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 Judgment 1This matter concerns an application made under s 181E of the Police Act 1990 ('the Act') by Terrence Vouden ('the applicant') for a review of an order made on 25 February 2013 ('the order') by the Commissioner of Police ('the Commissioner' or 'the respondent') pursuant to s 18D(1) of the Act removing the applicant from the New South Wales Police Force ('the Police Force'). The order was founded upon a determination by the Commissioner that he did not have confidence in the applicant's suitability to continue as a police officer. That determination was based on two of the three statutory grounds available to the Commissioner for the removal of a police officer under s 181D, namely, the 'conduct' and the 'integrity' of the applicant: see Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [214] 'Van Huisstede'). 2At the time of the removal, the applicant had served in the Police Force for 12 years and 9 months. He held the rank of Senior Constable and was stationed at Burwood (his designation of 'Leading Senior Constable' had been removed by this time). 3The Commissioner's reasons for the decision to remove the applicant from the Police Force were provided in a document entitled 'Statement of Reasons' which accompanied the order ('statement of reasons'). Central to that decision was the acceptance by the Commissioner of seven numbered allegations contained within a notice issued to the applicant on 9 October 2012 pursuant to s 181D(3)(a) of the Act ('the notice'). Those allegations concerned incidents during the applicant's service in the Police Force between 28 April and 27 June 2011. The allegations referred to both on duty and off duty conduct. 4The allegations took the form in the notice of a statement of charge and a conclusion that may be drawn if the charge was made out. Each allegation was then accompanied by a narrative setting out the basis for the charge. 5It was accepted by Mr A T Britt of counsel, who appeared for the Commissioner, that, in substance, there were three sets of allegations with each set corresponding to a particular set of circumstances or course of conduct. The proceedings went forward procedurally with the issues being delineated in that fashion. 6It should be noted, at this juncture, that the first three allegations concerned, in part, the applicant's interaction with a Korean person between 28 and 30 April 2011. By the agreement of Mr Britt and Mr D H Nagle of counsel, who appeared for the applicant, the Commission ruled that person would be referred to by the pseudonym 'SHK'. The Allegations The SHK Allegations 7The first cluster of allegations was comprised of Allegations 1 to 3 respectively, which were expressed in the notice as follows: Allegation 1 On 28 April 2011 [SHK] attended Burwood Police Station and provided you with information relating to a serious criminal offence. There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities and having regard to the seriousness of the issue that you failed to make a record on the COPS. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the NSW Police Force Handbook, the NSW Police Force Crime Recording Standard, the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Statement of Values. Allegation 2 There appear to be grounds on which it could be concluded on the balance of probabilities and having regard to the seriousness of the issue, that you have received two written documents from [SHK], which contained details of a serious criminal offence, failed to properly record the documents as exhibits and kept them in your possession. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, the Police Regulation 2008, the NSW Police Force Handbook, EM010 Chain of Custody, and the NSW Police Force Code of Conduct and Ethics. Allegation 3 There appear to be grounds on which it could be concluded on the balance of probabilities and having regard to the seriousness of the issue, that you failed to identify a conflict of interest; formed an improper association with SHK; failed to take appropriate action following a report of a serious criminal offence; failed to contact a Korean interpreter; used Ms Green as an interpreter; used Ms Green to conduct preliminary enquiries into an allegation of a serious criminal offence; and between 28 April 2011 and 30 April 2011 acted in a manner that was inconsistent with duty as a Police Officer. In the circumstances there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, the Police Regulation 2008, the NSW Police Force Handbook, the Code of Practice for Crime, the NSW Police Force Conflict of Interest Policy and Guidelines, the NSW Police Force Conflicts of Interest (Improper Association) Policy and Guidelines, and the NSW Police Force Code of Conduct and Ethics. The 7 June COPS Allegation 8The second cluster of allegations was comprised of Allegation 4, which was expressed in the notice as follows: Allegation 4 There appear to be grounds on which it could be concluded on the balance of probabilities and having regard to the seriousness of the issue, that on 7 June 2011 you accessed the COPS and conducted an enquiry into yourself without authority, for your own personal interests and not in the interests of the NSW Police Force. In the circumstances there appear to be grounds on which it could be concluded that your conduct was contrary to the NSW Police Force Code of Conduct and Ethics. 9'COPS' is an acronym for Computer Operational Policing System. The 27 June COPS Allegations 10The third cluster of allegations was comprised by Allegations 5, 6 and 7 respectively, which were expressed in the notice as follows: Allegation 5 There appears to be grounds on which it could be concluded on the balance of probabilities and having regard to the seriousness of the issue, that on 27 June 2011 you accessed the COPS without authority for your own personal interests and not in the interests of the NSW Police Force, And that you conducted extensive and inappropriate enquiries into the confidential information held by the NSW Police Force relating to Mr David Lionel Roberts. In the circumstances there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, the Police Regulation 2008, the NSW Police Force Handbook, the Use of Resources Policy and Guidelines, the Computerised Operational Policing System (COPS) User Guide, the Code of Best Practice for Information Management, the NSW Police Force Code of Conduct and Ethics. Allegation 6 There appear to be grounds on which it could be concluded on the balance of probabilities and having regard to the seriousness of the issue, that on 27 June 2011 you placed an intelligence report on the COPS against the profile of Mr David Lionel Roberts warning other police officers to be careful in any subsequent dealings with Mr Roberts, without proper reason or justification. