submitted his Honour demonstrated confusion and, therefore, error between a proper and necessary (separate) assessment of the seriousness of the misconduct and the separate question of whether the removal of the respondent was "harsh" in all the circumstances. The appellant referred to the decision of the Full Bench in Director of Public Employment by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 . There it was held that considerations relevant to a determination of whether or not the decision to dismiss was "harsh, unreasonable or unjust in the circumstances", were not relevant to a determination of the seriousness of the misconduct in question. It was held the Deputy President erred in having regard to matters relevant to harshness in considering the seriousness of the misconduct. 79In the present appeal, it was submitted the primary judge erred in the same way as occurred in Brown and that this was evident from what his Honour said at [308]: [308] ... Beyond that, I do not consider it is helpful for the Commission to engage in a process of specifying where the misconduct lies in a theoretical range of the gravity of misconduct unguided by judicial authority to that effect in this area of jurisprudence. Rather, I will consider that matter in the final mix of considerations as to whether there was harshness in the removal of the applicant. 80The appellant further submitted his Honour's confusion and error were confirmed by his later conclusion as to "seriousness" reached following a "proper balancing of the factors described in para [297 - sic 296]" of his decision. 81We do not accept the appellant's contentions in this regard. At [296] Walton J exhaustively identified the factors that added to the gravity of the misconduct and in that paragraph and later paragraphs identified those matters that mitigated or ameliorated the seriousness of the misconduct. At [322]-[323] his Honour stated: [322] Balancing all of these considerations and giving particular weight to the public interest, I have decided, by a fine margin, that the removal of the applicant was harsh. I consider that the removal of the applicant was too harsh a consequence for the applicant's misconduct, having regard to the degree of seriousness of the applicant's misconduct, as I have described it, and the strong mitigating and other ameliorating circumstances in favour of the applicant, some of which, as I have found, were not given due consideration in the Reasons for Removal. [323] When there is a proper balancing of the factors described in para [297 - sic 296], I do not consider that the misconduct of the applicant is sufficiently serious that, in and of itself, it required an adverse outcome to this application, irrespective of the aforementioned countervailing factors. ... 82If what his Honour said at [308] is taken to mean his Honour intended to consider an unacceptable mix of considerations dealing with both seriousness and harshness, then we consider it was a mere slip by his Honour. It is very clear from his Honour's judgment at [296] that he considered separately the question of seriousness of the misconduct by identifying those factors that added to the gravity of the misconduct and those factors that mitigated it. Thereafter, in later paragraphs, he considered matters relevant to harshness (see, for example: "Impact on the Applicant" at [316]). As his Honour then said at [322]-[323], after balancing the factors in [296], he came to the view that the misconduct was not sufficiently serious to warrant removal from the Police Force. 83In our view his Honour took a proper approach by first considering the seriousness of the misconduct (having regard also to mitigating factors), then reaching his conclusions regarding seriousness, then considering matters relevant to harshness and citing his conclusions in that respect and then asking himself the question whether, on his assessment of seriousness, removal of the respondent was too harsh a consequence for the respondent's misconduct. 84The appellant submitted the seriousness of misconduct did not turn on questions of mitigating factors; mitigating or ameliorating factors were only relevant to the question as to whether a removal was harsh in all the circumstances. 85The appellant submitted there were factors that aggravated the seriousness of the misconduct, but denied there could be factors that mitigated that seriousness. The appellant's approach was that the respondent exposed his penis; that was "innately serious misconduct" and a fundamental affront to community standards of decency and no other considerations (apart from aggravating factors) were relevant. 86As a matter of logic that does not appear to make sense. The appellant contended that the misconduct was a premeditated, deliberate and knowing breach of applicable rules and standards of fundamental importance thereby making the misconduct more serious than it otherwise would be, but contended that if the misconduct was a "spur of the moment" act, that was not to be taken into account in mitigation. It was further contended that Walton J erred in not treating the fact that the respondent was a senior Police Officer as an "aggravating" factor, but appeared not to accept as a mitigating factor that the exposure was to a confined group of people who did not take offence and, in some respects, encouraged the behaviour. 87We do not accept the appellant's approach is correct and Brown offers no support for it. In Brown the Deputy President listed some 18 matters he took into account in determining whether the seriousness of the misconduct was such as to warrant the applicant's dismissal. Those matters included considerations such as an employee's history of previous employment and the personal consequences of the dismissal. 88The Full Bench held on appeal these were matters relevant to a determination of whether or not the decision to dismiss was "harsh, unreasonable or unjust in the circumstances", but they were not relevant to a determination of the seriousness of the misconduct in question. Brown said nothing about the relevance of mitigating factors in determining the seriousness of an act of misconduct. We find no error in this regard. 89By way of further clarification, in any case involving the removal of a Police Officer on the ground of conduct, there will be a range of considerations relevant to the seriousness of the misconduct. This involves a mixed question of fact and law. There may be factors that aggravate the seriousness of the misconduct (in this case the appellant contended the respondent's seniority was an aggravating factor) and there may be factors mitigating the seriousness (for example, whether the misconduct was premeditated or a thoughtless, "spur of the moment" act). These factors would need to be considered objectively and a conclusion reached about the seriousness of the misconduct. Once such a conclusion is reached, in the case of an application based on harshness, the tribunal will be in a position to make an assessment as to whether the dismissal was disproportionate to the gravity of the misconduct: Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ; Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (NSW Branch) [1973] AR (NSW) 231 at 233. In other words, whether the dismissal was harsh. 90In the case of an application based on harshness, the Commission will take into account whether there were any mitigating circumstances: Little v Commissioner of Police ( No 2 ) [2002] NSWIRComm 52; (2002) 112 IR 212 at [70] and [71]. Such circumstances might include: good previous service and character: Little (No 2) at [83]; Commissioner of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191 at [62] and Commissioner of Police v Evans [2006] NSWIRComm 170; (2006) 153 IR 144 at [7]; absence of likelihood of re-offending: Evans at [7]; consequences of the removal: Little (No 2) at [69]. Nature of police work 91There were a number of other matters in respect of which the appellant submitted his Honour had erred in that he failed to afford them any, or any sufficient, weight. The first of these was that his Honour erred in not treating the respondent's status as a senior officer in the Police Force as an "aggravating" factor in considering the seriousness of the misconduct. This was because the very nature of police work, being at the heart of the administration of justice, gave rise to the conclusion that unlawful behaviour, especially involving a breach of community standards as to public decency, will be regarded as more serious when undertaken by a police officer (and even more so by a Sergeant of Police) than it would otherwise be regarded if undertaken by a person not involved in a "calling" or other profession or occupation wherein the highest level of "trust and confidence" is essential and/or where public confidence in the conduct and integrity of the "worker" is of paramount importance. 92In this regard, the appellant referred to Brown (dismissal of a youth officer for excessive force, assault), New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 (assaults by a teacher on a special needs child attending a special needs school); Samad v Public Service Board (NSW) (1983) 5 IR 464 (psychiatrist assault on a patient in Rozelle Hospital); and Casari v Sydney South West Area Health Service (No 2) [2008] NSWIRComm 240 at [137]-[141] (ward orderly taking photographs of a naked two year old patient in the Emergency Department of Liverpool Hospital - noting, however, that the primary judge's "harshness" decision was overturned on appeal). 93This aspect of the appellant's submission was to a large extent a variation of an earlier submission in respect of which we found the primary judge accepted that the Commission should evaluate the conduct of Police Officers having regard to the special character of their employment and the need for discipline and high repute: [296](a). 94We also noted earlier that the appellant's attempt to portray the respondent's conduct in the worst possible light, notwithstanding the inconsistency of that approach to the one taken at first instance. But it is also inconsistent with the fact that, as the respondent submitted, he continued to work as a Police Officer from January 2009 (when the full circumstances of his misconduct were known to the appellant) through to October 2009, when he was suspended with pay. 95As the respondent correctly pointed out, members of the Police Force may be and are stood down during the course of a disciplinary investigation. As this did not occur in respect of the respondent, it tends to weaken the case on appeal that the respondent's misconduct was so serious his continuing employment as a police officer could not be tolerated because it was so repugnant and such an affront to public decency. 96As to the appellant's reliance on other cases involving the dismissal of persons in a position of trust and where public confidence in them was important, we do not gain much assistance from a comparison of a Police Officer exposing himself to a group of people not offended by the exposure and who in some respects encouraged it, and a teacher who seriously assaulted a special needs child, a psychiatrist who assaulted a patient in a mental institution and a ward orderly who took pictures of a naked two year old child. Walton J clearly understood the respondent was in a "calling" wherein a high level of trust and confidence was essential. It cannot be the case that because dismissal was the result in the cases referred to, that dictates the outcome in these proceedings. Conduct "totally repugnant" 97It was submitted for the appellant that it was "obviously the case that any person (let alone a Sergeant of Police) pulling out his penis in a public place is a fundamental affront to community values/standards, criminal conduct and conduct to be rejected as totally repugnant." Whether that is so or not, his Honour was not required to determine the matter solely according to what constituted an affront to community values. In any event, some members of the community present on the night did find the misconduct repugnant and removed themselves. Others did not. His Honour had regard to those matters in concluding the misconduct was serious and in that respect there was no error. Resort to rhetoric by the appellant does not assist in resolving the matter on appeal. Moreover, there was no finding in any court that the respondent's conduct was criminal and it was wrong, in those circumstances, to seek to baldly label it as criminal conduct, particularly when the appellant did not seek to prosecute the respondent in the criminal courts. Seriousness reflected in other case outcomes 98It was submitted the obviousness and the seriousness of the misconduct was reflected in the fact that "Australia wide research" suggested that there has only been one occasion wherein a male worker who had "exposed" himself had been reinstated (and then mental condition was said to have been involved). A number of cases were relied upon: Rowland v Austar Coal Mine Pty Limited [2010] FWA 8011; Applicant v Respondent [2009] AIRC 950 (the case involving the worker with a mental condition); J Aresca v Qantas Airways Limited [2002] AIRC 41; S Mason v Boyne Smelters Limited [Dec 880/99 B Print R7701]; Hosemans v NSW Police (No 3) [2005] NSWIRComm 161; Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263; Foster and Woolworths Limited [2000] NSWIRComm 208; Ueckert and Australia Water Technologies Pty Ltd [2000] NSWIRComm 123. 99We do not find this line of submission, or simply providing the Commission with references to and extracts from cases said to be relevant, very helpful. As the respondent rightly submitted, it is unproductive to attempt to align outcomes according to the nature of the conduct, given the differences in facts, statutory regimes and the inevitable peculiar circumstances of each case. In Hosemans , for example, there were additional considerations to the exposure incident, including lying about what occurred, grabbing at a female's breasts at the club in question and lying in Court about the matters. Respondent's inability to grasp the seriousness of the misconduct 100The appellant submitted that the respondent's inability to grasp the seriousness of the misconduct that he engaged in was a matter that clearly troubled his Honour (see decision at [304]-[305]). Yet such concerns were not then properly taken into account when assessing the seriousness of the misconduct and impracticability of re-employment (based, inter alia , on an erroneous conclusion that there was a "confident" basis that the cause of the misconduct had been eliminated). 