Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25

Industrial Relations Commission New South Wales Medium Neutral Citation: Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25 Hearing dates: 4, 5, 7 and 8 November and 17 December 2013 Decision date: 29 May 2014 Jurisdiction: Industrial Relations Commission Before: Walton J, President Decision: The application filed in these proceedings by the applicant on 5 March 2013 is dismissed. Catchwords: POLICE - Police Act 1990 - s 181E review of removal of police officer under s 181D - conduct and integrity - agreed statement of issues - admissions re Commissioner's statement of reasons - pseudonym of SHK - allegations of rape and blackmail in notes provided to applicant by SHK - seven allegations against applicant - three re SHK - conflict of interest - failure to record two exhibits on COPS - notes containing criminal allegations re SHK - use of partner as interpreter - meeting with a person of interest - failure to follow proper police procedure, codes, policies and guidelines - Improper association with SHK - psychological, mental and physical factors in mitigation - absence of medically diagnosed depression - failure by investigator to interview another officer - failure by investigator to bring to Commissioner's attention an opinion expressed in a Legal Advice dismissing criminal charges against applicant - principles governing effect of dismissal of criminal charges against a police officer - serious misconduct and integrity findings - four allegations re inappropriate COPS access - conflict of interest re COPS access - COPS access for lawful GIPA request - extensive personal inquiries and searches on COPS whilst under an Interim Management Plan and without authority - updating narrative relating to an off duty road rage incident on COPS in self-interest - placement of adverse warning against member of public in anger and without justification - regulation 75 - principles of integrity of COPS system and its proper use - relevance of psychological factors affecting applicant in mitigation - serious breach of obligations and duties as a police officer - serious misconduct and integrity findings re COPS breaches - principles re grounds of unjust and unreasonable - principles as to procedural fairness - manner of investigation - delay - Investigating officer's approach to investigation - Jones v Dunkel issue - effect of procedural fairness issues on overall assessment - principles of harshness - seriousness and gravity of misconduct - admissions of misconduct by applicant - good previous work and service history - character references - seniority of rank at time of misconduct - age of applicant - remorse - stigma surrounding removal - consequences of removal - likelihood of reoffending interests of applicant - was removal disproportionate to misconduct - weighing of personal and financial circumstances and service record and character against gravity of misconduct - public interest - Institutional integrity of police force - conclusion - removal not harsh, unreasonable or unjust - order - application dismissed Legislation Cited: Crimes Act 1900, s 319 Government Information (Public Access) Act 2009 Police Act 1990, ss 7, 7(a), 181D(1), 181D(3)(a), 181D(3)(c), 181(E), 181E(1), 181F(1)(a), 181F(3)(a), 181F(3)(b) Cases Cited: Bigg v Police Service (NSW) (1998) 80 IR 434 Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 Commissioner of Police v Brennan [2008] NSWIRComm 52 Commissioner of Police v Lawrance [2011] NSWIRComm 109; (2011) 208 IR 139 Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 Department of Health v Kaplan [2010] NSWIRComm 65 Hosemans v Commissioner of Police ( No 4) (2005) 150 IR 263 Inspector James v Ryan (No 3) [2010] NSWIRComm 127 Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 Jones v Dunkel [1959] HCA 8; (1950) 101 CLR 298 Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 Morgan v Commissioner of Police [2009] NSWIRComm 184 Morgan v Commissioner of Police [2009] NSWIRComm 67 Owens v NSW Police Service (1998) 87 IR 1 Police Service Board v Morris and Martin (1985) 156 CLR 397 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police [2009] NSW IRComm 31; (2009) 181 IR 420 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Category: Principal judgment Parties: Terrence Vouden (Applicant) Representation: D H Nagle of counsel (Applicant) A T Britt of counsel (Respondent) Kim Smith & Associates Solicitors (Applicant) Norton Rose Australia (Respondent) File Number(s): IRC 157 of 2013