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to Police Act 1990, the Police Regulation 2008, the NSW Police Force Handbook, the Computerised Operational Policing System (COPS) User Guide, the NSW Police Force Code of Conduct and Ethics. Allegation 7 There appear to be grounds on which it could be concluded on the balance of probabilities and having regard to the seriousness of the issue, that on 27 June 2011 you failed to identify and report a conflict of interest when you: Conducted searches on the COPS into Ms Green's vehicle, Conducted searches on the COPS into the 'road rage' incident that occurred in 2009, Updated the Event in relation to 2009 incident, Verified the applicant's own update of the 2009 Event, Failed to report the conflict to your supervisor, Conducted further enquiries into Mr David Lionel Roberts. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, NSW Police Force Handbook, the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Statement of Values. Course of Proceedings 11It will be observed that each of the foreshadowed conclusions accompanying the allegations within the notice confined the Commissioner's decision to one based on conduct. The statement of reasons given by the Commissioner did not alter the effect of the conclusion contained within the allegations and, in the result, the Commissioner essentially found the charges made out with respect to the conduct of the applicant as alleged. 12As earlier noted, the ultimate orders made by the Commissioner were predicated upon the grounds of conduct and integrity. The Commissioner's findings as to integrity are found in the statement of reasons and, on Mr Britt's submissions, derive from the findings as to the applicant's conduct and his inability to recognise his true error such that he was unable to recognise the gravamen of his behaviour. Some further discussion about the reasons vis á vis integrity will be considered later in the decision. 13The applicant's challenge to the Commissioner's statement of reasons in relation to his conduct findings was limited to some particular matters of fact and characterisation, including the seriousness that might be attached to the findings. His counsel drew sharp issue, however, with conclusions drawn by the Commissioner with respect to integrity, contending, in particular, that the applicant's conduct constituted a mistake and was not affected by mal fides. The combination of those contentions on behalf of the applicant is found in the following submission: I have said that there is no mal fides in Mr Vouden's actions, that's why we challenge it in relation to integrity. In relation to conduct, I couldn't possibly challenge that because my client said he did the wrong thing, he did a boneheaded stupid thing and something which, with the benefit of hindsight, he would not do again. I could not possibly challenge conduct anyway based on my instructions and based on my instructions on the way this case is to be run. 14This confinement of the applicant's case occurred at the outset of the proceedings and resulted in some concomitant procedural steps designed to elicit the true issues in dispute. That process was undertaken by the applicant's counsel tendering a marked up copy of the Commissioner's statement of reasons (the marking disclosing where a challenge was made to those reasons) and the production of a document entitled "Statement of Issues" to which the respondent did not demur ('statement of issues'). 15In the result, the applicant made concessions as to the non-disputed elements of the statement of reasons although, as the matter proceeded, there remained some disputed factual issues bearing upon the seriousness of the applicant's conduct with respect to the allegations not squarely reflected in the statement of issues. Statement of Issues 16The statement of issues identified seven matters traversing fact, the nature of any breach of policy and procedure, and the justification for, or characterisation of, the applicant's conduct. 17As to the allegations concerning SHK, the statement of issues noted the following: 1. The Applicant's position is that the improper association with [SHK] falls at the lowest end of seriousness in relation to the range of improper associations which could be formed. 18As to the allegations concerning the COPS accesses, the statement of issues noted the following: 2. In addition to the three points (listed page 10 of Statement of Reasons), the Applicant also relies upon Mr Roberts having made an allegation that the person the subject of the complaint was intoxicated. 3. The Applicant disputes that the COPS entry was not brought to his supervisor's attention. The Applicant's position is that he submitted the entry for quality review and subsequent verification with knowledge that it would be reviewed by Station Sergeant Cullen. 4. The Applicant disputes that he did not identify himself as the driver in the notification. The Applicant relies on the second paragraph of the narrative added on 27 June 2011 at 16.30. 5. The Applicant having read the event disputed the accuracy of the version provided and accordingly entered the narrative for his version because the applicant had formed a view that the report contained inaccuracies and was seeking to correct those inaccuracies in the narrative. 6. The Applicant disputes that he breached clause 75 of the Police Regulation 2008 in so far as he did not divulge confidential information contained in the COPS entry to anyone outside NSWPF. 