101Walton J dealt with the respondent's attitude to his misconduct at [303]-[306]: [303] Earlier in this decision I referred to the duality of the applicant's position, in this respect, and indicated that my opinion as to whether he demonstrated remorse and contrition would be considered after the analysis of the contribution of alcohol. [304] The duality of the applicant's position is partly explicable on the basis that he understandably wished to advance factors (genuine in nature) which may have mitigated his admitted misconduct. It must be also accepted, however, that part of the duality of his position is that he had difficulty conceptualising his behaviour as having elements other than amusement or entertainment (and, therefore, lacking offence). On balance, however, I consider that a finding should be made that the applicant does accept his conduct was inappropriate and wrong, and that he is genuinely remorseful and contrite. [305] I consider that the evidence demonstrates that, albeit incrementally, the applicant has come to a full appreciation of his misconduct and its inappropriateness. I consider that he has shown remorse and contrition, not only because of his expressions to that effect, as earlier recorded in this decision (which reflect, overall, the maturing of his understanding of his misconduct and responsibilities), and his changed attitudes (and recognition of wrongdoing and immaturity), as conveyed to and reported upon by Ms McCartney, but by his actions. First, even though undertaken with the knowledge that a complaint had been made, the applicant communicated with Chief Inspector Breton, made frank admissions and assisted in his investigation in a way that was consistent with a recognition of wrongdoing (he stated that he "readily admitted [his] poor behaviour" and approached Chief Inspector Breton and "told him of [his] conduct"). The early response and the disclosure tend to point against a conclusion that the applicant had merely attempted to obtain a strategic advantage in this approach (in contrast to any number of other cases in this area which have been accompanied by denials leading to charges of a lack of integrity). Secondly, he has removed the piercing and has undertaken not to engage in such activity in the future. Thirdly, his active and successful involvement in rectification of his alcohol problems and the accompanying acceptance of the damage caused by alcohol consumption to his work and private life indicate a genuine desire for and appreciation of the need for change. This is again a factor that points to a genuine appreciation of the inappropriateness of his behaviour and the need for its rectification. [306] Thus, I consider that, even though some of the statements made by the applicant indicated that he had maintained a view as to the limits of his misconduct on the evening in question, those statements merely reflect a perspective as to what he had apprehended he was doing on that evening (or what he had intended to do) and do not denigrate from his overall appreciation of the inappropriateness of his conduct and the genuineness of his contrition, when his statements and actions are considered as a whole. In all the circumstances, I am prepared to treat the applicant as being genuinely remorseful and contrite about his behaviour of 11 December 2008 and his failure to take advice from previous counselling given in 2006, and settled in his view that his conduct must now be mature and responsible in all facets of his life. 102As the appellant conceded, the primary judge was aware of the "duality" of the respondent's attitude to his misconduct. But it is quite clear from his Honour's treatment of this issue that he gave it proper consideration and concluded that the respondent did accept his conduct was inappropriate and wrong, and that he was genuinely remorseful and contrite. We see no error in this respect. Integrity of Police Force and community attitudes 103The appellant submitted Walton J failed to focus on what, in particular, was required to ensure that the "public interest" in "maintaining the integrity of the New South Wales Police Force" was properly taken into account, and failed to pay proper regard to the fact that the community would regard such public "exposure" as entirely unacceptable. 104We note that the appellant did not identify, in this part of his submissions, what particulars the primary judge failed to focus on. Walton J was clearly alert to the requirement that the public interest in maintaining the integrity of the New South Wales Police Force is to be taken into account (see [12]-[18], [25] and [317]-[320] of his Honour's decision) and his Honour did so. 105As to the misconduct being a serious affront to community standards, Walton J observed at [296] that s 5 of the Summary Offences Act "offers some guide, in these proceedings as to community views about what may constitute offensive behaviour." Walton J did not address Crowe v Graham, Duncan, Rogers & McKay [1968] HCA 6; (1968) 121 CLR 375 or Moloney v Mercer [1971] 2 NSWLR 207, which were relied upon on the appeal by the appellant, because they were not drawn to his Honour's attention. The reliance was to the effect that the cases demonstrated that "indecency in public [such as exposure of one's penis] is regarded as a serious affront to common decency in the community" and that, therefore, removal was justified. 106The respondent complained that this aspect of the appellant's case was not run at first instance and should not be allowed to be run on appeal. It was submitted that what was put at first instance was that the misconduct was contrary to standards of conduct expected of a police officer by the community and by the Commissioner of Police; it was not put that the misconduct was "reasonably capable of offending the ordinary modesty of the average man ...": Mercer at 212. 107The appellant's case in this respect at first instance was that the respondent's conduct was "below the level expected in the force and the community" and that it was offensive, as reflected by s 5 of the Summary Offences Act. Walton J was not called upon to make a determination as to whether the misconduct was "reasonably capable of offending the ordinary modesty of the average man". We do not, therefore, consider his Honour erred for the reason he did not explicitly find the respondent's misconduct was a serious affront to community standards of decency and, for that reason, that the public would not tolerate a police officer engaging in such misconduct. 108The approach taken by the primary judge was to consider the particular circumstances of the case rather than adopt a sweeping proposition that because the respondent's conduct offended community standards of decency it was "innately serious" and deserving of dismissal for that reason alone, which was essentially the appellant's case in these proceedings. His Honour considered, inter alia , the environment in which the conduct occurred, who witnessed it, whether those persons were offended by it and also the fact that the conduct forced some members of the party to remove themselves by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable. His Honour also understood there was a risk that other persons attending the party may have witnessed the conduct and, by the very nature of the conduct, may have found it offensive. 109Walton J clearly recognised the offensive nature of the respondent's conduct, but in weighing up all of the relevant considerations in the case before him and not solely the issue of offensiveness, his Honour concluded the seriousness of the misconduct did not justify removal because it was too harsh a consequence. We do not consider his Honour erred in that respect. Mitigating/Extenuating Factors 110The appellant submitted his Honour erred in concluding that there were mitigating/extenuating factors that were sufficient to outweigh/overcome the respondent's serious (and wilful) misconduct, such that a conclusion that the removal was "harsh" was then seen as reasonably open, albeit only by a "fine margin". The appellant proceeded to identify these factors as follows: (a) Course of Conduct; (b) Seniority/Status; (c) Alcohol Defence; (d) Risk of Recurrence; (e) Contrition/Remorse; (f) Credit; (g) Offensive Conduct; (h) Character References; (i) Public Interest. Course of Conduct 111The appellant submitted his Honour had understated the significance of the earlier episodes of indecent exposure and placed insufficient weight on the fact that this was a well established course of conduct case, given that the respondent had admitted that he had exposed himself in public on at least three prior occasions, with the Wanaaring Hotel incident resulting in formal "counselling" that such behaviour was totally unacceptable. It was submitted his Honour erred in suggesting, in effect, that the stance of the Police Force in relation to the Wanaaring incident may not have been conveyed clearly enough to the respondent, who at the time was a Senior Constable, that his conduct was totally unacceptable. 112We should observe that we did not understand the primary judge to have considered the previous incidents as matters relevant to mitigation. The previous conduct was relied upon by the appellant to support his decision to remove the respondent, not by the respondent as matters to take into account on mitigation. 113In any event, we dealt earlier in this decision with the previous incidents. However, the appellant now submits the previous incidents should also be seen in the context of a "course of conduct" by the respondent in that his Honour failed to give any appropriate weight to the fact that the respondent: (a) Had an established course of conduct in taking his penis out of his trousers in public with a view to impressing/entertaining anyone interested in looking at the "Prince Albert" piercing through the end of his penis (and/or any object hanging from that piercing); (b) (Hence) had an established practice of introducing the topic of body piercing and then volunteering that he had a penis piercing, undoubtedly for the purpose (by overwhelming inference) that those persons would then request (out of interest) or demand (out of disbelief) to see his pierced penis; and (c) (Then) quite untenably, actively relied on these invitations/dares to expose himself as part of his defence or explanation for his totally unacceptable conduct. 114It is evident from the primary judge's decision that he was conscious of the fact that there had been a repetition of the respondent's misconduct on at least three occasions. However, contrary to what the appellant sought to have established, his Honour found there was no premeditation on the part of the respondent in 2008. That finding was open to his Honour and would seem to put paid to the contention that the respondent had an established course of conduct. To find that there had been a course of conduct it would have to have been established that there was premeditation; that the respondent planned to carry out his "party trick" whenever the opportunity presented itself. That was not made out on the evidence. Seniority/Status 115It was submitted for the appellant his Honour gave insufficient weight to the fact that the respondent, as a Sergeant, had "significant responsibility and the Commissioner's trust and confidence... (and the) role was to impart his knowledge, experience and the values of the New South Wales Police to junior officers (and to be) a role model": see Evans at [23]. 116Again, this issue does not appear to be relevant to the question of mitigation. However, we dealt with the question of the respondent's seniority earlier in this decision when we considered the appellant's submission that the respondent's seniority was a factor aggravating the seriousness of the misconduct. Alcohol Defence 117The appellant submitted his Honour incorrectly concluded, as it was not reasonably open to do so, that the respondent's alcohol consumption on the night in question had, in some way, precipitated, or contributed to, the respondent's decision to expose himself. Further that, in any event, his Honour erred in placing weight on the "drunkenness defence" in circumstances where it should not have been accepted as a defence/mitigating factor at all, especially when any level of intoxication was "self inflicted" and where, as the most senior police officer present, he clearly had a responsibility to function as a role model and to guard the integrity of the New South Wales Police Force at all times. 118Where a police officer consumes alcohol, on or off duty, to the degree the officer becomes intoxicated and consequently commits an act of misconduct the Commission would not, in the normal course, accept that as an excuse for the misconduct such that the officer's intoxicated state is taken into account in mitigation in any consideration of an application for review under s 181E of the Police Act . However, no hard and fast rule has been laid down to the effect that intoxication contributing to misconduct will never be taken into account in mitigation. There may be circumstances, for example, where expert evidence demonstrates an illness arising from alcohol dependency that should have been, but was not addressed by the Police Force through an assistance program; it may be that the officer recognises that he or she is alcohol dependent (which contributed to the misconduct) and is taking or has taken appropriate steps to overcome that dependency (see Evans at [7], Collins at [67] and Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 at [34] and [52]). These might be legitimate matters to be taken into account in mitigation. 119In the present case, as the primary judge recorded at [253]: It was submitted for the applicant that he had not advanced the consumption of alcohol as an excuse, but as an "explanation" and that the role of alcohol had been to impair his judgment and reduce inhibitions that might otherwise militate against such misbehaviour. The respondent did not rely on his alcohol consumption to excuse or defend his conduct. 120Walton J concluded that alcohol was a contributing factor in the respondent's behaviour. However, his Honour also found that factor could not wholly justify or excuse the behaviour, and constituted a mitigating factor to be taken into account in the Commission's consideration (at [260]). 121This finding cannot be viewed in isolation. We agree with the respondent that the primary judge's focus was on rehabilitation and risk of recurrence. As the respondent submitted, his Honour: (a) concluded, on the basis of the respondent's evidence and evidence forthcoming from witness accounts relied upon by the appellant, that the respondent was affected by alcohol on the night in question; (b) accepted the unchallenged evidence of Ms McCartney that the respondent had an alcohol or drinking problem; (c) accepted the evidence of Ms McCartney that the respondent had taken steps successfully to address the drinking problem; and (d) relied on this fact to conclude that this lessened the likelihood of the incident occurring again in the future. 122Walton J had earlier in his decision observed that, "The authorities make clear that relevant considerations in mitigation are whether the misconduct was due to an excessive consumption of alcohol and if the officer had taken steps to seek professional help to overcome that problem" (at [26](b)) (emphasis added). 