7. The Applicant disputes that there was no proper reason or justification for the making of amendments to the relevant COPS entry. The Applicant's Grounds 19The applicant's submissions will be summarised later in this decision. However, it is sufficient to note, for present purposes, that counsel for the applicant relied on each of the available grounds for review under the Act, namely, he contended that the removal was harsh, unjust and unreasonable: see Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 at [10] and [11] and the cases cited therein ('Lawrance (No 1)') with particular emphasis on the ground of harshness. The applicant relied on substantive as well as procedural issues. However, Mr Nagle placed emphasis upon the ground of harshness. General Principles 20As to the principles relevant to the disposition of the application, I adopt the principles stated by the Commission in Lawrance (No 1) to which I will return later in this decision. Approach to Issues in the Proceedings 21The economy in which the parties approached the proceedings (which is commendable) does not, however, remove the necessity, in this case, for the Commission to consider the respective allegations with some detail as part of reviewing the Commissioner's statement of reasons and the respective parties' cases. The background factual circumstances of each group of allegations, particularly those associated with SHK, will better elucidate the extent and the seriousness of the conduct engaged in by the applicant (and provide an opportunity to resolve the factual issues which I have mentioned above). 22The Commission must assess the seriousness of the conduct of the applicant, including factors of aggravation and mitigation, before turning to the consideration of, for instance, harshness. By this means, the Commission will be able to assess whether, in relation to harshness, the removal was disproportionate to the seriousness of the misconduct: Commissioner of Police v Lawrance [2011] NSWIRComm 109; (2011) 208 IR 139 at [83] and [89] ('Lawrance (No 2)'). 23Given the compartmentalisation of issues it will be convenient to examine those issues under each of the three categories described above, although that procedure does not remove the necessity of examining overall the seriousness of the applicant's conduct for the purposes of the review, and then, overall, the question as to whether the removal was harsh, unjust or unreasonable. This approach will also enable a closer evaluation of issues raised in mitigation such as the psychological or emotional state of the applicant when he embarked upon his conduct, although, again, an overall evaluation of this question needs to be made upon assessing the case for the applicant in the review. 24It will also be convenient to undertake the procedure required by s 181F in relation to each such category, again with the same caveat that an overall assessment as required by that provision must be undertaken before a final conclusion may be reached. The SHK Allegations Evidentiary Bases 25These allegations concerned the time period between about 7.50pm on Thursday 28 April and 10.40pm on Saturday 30 April 2011. An agreed chronology was tendered by the applicant. Mr Nagle noted that an issue existed with respect to item 19 of the chronology, namely, whether a female speaking Korean, who identified herself as a police officer, had spoken to Ms Nam. No resolution of this issue was sought by any party and hence it will receive no further attention in this judgment. A second chronology, which is limited to the events between 28 and 30 April 2011 is found in annexure 'RL4' to the affidavit of Detective Senior Constable Little sworn 30 August 2013. No issue was raised in the proceedings about the second chronology. I have drawn upon both documents in the following chronology of events. 26In addition to those documents and the uncontested elements of the Commissioner's statement of reasons, the following evidence (including the evidence in chief and cross-examination of the respective witnesses) bore upon these allegations: (1)The affidavit of the applicant sworn 19 July 2013 incorporating the response by the applicant to the notice dated 29 November 2012 ('the response'); (2)The affidavit of Inspector Gregory Thomas sworn 3 September 2013 and, in particular, annexure 'GT4' being the electronically recorded interview transcript of the directed interview between Inspector Thomas and the applicant at Burwood Police Station on 2 November 2011 ('the Burwood interview'); (3)The 'Commissioner's Confidence Submissions' (being Ex 5 in the proceedings). This was the material before the Commissioner for his consideration under s 181D. There was an annexure to that bundle of documents (annexure 15) which bore no description other than 3 dated headings and a signature of the applicant bearing the date 2 November 2011. It is clear from the Burwood interview that annexure 15 contained notes made by the applicant on or around 5 or 6 May 2011 ('the applicant's notes'); (4)The affidavit of Detective Senior Constable Rebecca Little sworn 30 August 2013; and (5)The affidavit of Hyang Ok Lee (Christine) Green ('Ms Green') sworn 4 October 2013. 27The sequence of events relevantly arising in this time period (and referrable to Allegations 1, 2 and 3) and my findings as to the applicant's conduct in that regard appear below. Chronology of Events and Preliminary Factual Findings 28On Thursday 28 April 2011, at around 6.45pm, the applicant was situated at the Burwood police station ready to commence his night shift as a Leading Senior Constable. The applicant was scheduled to commence his shift at 7.00pm. It was the fourth consecutive 12 hour night shift the applicant had worked that week. 29 At approximately 6.50pm, the applicant was asked to attend reception at the police station pursuant to a request from a Korean man who had asked specifically for "Terry". 30During a meeting with Leading Senior Constable Voetrell, shortly prior to being asked to attend the reception desk, the applicant had been informed that he had missed out on a position at Byron Bay (he had applied for a transfer to that location). 31When the applicant reached the reception desk at around 6.50pm, the Korean man ('SHK'), who spoke only broken English, handed to the applicant a document hand written in Korean ('the Korean note'). Because the station's evening briefing was about to start, the applicant asked SHK to wait. The applicant went to the briefing. Then, in the applicant's own words, he "returned and tried to work out what was going on". 32SHK asked the applicant to show the Korean note to the applicant's (de facto) wife, Ms Green, who is also Korean. 33The applicant was able to elicit SHK's name, date of birth, mobile telephone number and address, which the applicant wrote down on a piece of paper. 34During the Burwood interview, the following exchange took place between Inspector Thomas and the applicant: Q. 43. O.K. To get [SHK's] date of birth and, were you able to communicate with him sufficiently to obtain these answers? A. As I said at the start of the interview he spoke broken English, um, very poor English but I was just able to find out the basics that he wanted me to show the letter to my wife and I was able to get his, you know, where do you live, your phone number, um, and I said "I'll find out and get, and tell you". Q. Did he [SHK] wait around the station? A. He waited and that's probably when I wrote down the contact details. So then he's basically just said, "Give to, give to wife", something to that nature... Q52 Ah hmm A...so that's what I did. 35At the same time SHK had handed the Korean note to the applicant, he provided to the applicant a note hand written in English ('the English note'). In the course of the Burwood interview the applicant described the English note coming into his possession in the following way: Q140 How did that letter come to be in your possession? A That was in amongst the, amongst those documents, the handwritten letter in Korean. Q141. O.K. So at the time that you received the handwritten letter A Yeah Q141...you're saying that this was with it in English. A Yeah, yeah and he was asking me to give that to, to my wife, um, which made me a Senior Constable Little confused .... 36The applicant, in his response to the Commissioner's notice, wrote in this respect: He [SHK] said to me, give the notes to your partner and then tell me what to do. 37It is clear that SHK produced the English and Korean notes during the first exchange at the reception desk between SHK and the applicant. When the English and Korean notes are referred to collectively they shall be referred to as 'the notes'. It is also clear, on the applicant's evidence, that he had taken the notes into his possession by the end of the second exchange between himself and SHK. SHK asked the applicant to do two things, firstly to give the notes to his wife and then to give SHK guidance as to what to do. 38The English note said: Someone is Blackmailing me that I Raped her, and to Requesting $100K from me or else she is going Report me to the police. Can you please Organize a Korean Interpreter Service so I can explain to you in more Detail. 39The applicant's shift ended at 7.00am on Friday 29 April 2011. 40The applicant conceded in the response that he read the English note at or about the time of its receipt. Having not obtained an interpreter, the Korean note was not translated during the course of his shift. That document was translated for the applicant at some time on 29 April 2011 by Ms Green. 41Despite having read the English note and receiving the Korean note, the applicant omitted to take any step which would have the effect of alerting any other officer of the Police Force as to the communication in writing from SHK or SHK's request for assistance, before the end of his shift. 42At no time during the period from 7.00pm on 28 April to 7.00am on 29 April 2011 did the applicant create a COPS event, make any record on COPS or bring to the attention of any other police officer his transactions with SHK in relation to SHK's attendance at the police station or in relation to SHK's provision to the applicant of the notes or the information contained therein. 43At no time during the period from 7.00pm on 28 April to 7.00am on 29 April 2011 did the applicant contact a Korean interpreter or record the notes as exhibits. Nor did the applicant make any record during his shift that he had obtained the notes, intended to retain them and did, in fact, retain them. 44The applicant accepted that, during the period from 7.00pm on 28 April to 7.00am on 29 April 2011, he should have created an event on COPS, recorded the notes as exhibits, brought the matter of the existence of the notes and his discussion with SHK to someone's attention at the police station and contacted a Korean interpreter. 45The applicant accepted that these omissions constituted failures in his duty as a police officer and that his conduct was inappropriate. However, he proffered four explanations for these failures as follows; (1)He failed to follow proper procedure because of his psychological or emotional state, and was suffering from depression, anxiety and fatigue at the time he committed the errors of judgment during his shift commencing 28 April 2011; (2)The contents of the English note did not enter his consciousness on 28 April 2011; (3)Because of his involvement with the Korean community, he was angry and frustrated when SHK came to the reception desk on 28 April 2011 looking for help; and (4)Because of his knowledge of Korean culture, and SHK being Korean, he dismissed the allegations contained in the English note (during his shift) as exaggeration, misinterpretation by the writer of the note or out of character with the Korean community. (It might be noted that there is an interrelationship between these factors offered in mitigation. For example, the applicant raised that his psychological/emotional state may have caused, to some extent, him to mismanage the approach from SHK.) 46The applicant submitted that the first and fourth of these explanations carried over for the period from the morning of 29 April to 30 April 2011 thus continuing to be key factors which affected his subsequent conduct after the end of his shift. 47These explanations were contested in various ways by the Commissioner. It will be convenient to address these matters during the course of the following chronology of events, except the question of the psychological and emotional state of the applicant which will be considered at the end of the background chronology. 48On 28 April 2011 at 11.12pm, SHK telephoned Ms Green. He rang again at 11.18pm. The conversations lasted approximately two minutes and 13 minutes, respectively. The content of the conversations was not elicited during the course of the evidence. Ms Green's evidence was confined to a statement that she had two conversations with SHK on that evening and that the duration of the conversation was more than ten minutes between the two telephone calls. 49Upon leaving the police station at around 7.00am on Friday 29 April 2011, the applicant took both of the notes home. 50Sometime later on 29 April, Ms Green read the Korean note and had a discussion with the applicant about its contents. The applicant's appreciation of the seriousness of the allegation contained in the note at that time will be discussed in the course of outlining the subsequent events. 