123We consider the benefit the primary judge afforded the respondent by way of mitigation was not simply that alcohol constituted a mitigating factor, but rather it was that fact combined with the respondent's efforts in taking steps successfully to address his drinking problem and that, in doing so, this lessened the likelihood of any future recurrence. Risk of Recurrence 124It was submitted the primary judge erred in placing weight on the evidence of the respondent and the psychologist that the "treatment" he had been having with respect to his asserted alcohol problem provided a basis for "confidence" that he would not "re-offend", in circumstances where there was no proper evidentiary basis for finding a causal connection between his public exposure and the level of his alcohol consumption, in the first place. 125It was further submitted his Honour erred in not rejecting the respondent as creditworthy with respect to the recurrence issue because his Honour's acceptance of the respondent about this important issue rested, inter alia , on the credibility of his "alcohol" defence. Yet, the asserted extenuating circumstance of being "drunk at the time" should have been rejected as of no more significance/probative value than the respondent's other general/usual defences to his indecent exposure conduct, namely, that he (seemingly) considered himself to be obliged to expose himself when people doubted that he had a Prince Albert piercing through his penis or expressed a desire to see it out of interest. 126The primary judge did not accept that alcohol was a complete explanation for the respondent's misconduct. His Honour said at [259] "... even given this description of the [respondent's] alcohol problem, an element of the [respondent's] behaviour involved self determination, probably driven by a desire to engage in the exhibition he ultimately undertook, and that he did so, contrary to what maybe reasonably expected of an officer of his seniority." His Honour also said at [254]: [254] ... Mr Murphy was correct to submit, in my view, that the applicant was able to engage in a quite deliberate course of conduct, in which he set about to provide this public display either for his own or other persons' gratification or amusement. ... 127Thus, his Honour understood that quite apart from alcohol the respondent had exhibitionist tendencies and it is apparent that the primary judge took that into account in arriving at his conclusions. 128In relation to the contribution of alcohol, his Honour was entitled to draw the inference that the amount consumed by the respondent was a contributing factor to the respondent's decision to engage in the misconduct. In that respect, Walton J found at [252]: [252] ... The applicant had started drinking beer, 'XXXX Gold' (mid-strength), and then consumed wine with his meal followed by cans of rum mixers. In fact, he had consumed overall at the restaurant approximately six bottles of beer, a bottle of wine and six cans of rum (the precise quantity consumed at the time of the impugned conduct is unclear, but it is plain that the applicant was intoxicated). 129At [256] his Honour stated: [256] Ms McCartney's report (which was not the subject of cross-examination) offers support for the contention that alcohol did contribute to the applicant's behaviour on the evening of 11 December 2008 by impairing his judgment and perspective of his wrongdoing. I am not merely referring, in this respect, to the typical effects of excessive alcohol consumption arising from binge drinking, but to the broader impact of alcohol on the applicant's life arising from a sustained pattern of excessive consumption of alcohol: what colloquially might be called an "alcohol or drinking problem". The problem constituted a lack of awareness of how alcohol was adversely affecting his behaviour in his work, family and social life, and the acts or omissions undertaken commensurate with that lacuna in judgment. ... [258] Ms McCartney reported upon the progress of the applicant after the incident in managing alcohol. I will return to that matter, but it is her detailed discussion of the areas of "cognitive and behavioural change" which are instructive in the present context. She found that the applicant was "now aware of the physical, social and work-related consequences of risky levels of consumption. He is able to foresee the consequences of his behaviour and the impact on work, family and social life". She also identified that the applicant also now understands "situations of high risk" and had learnt to control "his behaviour as maturity and role demand". This suggests, as I have noted, the applicant's behaviour and perception of his behaviour was affected by excessive alcohol consumption, and that that infirmity existed at the time of the impugned conduct (as the high score on the index was registered before and at this time). Thus, it should be inferred that those personal difficulties were developing or existed before the "change" and were broadly consistent with the notion that the applicant's judgment was impaired and lacking perspective at the time of the impugned conduct. Their existence explains how alcohol may have made him less risk adverse and not fully comprehending his work and non-work responsibilities vis vis the impugned conduct. This prior alcohol problem is (sic) should result in a conclusion that the impugned conduct was not simply a careless act of self-indulgence during a particular social occasion but that there were some personal mitigating factors which to some extent explain his behaviour. 130The primary judge was entitled to draw the inference that the respondent's alcohol problem caused his judgment to be impaired and lacking perspective at the time of the impugned conduct. 131Given the connection between the respondent's alcohol problem and his misconduct, there was a proper basis for the primary judge to find that in light of the respondent's acknowledgement of his problem and the steps he had taken to deal with it, there "had been rehabilitation with good prospects of a lasting modification to his behaviour" (at [309]) and that this was a factor properly to be taken into account in mitigation. Contrition/Remorse 132It was submitted for the appellant that Walton J erred in concluding that the respondent was genuinely contrite/remorseful despite his Honour's own serious misgivings about whether the respondent really recognised and accepted that his public exposure behaviour was entirely unacceptable. 133It was contended his Honour should have found that the respondent was, in reality, neither remorseful nor contrite as demonstrated not only by his equivocal evidence in this regard but also by his preparedness to run a disingenuous defence that his alcohol consumption caused or contributed to his decision to expose himself. 134As we earlier observed, the primary judge was aware of the "duality" of views the respondent held about his conduct and that troubled his Honour. His Honour obviously needed to address that issue and resolve it. 135In doing so, his Honour had the advantage of observing the respondent give his evidence and be extensively cross-examined. After very careful consideration of this matter, Walton J was satisfied that, notwithstanding some difficulty in accepting that the conduct was anything other than entertaining, the respondent was genuinely remorseful and contrite. This was a finding that was open to his Honour on the evidence. Credit 136The appellant submitted Walton J erred in not finding that the respondent's statements about his future conduct were inherently implausible/unreliable for the reasons that the respondent: (a) had engaged in the misconduct after being counselled about the Wanaaring incident; (b) proffered spurious defences (presumably the alcohol defence); (c) offered unconvincing expressions of remorse and contrition; (d) lacked integrity because he failed to be candid about the reasons for his behaviour; (e) disregarded s 7 of the Police Act and Oath of Office; (f) showed lack of insight into his obligations, the significance of past warnings, and community expectations as to indecent exposure. 137As to the first three matters and the last matter identified above, we consider we have dealt with those earlier in our decision. With regard to integrity, the appellant eschewed any reliance on lack of integrity at first instance. We, therefore, do not propose to countenance reliance on it on appeal. As to disregard of the values of members of the Police Force in s 7 of the Police Act and the respondent's Oath of Office, Walton J dealt with those matters directly and found that they had been infringed. His Honour stated at [296](a): The Commissioner referred to s 7 of the Police Act , Reg 9(1) of the Police Regulation 2008 and points (1) and (4) of the Police Code of Conduct and Ethics. Although there are questions as to the degree of encroachment upon these standards in this case, these norms were, nonetheless, infringed by the applicant's misconduct. Further, the Commission should evaluate the conduct of police officers having regard to the special character of their employment and the need for discipline and high repute. ... 138In considering the respondent's credit, Walton J had the distinct advantage of seeing the respondent give his evidence. It is clear from a reading of his Honour's decision that he did not regard the case as clear-cut. He had serious reservations concerning the respondent and had the difficult task of judging the respondent's credibility having regard to all of those matters raised by the appellant on appeal. Ultimately, after a painstaking consideration evident from the decision in the case, his Honour was satisfied he could believe the respondent about his future conduct and that there would not be a recurrence. We are unable to find that his Honour erred regarding his interpretation of the facts and the inferences he drew from them. 139We are reminded that in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said at 479: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact ( Brunskill [1985] HCA 61; (1985) 59 ALJR 842; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ( SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was 'inconsistent with the facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ( Brunskill (1985) 59 ALJR at 844; 62 ALR at 57). 140In assessing the credibility of the respondent, we do not consider the primary judge failed to use or palpably misused his advantage or acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable. Offensive Conduct 141Here, it was submitted the primary judge placed insufficient weight on the fact that a number of people, even within the respondent's own party, were offended by the "party trick"; that a number of others left the verandah to avoid being a party to, or a witness of, such unacceptable behaviour; and that his Honour erred by failing to draw the available and overwhelming inference that the respondent's staff members and their wives who said they were not offended, probably adopted that stance with a view to not contributing to the "trouble" the boss had brought upon himself and/or out of fear that if they spoke up against him that it may have adverse consequences for them in the workplace (especially if he was not removed from the Police Force). 142Again, we should note this is not a matter that is relevant to the issue of mitigation. We also note it was not the appellant's case that his Honour mistook the law, or made a material error of fact, or failed to deal with the question of offensive conduct or with the fact that some persons may have been offended by the respondent's conduct. His Honour dealt with those matters directly. What the appellant contended, as he did in respect of many of the issues of which he complained, was that his Honour did not give sufficient weight to these matters and, therefore, erred. 143Walton J accepted the appellant's submission at first instance that the respondent's conduct forced some members of the restaurant party to remove themselves, "not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable." This was a consideration his Honour took into account in gauging the seriousness of the misconduct: see [210](8) and [296](e). It was a consideration that clearly operated adversely against the respondent. Given the mix of considerations the primary judge was required to weigh up and that his Honour only found by a "fine margin" the removal of the respondent was harsh, we are unable to agree that insufficient weight was given to the fact that some members of the party found the respondent's conduct repugnant or unacceptable. 144As for the submission about the views "probably adopted" by the respondent's staff members and their wives who had said they were not offended, we can find no basis for accepting that submission. Character References 145The appellant submitted his Honour erred in that he placed too much weight on the fact that there were a significant number of hand picked, supportive "character" references that the appellant did not have regard to in arriving at his removal order decision, in circumstances where the appellant is the statutory officer with the sole responsibility for forming and expressing his own personal opinion as to his "confidence" in an officer's suitability to continue as a police officer under s 181D of the Police Act. His Honour erred, it was submitted, in affording too much weight to the "supportive" references provided by the senior police officers in circumstances where: (a) seemingly unconditional support and endorsement of the calibre of the respondent, implicitly rested on an entirely unacceptable tolerance of deliberate indecent exposure in a public place and preparedness not to regard such behaviour as serious; (b) in an addition to the natural bias/sympathy of friendship, the bulk of the referees were led to believe that intoxication was (at least) a significant causal factor, in circumstances where this was not the case; (c) the referees were not aware that the respondent had a well established practice of performing his "party trick" in restaurants, night clubs and saw it as a "bit of fun"; and (d) their support for the retention of the respondent rested, in effect, on the dangerous, untenable and unacceptable notion that if the "captain" leads his team with distinction on the field, then there should be a higher tolerance for his off field antics, even when very serious, because he is good for the team and the club (his "value" outweighs any odium or disrepute associated with such tolerance). 146It was further submitted his Honour also erred in considering the character reference evidence as having the same level of significance as the character evidence in Alexander v Commissioner of Police [2009] NSWIRComm 3 and in McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 in circumstances where both those cases, in stark contrast to this case, involved probationary police officers and evidence (from "day to day" senior observers) that focused specifically on the applicants' acceptable attitude, respect for authority and performance. This case, it was submitted, was about serious misconduct by a senior officer where the character evidence was often based on inadequate and/or misleading information and focused on the respondent being a good police officer who has and can continue to provide "valuable" service to the Police Force. This assessment was, according to the appellant, "in the heartland of the Commissioner's expertise and responsibility and so there was no proper basis for his views on this issue being 'trumped' by hand picked supporters of the respondent." 