51It should be noted that the Korean note was formally translated by a Community Relations Commission Korean Interpreter for Detective Senior Constable Little on 4 May 2011. The Korean note was annexure 10 to the 'Commissioner's Confidence Submissions' and was described, in the 'Facts Sheet' of those submissions, as a "letter written by the accused" (presumably a reference to SHK). The English translation of the Korean note contained the following elements of what a Ms Nam, a Korean female, said to SHK: I consulted a lawyer at the company, I was told that I can have you charged for sexual assault ... 52Ms Nam gave a statement to Detective Senior Constable Little on 30 April 2011 in relation to having been sexually assaulted early on 24 April 2011 by SHK. Ms Nam did not give evidence in the proceedings. 53Later in the Korean note there appeared the following entries: Sooyeon told me that she would report me to the police unless I prepare 100M won ($100,000). She said to me "Do you know what will happen if we decide to report you to the police? You will get deported......." ... I contacted Heejin the following day which was the 28th April, 2011. She said "What money? I am going to report you to the police straightaway after work". However she did not go to the police. She told me that she was hurt and that she did not need money. However, when I telephoned her again today (29/04/2011) she was still asking for money. 54The reference to 29 April 2011 in the last excerpted paragraph seems inconsistent with the applicant's evidence that the Korean note was handed to him on 28 April 2011 during his shift and that he took the notes home after that shift. No issue arose, in this respect, in the proceedings and it may simply have been an error by SHK. 55Neither counsel referred to the content of the Korean note in their submissions. 56An issue arose in the proceedings as to when the applicant comprehended the allegations of criminality contained within the notes. 57Counsel for the applicant conceded that by Saturday 30 April that the applicant comprehended the criminal allegations contained in the notes because by then 'the penny drops" and 'he managed to get himself back into shape". 58However, this concession by counsel did not fully reflect, in my view, when the applicant acquired his knowledge and understanding of the content of the notes. 59The evidence discloses that the applicant knew of the content of the notes at least by sometime in the afternoon or evening of 29 April and, in particular, that there were expressed in the notes allegations of serious criminal offences. 60During the Burwood interview, the applicant admitted that he had taken the notes home and asked his wife to read the Korean note and translate it. 61The applicant answered questions about what happened when he took the Korean note home to Ms Green, in the following way: Q 71...what happens then A Ah, she [Ms Green] read through it [the Korean note] and basically, um, told me that, you know what the allegation was that, you know, he'd slept with both women, they found out that he's slept with both of them and that they wanted compensation otherwise they'd cause trouble for him. Q 72 O.K. in the letter did he say that the, in sleeping with the women that they were alleging that it was non- consensual? A Um, the main thing I got out of it from what I can recall is that, um they were pissed off that he slept with both of them, um, and that they wanted compensation if they didn't say give him compensation that they'd cause trouble for him and they might go to the police and say that, he, um, that it wasn't consensual 62In the response to the notice, the applicant stated: On the 29/04/2012 I woke in the afternoon and some time on that day Christine read to me the note and I told her to ring him [SHK] and tell him to report it to the police. 63In his affidavit sworn 19 July 2013, the applicant stated that: When I briefly met him [SHK] on 30 April [2012] and became aware of the extent of the matters relating to SHK and his dealings with the two alleged victims I immediately contacted Burwood Police, immediately told [SHK] to report to police and took steps to ensure that Burwood Police took steps to contact the alleged victims. 64In one component of his cross-examination, the applicant suggested his realisation of the contents of the notes came late Friday night or Saturday: A. And, as I said, when I first had dealings with him I didn't pursue the conversation properly, I didn't identify the issues properly and I thought it was some personal issue that he's come in to drop off, to pass on to my partner and it wasn't still later on that I realised exactly what was going on, probably on late Friday night, Saturday that I really started to have an idea of what was going on. But when he first attended the police station I did not. Q. Having discovered on the Friday night or Saturday what was going on, you still agreed to meet with him? A. As I said in my affidavit, the only reason that we agreed to meet with him was we were in the area at the time, seeing somebody else next door, and just to tell him face to face, "You're going to have to come into the police station tomorrow and I'll introduce you to the detectives". 65In another part of his evidence the applicant stated that acquisition of his knowledge was probably as late as Saturday 30 April: Q. Of course you had provided your partner with the two notes that you had received from SHK? A. That's correct. Q. The one in English? A. Yes. Q. By the time sir that you had done that you realised it was in English? A. To be honest with you I never really looked at the notes until probably Saturday after giving them to her on the Friday morning when I finished my night shift. 66The applicant also gave the following evidence: Q. And your partner had translated to you the notes in Korean? A. She told me what the context of the letter was. Basically the allegation was that he slept with two flat mates on separate occasions, they found out that he slept with both of them. They took offence to him sleeping with both of them and they wanted compensation. That is how it was complained to me. Q. You knew at that stage this was a serious matter? A. Say again? Q. You knew at that stage having had it translated? A. Yeah. Q. The general sense of the document, you knew it was a serious matter? A. That's why I got my partner [John], I can't deal with it, he is going to have to come back to the police station I'll introduce him to the detectives. Q. You waited to the evening to do anything about that? A. We told him on Saturday around the 1 o'clock phone call that he would have to come into the police station and I thought at that stage I had a shift on the Sunday and I was going to get him to come in on the Sunday. 