147At [314] Walton J stated: [314] The character evidence in these proceedings has, in my view, two implications. First, in relation to the question of harshness, it provides a testament to the applicant's past good conduct and service to the Police Force, given in the clear knowledge that the applicant had engaged in an act of misconduct. These statements also lend support to the notion that the applicant may still play an ongoing, productive role within the Police Force. Secondly, the references are relevant to the question of the practicability of reinstatement or re-employment, with the character evidence offering clear support in favour of a positive finding in that respect. 148Thus, the primary judge regarded the character evidence as relevant for two purposes: evidence of the respondent's past good conduct and service; and evidence relevant to the question of the practicability of reinstatement or re-employment . There is no indication that his Honour gave more weight to the character evidence than the opinion of the Commissioner as to his "confidence" in an officer's suitability to continue as a police officer. It must be accepted that the Commissioner's opinion carries great weight. But that opinion is not determinative. As the Chief Justice observed in Sewell at [76]: [76] It cannot be, and was not directly, suggested that the Police Commissioner's decision on matters of this kind can be regarded as determinative. Without saying so, as a matter of substance, that is what the applicant sought to achieve in this Court. Of course, that is inconsistent with the conferral of a power of review on the Industrial Relations Commission. 149His Honour did not simply use the character evidence to "trump" the Commissioner's opinion. His Honour was required to have regard to a complex mix of considerations, first as to seriousness and secondly as to harshness. In that mix was the character evidence. Having regard to the mix of considerations it was entirely open to his Honour to have regard to the character evidence in the manner that he did in arriving at the conclusion that the respondent could make a valuable contribution to the Police Force in the future. This approach is reflected in what his Honour stated at [325]: [325] I have been particularly influenced, in that respect, by my conclusion as to the applicant's rehabilitation with respect to his alcohol problems and the prospect of a longstanding modification to his behaviour, such that the factors which led to a loss of confidence have been essentially eliminated. To this consideration may be added the confidence of his fellow officers, of senior rank and position, that the applicant will make a valuable contribution to the Police Force in the future; the applicant's genuine appreciation of the inappropriateness of his conduct, for which, on a proper evaluation of his evidence, he has expressed remorse and contrition: Toshack [at 75] and the detriment he has suffered to his finances, career and reputation (which, no doubt, have also contributed to the reappraisal of his behaviour). I do not consider that the public interest considerations arising under s 181F(3) warrant any contrary conclusion when properly assessed and balanced as to their competing elements and the interests of the applicant. 150The appellant complained that character evidence provided by senior Police Officers rested on an "entirely unacceptable tolerance of deliberate indecent exposure in a public place and preparedness not to regard such behaviour as serious". In that respect we agree with the respondent that these were matters that should have been agitated in evidence, by cross-examining the character witnesses. In any event, as the respondent submitted, witnesses stated their opprobrium of the conduct directly or by expressing their disappointment in the respondent (evidence of Chief Inspector Spooner; Detective Senior Sergeant O'Reilly; Inspector Wadsworth; Detective Inspector Greentree). It was, as the respondent submitted, inappropriate for the appellant to query the bona fides of these officers without putting such reservations to them in cross-examination. 151The appellant also complained that the bulk of the referees were led to believe that intoxication was a significant causal factor, in circumstances where this was not the case. The appellant did not point to evidence supporting the proposition that the respondent led the referees to believe alcohol was a causal factor and we could find none. However, as the respondent submitted, the Notice that each referee received prior to preparing their references made reference to alcohol consumption, and then proceeds to quote a document issued by the appellant concerning "excessive use of alcohol by off duty police". As it was submitted by the respondent it is unsurprising, in those circumstances, if the referees were led to believe - by the appellant - that alcohol consumption was a factor. 152The appellant next contended the referees were not aware that the respondent had a well established practice of performing his "party trick" in restaurants, night clubs and saw it as a "bit of fun". 153We accept what the respondent submitted, that the appellant had ample opportunity at first instance, after hearing the evidence of the earlier incidents, to reconsider the decision not to cross-examine character witnesses and put this new information to them, and ask whether it would have changed their view. The appellant did not attempt to call the character witnesses and put this material to them, nor did he submit at first instance that less weight should be given to the character witnesses as a result of this new information. 154The appellant's fourth complaint was that the referees': [S]upport for the retention of the respondent rested, in effect, on the dangerous, untenable and unacceptable notion that if the "captain" leads his team with distinction on the field, then there should be a higher tolerance for his off field antics, even when very serious, because he is good for the team and the club (his "value" outweighs any odium or disrepute associated with such tolerance). 155This submission, we think, descends into hyperbole. It is a proposition not put to any of the referees in cross-examination. Public Interest 156It was submitted the primary judge was required by s 181F(3)(b) of the Police Act to have regard to the "public interest" and, as the Court of Appeal indicated in Sewell , to give it "substantial weight" (at [77]). His Honour erred, it was submitted, in that he did not give significant weight to the "fact" that the appellant had made an Order under s 181D(1) and in concluding that, even post Sewell , all the identified factors in s 181F(3) were to be given equal weight: see his Honour's decision at [13]-[15]. 157In Sewell, it was relevantly stated at [77]: [77] The matters referred to in s 181F, most relevantly s 181F(3)(b), are entitled to weight as a fundamental element in the decision-making process. Indeed, the section, in its overall context, is an indication that these considerations are entitled to substantial weight. ... 158We do not understand the Chief Justice in that paragraph to have found that more weight had to be given to the public interest (s 181F(3)(b)) than to the interests of the applicant (s 181F(3)(a)). We understand his Honour to have found that "substantial weight" was required to be given to both matters in s 181F(3). There is no basis, either as a matter of policy or statutory construction, for holding that more weight is required to be given to the public interest or that in every case equal weight has to be accorded to the interests of the applicant and the public interest. Each case will have its only peculiar circumstances and the requirement to be met by the primary judge is that both s 181F(3)(a) and (b) are accorded substantial weight. 159Walton J did not find that each limb of s 181F(3) had to be accorded equal weight. The appellant made reference to his Honour's decision at [13]-[15]. But there his Honour makes clear that s 181F(3) does not dictate what weight or influence should be attributed to the factors referred to in the sub-section in determining an application made under s 181E: [13] In Evans (at [5]), the view was expressed that s 181F(3) does not alter the fundamental test posed by s 84 of the IR Act, namely, whether the dismissal was harsh, unjust or unreasonable. In Little No 2 (at [68]) the Full Bench observed that a balance must be struck between the requirements of s 181G(1) and s 181F(3) as follows: Further, the requirements of s 181F(3) are relevant to determining whether the removal of a police officer was harsh, unreasonable or unjust: see Van Huisstede (at [248]). However, those factors do not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters. The provisions of s 181F(3) are simply matters to which the Commission is also to have regard in making such an assessment (which, in any event, would be considerations broadly relevant in the adjudication of many unfair dismissal applications under the Industrial Relations Act ) and particularly so where the proceedings relate to positions in the public sector or other areas where the public interest may have particular relevance. [14] This passage from Little No 2 conforms with the judgment of the Court of Appeal in Sewell No 2, where that Court emphasised that, despite the central significance of the Commissioner's role in a legislative scheme, the entire point of the provisions for review in Div 1C of the Police Act is to enable the Commission to overturn the Commissioner's decision on the basis of a finding that the removal was harsh, unreasonable or unjust. However, the observations of the Full Bench need to be understood, in my view, in the light of the Court of Appeal's view (in Sewell No 2 at [77]) that "the matters referred to in s 181F, most relevantly s 181F(3)(b), are entitled to weight as a fundamental element in the decision making process. Indeed, the section, in its overall context, is an indication that these considerations are entitled to substantial weight". This is the context in which the words "must have regard to" in s 181F(3) must be read and applied (see also Sewell No 2 at [73]). [15] However, s 181F(3) does not dictate what weight or influence should be attributed to the factors referred to in the sub-section in determining an application made under s 181E. In Commissioner of Police v Dobbie (2006) 157 IR 44 at [67], the Full Bench dealt with a submission made by the Commissioner as to a police officer driving under the influence of alcohol. That submission was described in the following way: Mr Skinner contended that the respondent was not deserving of a third chance, particularly in the light of the need for his Honour to consider the maintenance of the integrity of NSW Police (see s 181F(3)(b) of the Police Act). Not only was he obliged as a citizen of New South Wales to abide by the law, but also as a sworn police officer he was charged by his oath of office, the Police Act, the Police Regulation, the Crown Employees (Police Officers) Award, and the New South Wales Police Code of Conduct and Ethics to abide by the laws that he breached. These duties it was submitted, weighed more heavily upon the respondent given his previous conviction and clemency shown to him then. The Full Bench's assessment of the submission was as follows (at [66] and [67]): There can be no doubt that Marks J was fully cognisant of the seriousness of the offence committed by the respondent and it may be accepted his Honour well understood the implications for maintaining the integrity of NSW Police if the respondent were to be reinstated. But his Honour was required to have regard to all of these considerations as well as the respondent's interests. Section 181F(1)(3) [sic - 181F(3)] does not dictate what weight or influence each of the particular matters is to have in the decision to be made. Ultimately his Honour decided, on balance, having regard to all of the circumstances, the dismissal was harsh. (see also Collins at [54] and Johnston v Commissioner of Police (2007) 169 IR 301 at [62].) 160It was further submitted for the appellant that his Honour erred in that he: (a) did not indicate the matters that needed to be looked at when considering the expression "maintaining the integrity of the Police Force" and hence could not/did not explain how the public interest in protecting that integrity was outweighed by other considerations in this case; (a) failed to consider and explain in his reasons how the integrity of the NSW Police Force (from the Commissioner's confidence/perception point of view) was not seriously compromised by the Respondent's indecent exposure, such that a conclusion of harshness was reasonably open; and (c) failed to consider and explain in his reasons how the integrity of the NSW Police Force (from a public confidence/perception point of view) would not be undermined/ jeopardised, if the Respondent was returned to the NSW Police Force. 161In addition to considering at length the legal principles to be applied in relation to s 181F(3), his Honour addressed directly those considerations that were required to be weighed in applying that provision of the Police Act . At [319] and [341] his Honour stated: [319] Here, there is required a balancing of considerations between the Commissioner's determination, the maintenance of the integrity of the Police Force (by the upholding of appropriate standards, even in off duty situations) and the elimination of conduct which may bring the Police Force into disrepute (such as the impugned conduct), and, the maintenance of the service of a highly trained officer who has the strong support of his colleagues (because of his performance in the Police Force) and who is capable of providing valuable service to the Police Force in the future. This is also a case where the subsequent rehabilitation of the officer has the real potential to eliminate the very conduct (or conduct of that type) which caused the Commissioner to lose confidence. The interests of the applicant are reflected in his desire to rectify or ameliorate the very significant detriment in terms of his finances, career and reputation he has suffered as a consequence of the removal. ... [341] I do not consider that the restoration of the service of the applicant is contrary to the public interest. The same considerations, as earlier mentioned with respect to the public interest, are relevant here. There is a confident basis for the restoration of the applicant's prior good service with the NSW Police Force without repetition of conduct of the type which has led to these proceedings. Additionally, I consider the integrity of the Police Force is maintained and protected by the public recognition of the applicant's misconduct, the confirmation of the applicable codes or standards for off duty behaviour and the restoration of service at a lower rank with conditions. 