67However, the applicant subsequently conceded he became aware of the content of the allegations in the Korean note on 29 April: Q. And then you say on the 30 April [2012] having briefly met him, you became aware of the terms of the extent of the matters relating to Kang and his dealings with the two alleged victims you were aware of that in fact on the 29 April, were you not? A. I was aware of the basic context of the allegation. Q. You were aware of it when your partner either translated for you or provided you what was set out? A. Yes. Q. In the Korean letter? A. Yes. 68Ultimately, the applicant conceded under cross-examination that he was aware, by 29 April, that serious criminal allegations had been made in the notes. His evidence was as follows: Q. You agree with me you were aware of the nature of the allegations on the 29 April 2011? A. Yeah. And: Q. "I was aware of the potential seriousness of the criminal offences being alleged"? A. Yeah, I've written that. Yes. Q. That was on 29 April 2011? A. Yes. Q. But, notwithstanding having that knowledge or that awareness, you still elected for your partner to have telephone discussions with him on 29 and 30 April? A. Yes, that's already on the record. Q. And you agreed to meet with him? A. Yes. Q. Knowing full well the potential seriousness of criminal offences being alleged? A. Yes. 69As to his capacity to act earlier than 30 April, the applicant stated in evidence: Q. Again sir nothing stopped you making a COPS entry on the 28 April in relation to this matter? A. That's correct. Q. And nothing stopped you making the notes and exhibits on the 28 April? A. That's correct. Q. And nothing stopped you going into the station on the 29 April with the notes and asking someone else to make as an exhibit? A. That's correct. Q. And nothing stopped you doing that on 30 April and asking someone else to take the notes? A. That's correct. 70There remains the question as to whether the applicant comprehended the English note when he read it on 28 April and whether he had, therefore, an appreciation on that day that allegations of a serious criminal nature were being made. 71Counsel for the applicant submitted, in opening, that: There is a handwritten note in English and then there is a much longer Korean note which is two pages long. Mr Vouden's version will be that the note in English did not really register, it did not compute for him; his mind was, unfortunately, on other things at the time and, as I said, he has admitted this the whole way through. 72On the final day of the hearing the following exchange took place between the Commission and counsel for the applicant: HIS HONOUR: Did the applicant become aware of the allegation of rape on 28 April? NAGLE: No, with respect, your Honour. What the applicant became aware of on 28 April is an allegation of blackmail. This is a different characterisation on 28 April. What happens on 28 April is that the applicant becomes aware, although on his version it didn't enter his consciousness, he became aware generally that there was some allegation and remember it is an allegation on the 28th being made by SHK and not the complainant, it is an allegation of a blackmail or shake down that these women had demanded $100,000 from SHK. That is serious enough, yes, but what he didn't have on 28 April was either complainant saying HK raped me; he had a demand for moneys as a result of potential allegations. I know that sounds odd but your Honour might recall HIS HONOUR: Are you seriously submitting that a police officer of Mr Vouden's experience when possessed of a note of that kind would not have allowed for either possibility being at play, either that there is a blackmail afoot or someone attempting to deal in some other way with allegations of rape that might be made against him. In other words, why wouldn't a professional police officer informed of that information allow for either possibility in proceeding with an investigation that would follow from it? NAGLE: The answer to your Honour's question is found in the applicant's state of mind that night. He said he was deeply distressed, that it didn't enter his consciousness, and the detail of the allegation was not in English. That is terribly important. HIS HONOUR: When you say the detail, you say the accompanying Korean note? ... NAGLE..He can't stand up and say it was just a plain error in circumstances where he was acutely distressed. It is all good and well for the Commissioner to say that wouldn't render you completely incapable of you doing your job, he wasn't rendered capable of doing his job, it just didn't enter his consciousness at that time. He didn't understand the gravity of the situation. His mind was elsewhere. We all make mistakes, with respect, your Honour. That is what this case was really about. He made a terrible error. What he should have done was terminate his shift and go home if he was that distressed, and he contemplated doing that, but unfortunately for Terry that's not the way that he operates all the time. 73In the response, under the heading 'Mitigation', the applicant referred to a failure by Inspector Thomas to interview Leading Senior Constable Voetrell as being procedurally unfair (as it would have revealed his "state of devastation and despair") and stated: If you had such a statement from a witness who was easily accessible you would not find it difficult to accept that the note written in English did not enter my consciousness. 74This was a reference to the applicant's state of mind on 28 April. (The failure to interview Leading Senior Constable Voetrell shall be discussed later in this decision, as it relates to substantive and procedural issues in turn.) 75However, in para 18 of the response, the applicant also admitted that he read the English note at the time that it was handed to him, and stated: I do not move away from the fact that I looked at both notes when he handed them to me. I did read the one that was in English but dismissed the words blackmail and rape as exaggeration since it was a second hand message and thought that it had been misinterpreted by the person who wrote the note in English. I do not recall reading the request for a Korean interpreter service. He said to me, give the notes to your partner and then tell me what to do. [SHK] did not ask me for an interpreter. I was angry when I saw him and frustrated by him coming to me at the station with a matter for my wife to sort for him. I say that the reason that was misguided but understandable in the circumstances and without a monovalent motive was that [SHK] represented yet another Korean who wanted assistance from my partner and I couldn't get away from the demands from that community. This frustration and disappointment coloured my judgment. I just wanted him out of the station taking up my time with what I assumed to be non-police business. If my judgment on that day had not been clouded by extreme disappointment and fatigue I would have read rape, blackmail, Korean interpreter, made a COPS entry, written up the exhibits, got an official interpreter and informed the detectives. 