162We consider his Honour dealt adequately with the matters relevant to be considered under s 181F(3). We note that the appellant provided little assistance in this respect to his Honour at first instance. Beyond submitting there was a public interest aspect in this case and that it was in the public interest that the Commissioner should be entitled to expect standards of conduct of officers of the rank of Sergeant in the Police Force, little else was put about the public interest, integrity of the Police Force, or the way in which these matters should have been weighed at first instance. 163The appellant next submitted his Honour erred in failing to recognise that, in giving real/intended meaning to, and in deciding whether "the integrity of the Police Force" had been seriously undermined by the respondent's repeated misconduct, it was necessary to ask and answer a number of questions including: (a) what was the likelihood that the public would regard it as totally unacceptable that the Police Force should have amongst its senior ranks, an officer who thought that exposing his penis in public places was "a bit of fun" and not "indecent"?; (b) how can the Appellant be seen as an effective manager of a disciplined force, if he cannot get rid of officers who (repeatedly) engage in indecent exposure in public (and do so even after "advice and counselling")?; (c) what message will be sent to other police officers if this officer is returned to work - ie will it not be an alcohol "defence" (even a weak one) will get you one, if not two chances to stay in the Police Force, even if your misconduct is very serious (ie even when it involves indecent exposure)?; (d) will not the public, or a significant proportion of the public, see it as inequitable/unfair that a senior police officer gets to keep his job in spite of repeated acts of indecent exposures in public, when it would be inevitable that they would lose their jobs if they engaged in the same behaviour?; (e) how will the public have confidence in, and accept the work of, our Police Force in seeking to uphold the law, if police officers themselves show scant regard for it?; and (f) in these circumstances, especially where the central facts were not in issue (and defiance of direction was clear), why would it not be necessarily appropriate to give significant weight to "the fact" that the Appellant had assessed this case and made his expert determination as the appointed statutory manager of the Police Force? 164Putting aside that none of these questions were raised at all at first instance and thereby providing the primary judge with an opportunity to specifically answer each of them, we would make the following observations: the questions are simplistic and pay no regard to his Honour's findings. For example, in relation to (a) and (e) they fail to acknowledge his Honour found that the respondent was genuinely remorseful and contrite. In relation to (b) it gives the misleading impression an officer guilty of such conduct can never be removed and seems to be based on the premise the final decision lies with the Commissioner, notwithstanding an officer's right to review. In relation to (c), there was no "alcohol defence" by the respondent, in relation to (d) it is mere speculation that employees would inevitably lose their jobs, and in relation to (f) the primary judge did give appropriate weight to the Commissioner's opinion. 165One wonders for example, how the primary judge could have asked himself the question, "what was the likelihood that the public would regard it as totally unacceptable that the Police Force should have amongst its senior ranks, an officer who thought that exposing his penis in public places was 'a bit of fun' and not 'indecent'?" when his Honour found, correctly, that the respondent accepted that his conduct was inappropriate and unacceptable and had demonstrated remorse and contrition. Harsh by a fine margin 166It was submitted that given his Honour found the removal was harsh by a "fine margin" the significance of the errors made suggest that, but for those errors, the result would have been different i.e. once corrected, they serve to "shift the balance" in favour of a contrary conclusion (i.e. removal not harsh): see Collins at [66] and [69]. 167The appellant has not identified any error in his Honour's consideration of the seriousness of the misconduct or his Honour's treatment of the question of harshness that would shift the balance, even by a fine margin, in favour of a decision that the removal was not harsh. Relief 168The appellant submitted his Honour, having correctly concluded that it was impracticable to countenance reinstating the respondent to his "former position" as a Sergeant, then erred in concluding that he could and should order the "re-employment" of the respondent into the position of Senior Constable Level 5 Step 1. It was contended the error was made on a number of bases. 169As to the first basis, it was submitted the Commission's re-employment power set out in s 89(2) of the IR Act, insofar as it bestowed power to make an order for re-employment into "another position" that is "available" and "suitable", carried with it by necessary implication that the other "position" is of a comparable level/status (and pay rate) to that of the worker's "former position". The power to re-employ was not a power to promote or demote a worker at all, let alone as a form of further "punishment". The Commission's "punitive" powers were limited to refusing to make a "continuity" order under s 89(4) and/or to decline the payment of any back pay pursuant to s 89(3) of the IR Act. 170Section 89(2) of the IR Act provides: Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. 171The reinstatement power is provided for in s 89(1): Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. 172It will be observed that s 89(2) provides the Commission with a wide discretion to order re-employment in another position that the employer has available and that, in the Commission's opinion, is suitable. Unlike s 89(1), s 89(2) does not contain a qualification on the Commission's discretion to the effect, for instance, that re-employment must be to a comparable position on terms not less favourable. One would have expected that if the legislature had intended that in forming an opinion as to what position was suitable the Commission was to be limited to re-employment in a comparable position, the provision would have expressly said so. However, the suitability of the position is entirely a matter for the Commission, subject to a position being available. 173The power to re-employ is not concerned with demotion or promotion or punishment. It is recognition of the fact that there will be circumstances where reinstatement to a former position is impracticable, but there may be a suitable position available in which the person may continue in gainful employment. If reinstatement is impracticable, the Commission is required to consider re-employment, not for the purpose of demotion, promotion or punishment, but as the next alternative in the trilogy of options available under s 89 of the IR Act. 174The appellant submitted that even if power to demote, promote or punish did exist in "unfair dismissal" proceedings under the IR Act, it did not exist in removal review proceedings under the Police Act . This is because of the operation of the implied repeal principles: see Ferdinands. 175This proposition proceeds on a false premise as we have explained: considerations relating to demotion, promotion and punishment are not relevant to the exercise of discretion under s 89(2). Nevertheless, the appellant submitted Pt 9, Div 1 and 1A of the Police Act bestow upon the appellant the power to order, inter alia , a reduction of a police officer's rank or grade if that officer has engaged in misconduct: see s 173(2) of the Police Act . Furthermore, it was submitted, there was nothing in either Divisions 1, 1A, 1B or 1C of the Police Act that bestowed upon the Commission in Division 1C Review proceedings, the right to exercise the appellant's internal disciplinary powers under s 173 of the Police Act under the banner of a re-employment order under s 89(2) of the IR Act. Similarly so, s 89(8) of that Act did not permit a demotion as a "term" or "condition" of a re-employment order: see Director General, New South Wales Dept of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244. The appellant submitted: There is no such power as the two statutory regimes cannot be reconciled/operate concurrently because the Appellant does not/cannot lose his internal disciplinary power/discretion, because of the way in which the Commission has exercised its power to review the Appellant's removal decisions. Given that internal discipline is first a matter for the Appellant, and only some of his decisions are then reviewable: see s.173 Police Act, Parliament cannot have intended that this Commission can exercise that internal power on a final basis in Removal review proceedings, i.e. with the Appellant then bound by the Commission's view, even if he does not agree with it and would not have made that decision himself under s.173: see Ferdinands . (emphasis in original) 176It seems to us that it would be an odd outcome if the Commission were to find that a decision to remove a police officer was harsh and reinstated the officer in his or her former position on terms not less favourable to the officer in accordance with s 89(1) of the IR Act, and the Commissioner then sought immediately to reduce the officer's rank or defer a salary increment as a disciplinary measure pursuant to s 173(2) of the Police Act because the Commissioner did not agree with the Commission's reinstatement order. 177Nevertheless, this is what the appellant seems to be suggesting: that if the Commissioner does not like the Commission's decision it is open to him to take disciplinary action under Div 1 of Pt 9 of the Police Act . In other words, if the Commission in this case had reinstated the respondent it seems to be the appellant's position it would have been open to the Commissioner to reduce the respondent's rank as a disciplinary measure, but that as the Commission had forestalled that option, the Commission had wrongly intruded into the Commissioner's jurisdiction under Div 1 of Pt 9 of the Police Act . 178It may be that despite the oddness of it, the Commissioner is entitled to exercise his disciplinary powers in respect of an officer who has been reinstated by an order of the Commission. This would be because the question of discipline by the Commissioner is a separate and distinct question from that of the Commission's power to order relief under s 181E of the Police Act . However, we do not accept that the Commission is precluded from ordering re-employment to a lower rank in exercising its power under s 89 of the IR Act. 179Ferdinands has no application; it was concerned with two separate pieces of legislation that, for example, did not contain a provision such as s 181G of the Police Act , which provides that certain provisions of the IR Act apply to an application for a review under Div 1C in the same way as they apply to an application under Pt 6 (Unfair dismissals) of Ch 2 of the IR Act, including s 89 of that Act. 180The issue in Ferdinands was whether the Police Act 1998 (SA) and the Industrial and Employee Relations Act 1994 (SA) (this Act is now known as the Fair Work Act 1994 (SA)) could apply to the termination of appointment of police officers. 181Applying a test of inconsistency, the majority found that the Police Act (SA) impliedly repealed the Industrial and Employees Relations Act (SA) to the extent that the latter would have operated on the termination of appointment of police officers. It was found that the Police Act (SA) was intended to be exhaustive on this subject matter. 182The appellant did not point to any aspect of the decision in Ferdinands to support its submission that s 89(2) was impliedly repealed, other than relying on the general implied repeal principles. Those principles involve construing the relevant Acts to determine whether there is an inconsistency: see Ferdinands at [18] and [47] per Gummow and Hayne JJ. There must be very strong grounds for implied repeal; enactments must be "so inconsistent or repugnant that they cannot stand together": Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10 per Barton J. See also Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 at 359 per Kitto, Taylor and Owen JJ. 183We do not consider that the provisions of s 89(2) of the IR Act and the Commissioner's power under Div 1 of Pt 9 of the Police Act are so inconsistent they cannot stand together. As we have stated, re-employment is not concerned with punishment; it is not a disciplinary measure. There is no inconsistency between an order to re-employ a former police officer and any action, reviewable or non-reviewable, allowed to be taken as a disciplinary measure under Div 1 of Pt 9 of the Police Act . 184It was next submitted for the appellant that even if it were concluded that the Commission did have power to re-employ the respondent to a lower position in removal review proceedings, his Honour erred in concluding that it was "not impracticable" to do so. In that respect, it was submitted, firstly, that his Honour failed to pay any, or any proper, regard to the fact that the respondent did not seek re-employment to any other position before his removal or during the trial. Nor did he embrace this "alternative" (as acceptable), even during closing address when it was raised for the first time by his Honour. 185Secondly, that his Honour seemingly concluded and found that the "immaturity" of the respondent (preventing a reinstatement order) was not a barrier to the "practicability" of him being re-employed as a Senior Constable in spite of the fact that Senior Constables also have "significant responsibilities" including "the obligation to impart knowledge, experience and the values of the New South Wales Police Force to junior officers" and to act as "role models". 186Thirdly, his Honour erred because the evidence revealed that it was impracticable, as the respondent's behaviour demonstrated that: (a) he lacked integrity in that he failed to take responsibility for (by being candid about) the reasons for his public exposure behaviour and the number of occasions on which he had engaged in such conduct; (b) he displayed a disturbing disregard for section 7 Police Act values and the Oath of Office that he took; and that (c) he showed a disturbing lack of "insight" with respect to his role model/mentoring obligations and as to community standards/expectations about indecent exposure in public: see, for instance, Gardiner at [139]-[147] generally (even when allowance is made for the fact that this was a case involving a pre-existing psychological condition); Reid-Frost No.2 at [128]-[130], [137], [154]-[158]; and (d) the "public interest" could not be appropriately served/protected if re-employment was ordered. 