76The applicant had stated in his response that there was no evidence to suggest that either he or his partner knew SHK before 28 April 2011 and that when the applicant came into the station it was the first time he had met SHK. The evidence also showed that this was, according to the applicant, the first time someone had come to the station asking him to provide material to his wife: Q. How many other people come to the station asking for you to provide material to your partner and you do that? A. Well, I think you already know the answer to that; it hasn't happened before. 77Under cross-examination, the applicant gave the following evidence: Q. You took the documents to give to your partner, that was a favour to him? A. Well, at that stage I didn't realise the context in what was going on. Q. You understood at that stage that there were issues of blackmail? A. Well, as I said, I didn't really take much notice of it. Q. You understood, sir, that there were issues of blackmail? A. As I said, knowing the Korean community as I did that word sounded very strong for a Korean to be using. Q. That was the word that was used? A. That's correct. Q. It didn't ring any alarm bells in your mind? A. Not at that stage, no. 78The preceding passages from the applicant's response and evidence raise the related question as to whether the applicant's involvement with the Korean community played or contributed to his conduct between 28 and 30 April 2011. A brief departure into that issue is necessary to finally resolve the question of the applicant's comprehension of the English note. 79The applicant's involvement with the Korean community was confined to his interaction with it through his partner. This is reflected in the following answer given by the applicant during the course of his evidence: In answer to what I think you're trying to elaborate from that sentence; I didn't have any private interests or socialising with the Korean community as an individual. I did have contact with them through my partner but not as a private individual. I did not go and socialise with them privately, I did not as for arguments sake go and play golf with them privately. Any social after interactions that I had was with my partner and they were her friends, her socialising events and I was tagging along for example. 80However, the evidence does disclose that his involvement with the Korean community did have an impact upon his approach to the English note on 28 April. 81In the Burwood interview, the applicant stated: At the time I didn't, um, at the time I didn't really take it that seriously. Um, as I said, having, knowing what the Korean community's like, um, with the background and the way they do things I didn't really take it very seriously. 82During the Burwood interview the following question was asked of and answered by the applicant: Q. 84 O.K. So correct me if I'm wrong, if it wasn't a Korean that had presented this letter, if it was somebody form a different ethnic background would you have taken this sort of scenario more seriously? A. I probably would have taken it more seriously, um as I was saying, because of the cultural thing with the way Koreans are with, you know, with respect, if you ah, interfere with somebody's pride or whatever they, they want compensation things like that, it's very common between the Japanese and Korean cultures. Um, from a western culture it's not so common, it's quite different. Um, we don't have that sort of have that type of background in our culture. That's why sometimes, um, as I mentioned, sometimes people come to us for advice within the Korean community 'cause my partner's well respected in the Korean community. Um, she comes from an affluent family background in Korea. Many of her um, direct relatives are in um, politics, bank managers and high up in the military in South Korea. Um, as I said, sometimes I try and help and try and identify whether it's jus [sic] a cultural issue or whether it's something more severe, ah, more, sorry, more, um like, up I know, like a criminal background, sorry a criminal matter, if I identify or believe it's something that is more serious straightaway which I have done in the past and that's recorded, um, officially, um., I would take action straightaway.' 83Later, in answer to question 111 in the Burwood interview, the applicant admitted, as follows: [if] It was an Australian I wouldn't have taken the same steps And: I would have acted differently, yes. 84In the applicant's response, he revealed he was plainly annoyed by what he considered to be another instance of a Korean wanting assistance from his partner. That frustration, he stated, coloured his judgment. He considered the reference to 'rape' and 'blackmail' to be an "exaggeration" and possibly a result of a misinterpretation by the author of the English note. The applicant had earlier said in his response to the Commissioner's notice that the word 'blackmail' may have been more aptly described as a request for compensation and 'rape' more aptly described as the embarrassment of a Korean woman discovering a man had slept with her flatmate as well as herself. The note did not ring any alarm bells at that time. 85The applicant stated in his evidence in these proceedings that when he looked at the English note he "didn't really take much notice of it" and that the use by a Korean person of the word 'blackmail' was very strong language. 86The applicant's evidence as to his lack of comprehension of the English note on 28 April and his evidence as to the evaluation of that note in terms of his appreciation of the Korean community's approach to such matters are inherently inconsistent. 