187As to the first matter, in exercising its power to determine the appropriate form of relief, the Commission is not bound by the preferences of the dismissed employee. The test to be applied, it having been found the dismissal was harsh, is that if it is not impracticable the person may be reinstated. If reinstatement is impracticable, the person may be re-employed. If re-employment is impracticable, the person may be paid compensation. 188As to the second matter, his Honour addressed the issue of immaturity at [331] and [333]: [331] At the time of the impugned conduct the applicant held the rank of Sergeant and was posted at the Maclean Police Station as a Sector Supervisor. From the time of the issuing of the Notice until his removal from the Police Force, the applicant retained his rank of Sergeant and performed various senior duties ranging from Station Manager to Shift Supervisor at the Grafton Police Station. On any account, then, the order of reinstatement sought by counsel, on behalf of the applicant, must be seen as having the effect of returning the applicant to a senior position in the Police Force at the rank of Sergeant. ... [333] Having regard to the conclusions reached in this decision, however, I do not consider that it is appropriate to restore the applicant to his former senior position. I do not preclude the possibility that, after the applicant has the opportunity of confirming the effectiveness of his rehabilitation and giving effect to the faith that senior officers have in him, he may regain a more senior position. I do not consider, however, that, consistent with the proper management of the Police Force, the applicant should, at this stage, be returned to a position of seniority of the kind that he held prior to his removal. Whilst he has demonstrated rehabilitation as to his alcohol problem, I have found that this factor does not entirely excuse his conduct, which involved a level of immaturity of character. Hence, I consider it is impracticable to reinstate the applicant to the position and rank of a Sergeant of Police (carrying out senior duties such as Station Manager or Shift Supervisor). Indeed, I consider that one condition of his re-employment (to which I shall return) should be that he is not eligible for promotion for a period of 12 months: Miller at [125]. 189It is apparent that his Honour's reference to "immaturity" has to be seen in the context of the respondent's former position being that of Station Manager/Shift Supervisor at Grafton. His Honour considered, because of the "immaturity of character", it was not consistent with the proper management of the Police Force that the respondent be returned to a position of seniority of the kind that he held prior to his removal. It was open to his Honour to come to this conclusion, as it was to reach the conclusion that re-employment to Senior Constable was practicable. 190As to the third matter, we have addressed each of those complaints earlier in our decision and found no error. 191We do not consider there was any error by Walton J in ordering the re-employment of the respondent. Conclusion 192Following an exhaustive examination of all the relevant considerations, Walton J concluded that whilst the misconduct was serious, removal from the Police Force was too harsh a consequence. His Honour considered that it was impracticable to reinstate the respondent and determined that the respondent should be re-employed as a Senior Constable. 193It is without doubt that the respondent's conduct fell into the class of serious misconduct. Minds might differ about whether removal was harsh. Even his Honour, it seems, may have reached a different conclusion given that it was only by a "fine margin" he decided that removal was harsh. We also may have come to a different view. But the authorities make clear that is not the test; we are required also to find error. No error exists. 194Accordingly, we propose to dismiss the appeal and in doing so to make the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The stay of the orders of Walton J on 2 December 2010 is dissolved. Decision of Kavanagh J 195I have had the benefit of reading the majority judgment of the Full Bench in this matter. I am unable to agree with their Honours' decision to uphold the reasoning of Walton J, Vice-President who came to the conclusion there was established "serious misconduct" but given the "ameliorating" circumstances, the termination of the employment by the Commissioner of Police of the respondent, a sergeant of police, was "harsh". Commissioner's Decision to Terminate Employment 196The Commissioner published "Reasons" for finding he did not have confidence in the respondent's suitability to continue as a police officer. The Commissioner held the respondent "inappropriately exposed" his penis at a work Christmas function in 2008 where the exposure was significantly aggravated by the fact the officer admitted to having deliberately attached a bottle opener to a piercing in his penis as a "party trick". Subsequent conduct allowed another serving officer to open a beer bottle with the bottle opener while it was still attached to his penis. The exposure was to a number of other police officers and at least two civilians. It occurred at a work-related function in a public place in close proximity to other members of the public. The exposure followed a written warning from Professional Standards Command about the dangers of excessive alcohol at work Christmas/end of year functions. The incident was not the first time he had engaged in that type of conduct and he had been counselled in September 2005. 197The Commissioner found "the fact that you conducted yourself in this manner, in the presence of work colleagues and other civilians is and of itself serious misconduct". He found: the preparation by the officer before performing his party trick was "deliberate"; the exposure of his penis had occurred twice that evening (with suggestions he offered to do so a third time); the conduct "was highly likely to be offensive". 198The Commissioner then opined the conduct was contrary to the Police Act 1990 , the Police Regulation 2008 and the NSW Police Force Code of Conduct and Ethics and in breach of s 7 of the Police Act which states the expected " values of members of NSW Police Force"; Regulation 9(1) of the Police Regulation which stated the expected " Responsibilities of off-duty officers"; Point 1 of the NSW Police Force Code of Conduct and Ethics which relevantly requires upholding the good reputation of the Police Force on and off duty; Point 4 of the Code which requires an officer to treat all with respect; Point 5 of the Code which requires compliance with lawful direction; Point 6 of the Code which requires compliance with the law whether on or off duty. 199The Commissioner went on to conclude the following: I have taken into consideration all of the circumstances, the nature and extent of the allegations given your history of the similar behaviour in 2005 and the fact that you were provided a warning on this occasion. You appear to have a blatant disregard for this previous warning. I have also taken into consideration that you were issued with a Region Commander's Warning Notice in 2002, I am satisfied that you must have been aware that any further issues may result in reviewable action or your removal from the NSW Police Force. As a Sergeant in the New South Wales Police Force you are required to have an understanding of appropriate behaviour and maintain positive and professional relationships with your colleagues and the community. Prior to attending the police function at the Yamba Hotel a message was circulated as a warning to officers to behave appropriately. In your position as sector supervisor you should have been upholding these standards. You also appear to have a blatant disregard for this warning. In all the circumstances, I consider that your conduct has fallen well below the standards and expectations of both the community and the NSW Police Force. I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers will act: professionally at all times; with ethics and integrity; and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. 200The Commissioner, therefore, relied upon a number of reasons to reach his decision, before concluding the respondent was not suitable to be a police officer leading to the decision to terminate his employment, namely: the nature and extent of the allegation of "serious" misconduct in 2008, the fact there had been prior counselling arising from a "similar incident" in 2005, the fact that the misconduct constituted a breach by the officer of the standards required of a senior officer under the Police Code of Ethics and, as well, was conduct in breach of community standards. Decision at first instance 201The challenge by the respondent before Walton J was not to the Commissioner's finding as to serious misconduct (although some facts were disputed) but to the Commissioner's decision to terminate. The respondent contended before Walton J that the decision to terminate the employment was, in the circumstances, "harsh". Walton J, acknowledged the position of the Full Bench in Hosemans v Commissioner of Police (No 2) [2004] NSWIRComm 253; (2005) 138 IR 159 at [134] when he noted his task was to make at [19]: a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. 202His Honour at [39] determined to first resolve "factual controversies" raised by the respondent related to the "impugned conduct" which he clearly identified as the December 2008 incident. The 2008 "Impugned Conduct" 203His Honour considered the facts related to the 2008 incident as follows at [210]: 2. ... The applicant initiated a discussion regarding "tattoos and body piercings". During the course of that discussion the applicant explained he had his penis pierced. He further revealed he had a 'party trick'. ... 3. At some stage during or at the close of the discussion, the applicant went to the toilet to prepare for his 'party trick'. On this occasion, the trick involved inserting a ring attached to a bottle opener through his penis piercing (known, when a ring is attached, as a 'Prince Albert' piercing). This preparation took five to ten minutes. It was during his movement to or from the toilet that he noticed all other patrons, other than the party attendees, had left the restaurant. 4. Upon returning from the toilet ... He stood, unzipped his trousers and exposed his penis with the ring and the bottle opener attached. At the time the applicant was facing the plastic sheeting with his back to the inside area of the restaurant. This was the first occurrence of the impugned conduct, which lasted a matter of seconds. 5. Sometime later in the evening, the applicant was involved in the second occurrence of impugned conduct. Again, the applicant, with his back to the restaurant, stood and removed his penis from his trousers. However, on this occasion, he allowed [name] to open his Corona with the bottle opener still attached. The extent to which the applicant's penis protruded out of his trousers during this occurrence was unclear, but the applicant was holding his penis, thereby, to some extent, obscuring visibility of it (although the nature of the act being engaged in would have been plain enough to a nearby observer). ... 6. There is some doubt about whether the applicant engaged in the impugned conduct on a third occasion. ... I have proceeded on the basis that there may have been a third occasion in which the applicant engaged in the impugned conduct on the evening in question but there is some uncertainty as to who witnessed the third occurrence ... 7. As to the exposure of the conduct to the public, I have found there were no other members of the public in the restaurant at the time of the impugned conduct other than attendees of the party. ... His Honour also concluded some officers: 8. ... did not find humour in the applicant's behaviour (as other officers inside the restaurant did) and disassociated themselves from the conduct. ... the true nature and impact of the conduct which ... forced some members of the party to remove themselves, not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable. 204His Honour examined evidence and considered the contribution of alcohol to the 2008 incident and concluded at [260]: ... alcohol was a contributing factor in the applicant's behaviour. However, that factor cannot wholly justify or excuse this behaviour, and must simply constitute a mitigating factor which will be taken into account in the consideration of the applicant [sic] before the Commission. The Second 2005 incident 205His Honour, as to the respondent's conduct in 2005 (the so called "Wanaaring Incident") (which the Commissioner referred to as being "similar behaviour") and which was followed by a police "warning" which was in the manner of counselling described this incident as follows at [230]: ... The applicant, who was off duty at the time, played pool with [name], [name] and [name]. The applicant had a friendship with the women. A conversation arose about tattoos and body piercings that each of them had. [name] asked to see the applicant's 'Prince Albert' piercing and they went to an area in the hotel near the poker machine wall with a view to avoiding public observation. The applicant then undid his fly and removed enough of his penis to show her his piercing. He was wearing a ring at the time. This occurred for a matter of seconds and, as the evidence reveals, both laughed before returning to the other women at the pool table. [name] took no offence. The applicant stated he was not intoxicated. His Honour then chose to compare the 2005 and 2008 incidents, reasoning at [234]: ... it may be accepted that there were similarities between parts of the impugned conduct [2008] and the applicant's conduct in 2005. The similarity extends to the applicant exposing his penis with the 'Prince Albert' piercing (to the extent that there was a ring inserted in the penis on both occasions) to another person in a public place, albeit with some attempt to avoid disclosure to any other person wider than the intended audience. The two events differed in a number of respects. The impugned conduct occurred in front of a larger group of people who had gathered at a work-related function. It included more than one display; the second, in one respect, in a more exaggerated form. The Wanaaring incident occurred when the applicant was off duty and playing pool in a hotel with some female friends. Further, the impugned conduct occurred over a period of time; was deliberate (at least for entertainment purposes) and largely (but no wholly) initiated by the applicant. The impugned conduct [2008] also involved him additionally attaching a bottle opener to his penis (and using it). ... there were similar elements ... but the impugned conduct was more serious. He also concluded at [238] that the fact that the 2005 conduct: ... gave rise to an investigation should have made him more aware of the adverse consequences of performing his 'party trick' on 11 December 2008. ... New evidence of similar conduct 206Evidence before his Honour however also revealed two other incidents of exposure in a public place. These incidents were not revealed to the Commissioner nor during the police investigation into the 2008 event. The Commissioner had relied upon the limited admission of the respondent during the police investigation of the 2005 Wanaaring incident where the respondent revealed: unfortunately I've had a, a previous issue, similar issue to this when I was stationed in the west of the State where somebody had heard about me doing my party trick. Incident in 2002 207The Commissioner took the above admission to refer to the Wanaaring incident in 2005. However, the respondent revealed in evidence before his Honour at [239]: Q. Can you tell His Honour when and where that occurred? A. There was a Christmas party or a work Christmas party in 2002 when I was working in Sydney where myself and a couple of fellows I worked with were out drinking late at night and I showed those 2 fellows and we were in a nightclub. ... 208His Honour concluded from all the evidence placed before him as to this 2002 incident at [240]: [240] ... [it] occurred in a nightclub in 2002 after the cessation of a Christmas party. The applicant was at the nightclub with three other serving police officers (holding respectively the ranks of Superintendent, Sergeant and Constable). He displayed his piercing to those persons in a room or section of the nightclub in a similar fashion to the Wanaaring incident. Other patrons were present but could not see the applicant's display, which took place over a matter of seconds. It was never suggested to the applicant that his conduct that evening was unacceptable. Of the persons observing the conduct, two officers remain in service (holding the ranks respectively of Assistant Commissioner and Inspector). Incident in 2005 209The respondent then revealed a further incident which, on his evidence, was another incident in 2005 but which occurred prior to the Wanaaring incident which led to his counselling at [239]: ... Then there is another occasion I can remember, in 2005 when I was on the Sergeants' course at Goulburn. We were in a restaurant but we had a closed off section of the restaurant so it was only the people in our - actually in the restaurant and we were in the section that we were. Again, it was getting late in the night and different fellows were getting up telling jokes and when I come to my turn I did the party trick at the Sergeants's (sic) course in front of the other sergeants of the course. His Honour concluded as to this evidence at [241]: [241] In relation to the events of 2005, ... the applicant had attended a gathering of Sergeants (there was one Senior Sergeant) in a closed-off section of restaurant after the Sergeants' Course held in Goulburn. The officers were sitting in a circle "telling dirty jokes" in order to, apparently, entertain each other.. For his contribution, the applicant undertook the 'party trick', but with a room key attached to his penis through his piercing. His performance lasted a matter of seconds, was met with laughter and encouragement. There was no complaint made at the time or thereafter. There was certainly no disciplinary action taken as a result of the conduct on that occasion. Three procedural incidents 210As to the Commissioner's mention in his Reasons of the receipt by the officer of prior "warnings", his Honour examined the evidence as to the complaints history of the respondent. The respondent's personnel record revealed the following. The 1997 Incident 211There was an incident in 1997 where the respondent and another off duty office made threatening comments to staff at a Club in the context informing them they were police officers. The evidence showed the complaint was, as his Honour noted, "successfully conciliated". His Honour concluded at [211]: "It was clear, however, that no disciplinary action was taken." The 1998 Incident 212There was a second incident in 1998 where the respondent was found to have flushed cannabis down a toilet in breach of police procedure. It was also noted by his Honour this incident was "successfully conciliated". His Honour then concluded as a result of this incident there was at [211]: "No disciplinary action was taken". The 2002 Incident 213There was a further incident in 2002 which clearly led to "the warning" referred to by the Commissioner (see [5] above in para 2 of quote). The formal warning arose following the respondent's appearance before the Police Integrity Commission. The inquiry found the respondent had three breaches of police procedure. The respondent had adverse findings made against him. He was then given a formal warning notice and also underwent a structure management plan for eight months. His Honour made no comment as to these facts. 214Before considering in his own review of the above facts to determine whether the dismissal of the police officer in all the above circumstances was "harsh", his Honour in his decision considered the seriousness of the misconduct with emphasis on the 2008 incident. He referred in that analysis to matters at [296] : "... adding to the gravity of the misconduct and those which mitigate or ameliorate". Seriousness of 2008 incident 215His Honour at [296] accepted the following matters added to the gravity of the 2008 misconduct as follows: * it occurred at a work function conducted at a public place and the norms required of a police officer under the Act, Regulations and Code were infringed at [296](a); * there was no evidence he failed to comply with a particular directive regarding alcohol abuse at Christmas functions. The Summary Offences Act 1988 "may" offer some guide to community views on what may constitute "offensive behaviour" at [296](b); * the conduct had potential to cause offence at [296](c); * the respondent was senior in rank to the junior officers attending the function (in 2008) and there was therefore some incompatibility between his conduct and duties at [296](d); * there was a risk of others at the party witnessing the conduct which had a divisive effect at [296](e); * the conduct was deliberate given he discussed it with guests at [296](i). 216His Honour considered elements which he concluded ameliorated or mitigated the seriousness of the misconduct. He opined: * the fact that the misconduct occurred late at night at the close of a Christmas function which was accompanied by the consumption of alcohol tended to colour, but not excuse, the conduct as did the absence of other patrons in the restaurant at that time at [296](g); * the number of times he exposed himself on a single evening given each occurrence was of short duration did not aggravate the seriousness of the conduct at [296](h); * given he discussed the "party trick" with guests, the preparation was deliberate but it was not "a deliberate and knowing breach of applicable rules and standards of fundamental importance" (and, for that matter, issues of integrity involving unlawfulness at [296](i); * the persons in the group did not take offence at [296](j); * he was entertaining his colleagues and their partners; and they made for him a comfortable environment at [296](k); * the failure of officers to intervene to stop the respondent (given he was senior) was immaterial at [296](l). 217His Honour having considered the seriousness of the offence "in context" (at [296](f)) then held as to the above evidence of prior incidents of misconduct: the 1997 and 1998 incidents were "irrelevant"; the 2002 Notice arising from a breach of procedural rules should attract "little weight". His Honour also determined as to the two further incidents of the respondent exposing his penis in a public place given they each occurred before the 2005 incident (which led to the counselling) they were also to be given "little weight" (at [302]); the advice and counselling following the 2005 incident made the respondent aware of the unacceptable nature of the 2008 conduct; a stronger rebuke earlier in time (including that in 2005) might have been better. Harshness 218His Honour then took into account as to "harshness" the respondent's appreciation of his misconduct and its inappropriateness; that he was genuinely remorseful and contrite; in so far as his behaviour was driven by alcohol consumption there had been rehabilitation (at [306], [320] and [333]). 219His Honour held as to "character" at [314]: [314] The character evidence in these proceedings has, in my view, two implications. First, in relation to the question of harshness, it provides a testament to the applicant's past good conduct and service to the Police Force, given in the clear knowledge that the applicant had engaged in an act of misconduct. These statements also lend support to the notion that the applicant may still play an ongoing, productive role within the Police Force. Secondly, the references are relevant to the question of the practicability of reinstatement or re-employment, with the character evidence offering clear support in favour of a positive finding in that respect. 220His Honour then considered the impact of events on the respondent and held the "stigma" attached to the 2008 event, the publicity and the respondent's future prospects, made the impact sufficiently severe to be a factor in mitigation in the consideration as to whether the decision was harsh at [316]. 221In balancing the public interest and the interests of the respondent, his Honour then referred to the respondent's genuine effort of rehabilitation and his abilities; his "problems associated with alcohol" (at [320]); along with the Commissioner's need to maintain the integrity of the Police Force. 222His Honour then concluded at [323]-[325]: [323] When there is a proper balancing of the factors described in para [297] (sic [296]), I do not consider that the misconduct of the applicant is sufficiently serious that, in and of itself, it required an adverse outcome to this application, irrespective of the aforementioned countervailing factors. This conclusion is not diminished because of prior misconduct engaged in by the applicant. The past misconduct, which is principally confined to the Wanaaring incident, must add to the seriousness of the misconduct in the sense that the applicant had previously been counselled against similar conduct. However, the prior misconduct was not so grave that its repetition, by a subsequent act of a similar character (or of a somewhat more significant character in this case), must result in removal under s 181D. In any event, the Police Force's approach to discipline for the past misconduct does tend to indicate that the penalty chosen on this occasion may, by comparison, be too severe. [324] Further, I consider there are a number of significant mitigating or ameliorating factors in favour of the applicant in this matter (which I have earlier discussed) which warrant a conclusion that the removal of the applicant was, in all of the circumstances, harsh. I have incorporated, in those observations, my assessment as to the public interest. [325] I have been particularly influenced, in that respect, by my conclusion as to the applicant's rehabilitation with respect to his alcohol problems and the prospect of a longstanding modification to his behaviour, such that the factors which led to a loss of confidence have been essentially eliminated. ... The Present Appeal 223This is an appeal against a discretionary decision. The principles governing appeals against discretionary decisions are those laid down by the High Court of Australia in House v The King (1936) 55 CLR 499 where it was held by Dixon, Evatt and McTiernan JJ (at 504-505): ... The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. ... (emphasis added) 224As was noted by the Full Bench of the Federal Commission in Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [5], identification of error usually focuses on matters referred to in the above passage. However, the High Court continued in House v The King (at 505): ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ... (emphasis added) 225While an appeal bench does not grant an appeal merely because it would have reached a different conclusion from the member at first instance, as such an approach would be at odds with the principles recited in House v The King, it has been noted by the Full Court of the Federal Court in GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27] that: where the outcome is so at odds with what the Full Bench considers a proper outcome that the epithet "manifest injustice" can [be] [sic] properly applied. Conclusion 226For reasons which will become evident, I consider that the proper exercise of discretion at first instance was, on the evidence before his Honour, so clearly in favour of finding that the termination was not harsh that the decision to uphold the respondent's application for unfair dismissal constitutes a "manifest injustice" and was unfair. 227In his Honour's decision to dismiss any consideration of the two similar incidents (of exposure of his penis in a public place) being of "little weight", because both incidents occurred before the counselling which arose from a further 2005 incident ( "Wanaaring Incident") there was error. The persistence of similar acts to the impugned conduct was new evidence before his Honour. Each incident revealed similar conduct by the respondent in that he exposed his penis in a public place. Not only was there a similarity in the nature of the conduct on each occasion, on the evidence, from 2002 to 2008, that is on four separate occasions, the conduct became more serious progressing from showing, in a public place, a simple ring in a piercing on the penis, to attaching a key to the ring in the piercing, to finally attaching a bottle opener to the piercing and allowing the bottle opener to be used. All of the incidents occurred in public places, all either in a bar or restaurant and two occurred while at work Christmas parties. Alcohol was only mentioned in two of the incidents that in 2002 and the impugned conduct of 2008. In determining all conduct prior to the 2005 counselling should have "little weight" and in stating the similar past misconduct "was principally confined to the 'Wanaaring Incident'", his Honour failed to consider the similarities in each event and therefore gave no weight to the full nature and extent of the misconduct that was placed in evidence before him. 228His Honour in his decision at [296] therefore focussed on the facts of the 2008 incident and mitigating factors related to that incident, limiting his consideration as to the seriousness of the misconduct to the evening of 11 December 2008. In so limiting his consideration, his Honour was in error. 229Further, it was an error in considering the "context" of the 2008 conduct (see at [296](f)) in not including in that consideration the misconduct occurred after counselling. Such a fact had to be given weight when considering the seriousness even when the consideration was limited to an analysis only of the conduct in 2008. While at [323] his Honour acknowledged there was counselling, his Honour went further and criticised that counselling inferring it should have been more severe perhaps meaning a formal warning should have been given. His Honour treated the fact of the counselling as an act which served as a barrier to what was his Honour's obligation to consider all of the similar prior incidents. Such reasoning allowed his Honour to discount even the second 2005 Wanaaring incident (which led to the counselling) as less serious in comparison with the 2008 incident but as well to discount the other prior incidents. 230Further, the approach his Honour took to the determination of the seriousness of misconduct did not adhere to that long approved principle by the Full Bench as enunciated in Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 where Cook J adopted the test posed in Lord Evershed M R in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285. The misconduct must have the quality of "wilfulness" and constitute a "deliberate flouting of the contractual conditions". The contractual conditions in this case were enunciated in the Police Act 1990 , the associated Regulations and the Police Code of Conduct and Ethics. Particulars of the relevant provisions were outlined by the Commissioner and the breach of those particular standards had to be considered by his Honour. 231The Commissioner dismissed the respondent not only for the 2008 misconduct but determined it was conduct which, in the context of prior counselling, was misconduct which breached those standards and the respondent, he found, was therefore not suitable to be a police officer. The Commissioner therefore placed great reliance in his reasons not only on the nature and extent of the 2008 allegation but that it was conduct after the respondent had been counselled. The Commissioner also gave emphasis in his reasons for termination that the misconduct was, he perceived, a breach of both community and police standards. 232His Honour dealt with the issue as to whether there was a breach of standards required of a police officer but only in the consideration of the 2008 event and thereby his Honour failed to take into account the fact that there were four separate incidents of similar misconduct to consider, all of which it could be held breached the relevant Police Codes. In his Honour's consideration of the 2008 misconduct in the context that the respondent was a police officer, his Honour commented at [296](a): ... The Commissioner referred to s 7 of the Police Act , Reg 9(1) of the Police Regulation 2008 and points (1) and (4) of the Police Code of Conduct and Ethics. Although there are questions as to the degree of encroachment upon these standards in this case, these norms were, nonetheless, infringed by the applicant's misconduct. Further, the Commission should evaluate the conduct of police officers having regard to the special character of their employment and the need for discipline and high repute: (see the minority judgment of Kirby J in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [113]). This comment was made when his Honour was considering the seriousness of the 2008 conduct alone. His Honour simply found "infringement" of the norms in the 2008 conduct. While his Honour made a general finding the conduct was a breach of the norms, he failed to give his reasons. There was no further consideration by his Honour of those "norms" relied upon by the Commissioner as recited in the Police Act, Regulations and Code of Conduct and Ethics in relation to the 2008 conduct (or any of the other similar incidents revealed in the new evidence). However, in a fresh view of the Commissioner's decision his Honour was obliged under s 181F of the Police Act 1990 to consider the following: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from 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 233His Honour, therefore, failed to give weight to the Commissioner's reasoning that the breach of police standards was one of the grounds for dismissal. Further, his Honour failed independently to reach his own conclusion as to whether all the incidents of misconduct which were revealed before him were a breach of Police standards. In the findings of fact, his Honour placed emphasis on the fact of the seniority of other police officers attending at the incidents and not complaining and the approving reaction of those officers to the "party trick". His Honour accepted there was encouragement to the respondent to perform his "party trick" and sometimes that encouragement came from senior officers. His Honour also found in 2008 the respondent felt "comfortable" to expose himself in a public place in the company of other junior police officers (and some partners). His Honour in such reasoning failed to give consideration to the misconduct per se when measured against the individual police officer's personal responsibility for his behaviour particularly when measured against those standards of behaviour required of a serving police officer whether on or off duty. 234The evidence that there was a culture of acceptance for such conduct within the police force and at senior level (even when limited to only considering the context of the 2008 conduct and its seriousness) cannot be used to negate the personal obligations held by a police officer under the Act, Regulations and the Code of Conduct and Ethics which are part of the employment contract. His Honour, therefore, failed to consider in context the "special character of employment" of a police officer (which principle he acknowledged at [296](a)). It was necessary to consider the 2008 conduct, as well all the incidents of similar conduct, and how they breached the police standards. His Honour failed to consider the personal contractual obligations carried by the respondent as a member of the Police Force given the misconduct placed before him. In simply stating an incident "breached the norms" his Honour fell into error. 235Further, even if one accepted the basic findings of his Honour as to the nature and extent of the 2008 conduct read in the context of the "norms" required of a police officer, his Honour was then required to evaluate that conduct with reference to the relevant criteria. A recitation of the authority which refers to the special character required in the employment of police officers fails to address the nature and extent of the misconduct in the context of the rigorous standards applicable. His Honour failed to evaluate the respondent's repeated misconduct and its extent by reference to the particular values required of a police officer under the Police Act 1990; the defined responsibilities of a police officer on or off duty; whether such misconduct brought discredit to the police force; whether, given the nature of conduct, the police officer was acting with respect to persons. 236His Honour also failed to consider at all in his reasoning that the conduct was in breach of community standards. His Honour commented at [296](b) of the decision: ... in the absence of charges being laid against the applicant, the most that may be said of that matter is that the applicant may have, in other circumstances, attracted attention under the Summary Offences Act (s 5) and that the statute offers some guide, in these proceedings as to community views about what may constitute offensive behaviour. Further, no reliance was placed upon the Anti-Discrimination Act 1977 by the Commissioner. As previously observed, in the absence of a submission specifically identifying how that legislation may have operated in the circumstances of the applicant's conduct on 11 December 2008 (and there is no clear guiding light, in that respect), I propose to take that matter no further in this decision. His Honour failed in this reasoning to make any findings related to the 2008 conduct (or the other similar incidents) as to how the conduct should be perceived within the measure of community standards. To recite that various statutes offer "some guide" but not to apply such guiding principles in his assessment of the seriousness of the misconduct viewed within community standards, his Honour was in error. The evidence persuades each act of exposure was in a public place; on at least two of the occasions women were present and on one occasion some police officers and their partners distanced themselves from the exposure of the respondent's penis in the performance of the respondent's "party trick". To suggest the 2008 conduct was an act of "self aggrandisement" is not to measure such conduct against community standards. 237This was not a police officer who presented before his Honour with two occasions of aberrant behaviour within one evening in the context of prior counselling as his Honour narrowed down his consideration. Rather what his Honour had before him, on the evidence, was an officer who, early in his career, had had his commitment to follow proper police procedures called into question in 1997/98 and in 2002 had had a formal Warning because of serious procedural errors in 1999 and 2000 as exposed before at the Police Integrity Commission. Then in 2002, he exposed himself in a public place, repeated the conduct twice in 2005, was then counselled but again in 2008 exposed himself in a public place, in a more serious manner. 238The appellant complained as to his Honour's finding as to the attitude of the respondent to the seriousness of the conduct at [304]-[305] given his Honour's conclusion he was confident the cause of the misconduct was rectified. Such a conclusion was an error given, in evidence before his Honour, the respondent continued to characterise the conduct as a "party trick" and a "bit of fun", "not indecent behaviour" and even complained in evidence that the third parties who lodged the complaint had "an axe to grind". Notwithstanding his Honour had the advantage of seeing and hearing the witness such evidence cannot be interpreted to be sufficient to satisfy his Honour's conclusion that the cause of the misconduct was "eliminated". In so concluding, his Honour was in error. 239His Honour found the presence of alcohol at each event an important consideration. While accepting that alcohol could not "wholly justify or excuse" the misconduct in 2008, his Honour went on to consider the "rehabilitation" of the officer in the context of his alcohol consumption as a major factor in his harshness consideration. While accepting alcohol use did not excuse the 2008 behaviour, his Honour then went on to conclude at [320]: [320] A further factor is relevant to the public interest. Given the manner in which the community is often vexed by problems associated with alcohol, it is in the public interest, in my view, that encouragement be given to genuine efforts of rehabilitation which have the prospect of a lasting modification of misbehaviour deriving from such infirmities. This approach cannot, of course, be without limits as the seriousness of the misconduct may represent a barrier to such a consideration applying in a particular case of alcohol related behaviour. I do not, however, consider that this is such a case. It appears his Honour was prepared to give little weight to the nature of the conduct nor its repeated extent prior to 2008 but yet allowed the effect of alcohol on the respondent (inferring consideration be given to the prior incidents) to weigh heavily in his Honour's public interest consideration that it was in the public interest (and by inference in the best interest of the police force) to continue to employ an officer who despite warnings continued the impugned conduct. In such reasoning, his Honour allowed the consumption of alcohol to become an issue which distracted from the primary issue as to whether given the nature and extent of the conduct in the context of counselling, the termination was harsh. In this reasoning, his Honour erred. 240To summarise, his Honour therefore was in error in determining all similar acts as of "little weight" as they occurred prior to counselling; in failing to make a finding as to the innate seriousness of the 2008 misconduct as assessed in the context of community values and standards and by reference to the importance of adherence of those values and standards. Further, given the nature of police work and its role in the administration of justice, his Honour made a further error in his assessment of the "explanations/excuses" offered by the respondent to explain the misconduct. His Honour gave those explanations more credibility and weight than a fair independent assessment would allow particularly given his Honour failed to assess the misconduct in the context of the standards of behaviour required under the particular employment contract of a police officer. Taking into account the nature and extent (after counselling of the 2008 incident), his Honour should properly have concluded the respondent's misconduct was so serious, that it constituted a fundamental affront to both community and police values and standards. 241In the context of the seriousness of the misconduct and the measures of that conduct within basic community standards and as well the rigorous standards required of a police officer, his Honour would not have considered that the mitigation/extenuating factors could outweigh or excuse the misconduct. His Honour, therefore, erred in concluding at [323]: ... I do not consider that the misconduct of the applicant is sufficiently serious that, in and of itself, it required an adverse outcome to this application, irrespective of the aforementioned countervailing factors. ... Such reasoning led to his Honour to find it was "reasonably open" and on the "margins" that the removal for the misconduct in 2008 was "harsh". 242In such a finding his Honour failed to consider the Commissioner's full reasoning for the dismissal which included the breach of relevant standards and the fact that the 2008 incident occurred in the context of counselling and past warnings. Further, his Honour gave no weight to the new evidence of the other similar incidents. Given the totality of the evidence before his Honour, a fair and just determination is the respondent is not suitable to be a police officer. 243Therefore, the finding by his Honour was plainly unjust or, as was said in GlaxoSmithKline , the outcome of his Honour's decision is so at odds with the evidence that there has been "a manifest injustice". 244I would therefore uphold the appeal. 245The majority has concluded in their consideration of appropriate orders as to the proper interpretation of s 89(2) re Re-employment Orders under the Industrial Relations Act 1996. I concur with that reasoning. Orders 246The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The stay of the orders of Walton J on 2 December 2010 is dissolved. ********** 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: 17 August 2011