87The justification by the applicant of his conduct by reference to his understanding of Korean culture or custom (as it may be applied to the allegations in the English note) is consistent with him not only reading the English note, but comprehending the allegations within it, albeit in a way which coloured his perception of Korean customs. This explanation is more plausible than a police officer of the applicant's rank and experience showing no comprehension of or reaction whatsoever to a note reflecting allegations of serious criminal offences, unless his psychological and emotional condition was such that it rendered him incapable of such judgment - a conclusion, as I will later find, which is not available on the evidence, even if, as I will also find, the applicant was affected, to a degree, by various psychological and emotional states and stress on 28 April. 88There is no evidence as to what transpired between the applicant and Ms Green from the afternoon of 29 April (when the Korean note was discussed) and the afternoon of 30 April. In the response the applicant stated that, on 29 April, he asked Ms Green to call SHK and tell him to go to the police station. 89 In any event, some time prior to 1.35pm on 30 April there was a discussion between the applicant and Ms Green as to what communication should be had with SHK. 90There are two aspects to that evidence. The first concerns the applicant's evidence that he requested Ms Green to call SHK and tell him to go to the police station. The second concerned Ms Green's resistance to this course, insisting that they should find out why SHK had contacted the applicant. Ms Green's view prevailed and a meeting was arranged. 91In the applicant's notes the following extract appeared: Saturday 30/4/2011 I was out with my wife and the issue about the Korean guy came up. I thought I was working day shift on Sunday 1/5/2011. I told her to call him and tell him to come to the police station on Sunday and I would arrange for the detectives to take his report. This was at 1.34 pm. 92It is important to note here that in the response the applicant maintained it was his intention to make both the COPS entry and the notes exhibits when he returned to work on Sunday 1 May 2011. The applicant wrote: I did not make a COPS entry, nor make the two notes an exhibit but I intended to do both when I returned to work on 31/4/2012. (I note the applicant erroneously referred to the day after 30 April 2011 as 31 April 2011 instead of 1 May 2011.) 93He also stated that "late on 29/04/12 I learnt my roster had changed". Although this might suggest that the applicant knew, the day before he asked Ms Green to telephone SHK, that he was not, in fact, working on the following Sunday, no issue was made of this in the proceedings. 94These intentions were reflected in the following extract of evidence: We told him on the Saturday around the 1 o'clock phone call that he would have to come into the police station and I thought at that stage I had a shift on the Sunday and I was going to get him [SHK] to come in on the Sunday. 95However, the applicant ultimately gave evidence that he succumbed to the view that a meeting should occur with SHK. 96Initially, the applicant gave evidence under cross-examination, that it was SHK who insisted on the meeting: Q. Then in para H [7h of the response] you assert that in fact it was him that insisted upon the meeting, not your partner? A. Yeah. 97The applicant's later evidence, however, was, it was his partner who insisted upon the meeting. This evidence was as follows: Q Yes sir I was asking about your reasoning about what you did not about what you didn't do. So you have the notes translated or at least the sense of the note translated to you? A. Yes. Q. And you then decide that it is appropriate to meet with SHK? A. Well I didn't really think it was a very good idea but I sort of gave into the idea because of the proximity that we were there at the same time. Q. What was the purpose of meeting with him? A. Because my partner wanted to see him face to face and she wanted to know who it was that sent him to the police station. Q. All of that could have happened over the telephone? A. Well, he wouldn't tell her over the telephone so she wanted to press the issue with him face to face. Q. Did he want to meet with you or did your partner want to meet with him? A. It was more my partner and him wanted to meet. 98The applicant's evidence was that at the time he saw no harm in meeting with SHK because Ms Green would then advise SHK (in the Korean language) that SHK should attend the police station. He conceded that, with hindsight, this was unwise and stated that "at this stage I was starting to realise I should have done something sooner". 99During cross-examination, the applicant conceded that at the time he asked Ms Green to call SHK he had already formed the view that the matter should be reported to the police: Q. At that time you formed the view that the matter should have been reported to the police? A. Yeah. Q. That is prior to going to the meeting on 30 April? A. Yeah. I already gave that in evidence earlier. 100At 1.35pm, Ms Green telephoned SHK using the applicant's mobile phone. 101At 1.44pm on 30 April, SHK called the applicant's mobile phone number. During those telephone communications, the applicant and Ms Green arranged to meet with SHK later on the evening of 30 April 2011. 102The applicant's evidence was that he and his wife only agreed to meet with SHK because they "were in the area at that time, seeing someone else next door". 103The applicant and his wife dined in a Korean restaurant in Ryde at 6.30pm on Saturday 30 April 2011. 104It is appropriate to pause this chronology to mention something further regarding Ms Nam. 105Ms Nam's full name is Heejin Nam. As earlier noted, she was interviewed by Detective Senior Constable Little. It is known, from the Korean note, that Ms Nam is one of the persons connected to the allegations contained within the notes. 106A statement given by Ms Nam was annexed to the affidavit of Detective Senior Constable Little. It was admitted in that form without objection. Nevertheless, it is replete with hearsay. However, two elements of the statement may be comfortably relied upon because they are corroborated. These two elements are as follows: (1)Ms Nam's address, at the time, was 8 Rider Boulevard in Rhodes. This is corroborated by Detective Senior Constable Little and in the COPS printout of the event reference No E 45651255 dated 1 May 2011; and (2)A text message was sent from Ms Nam to SHK in the following terms: I have to give the Police your address and name. You send this by text to me. The Police will come to my place today, you should be prepared. 107There was no issue raised by either party as to the fact that the text message was sent to SHK. In any event, the fact and content of the text message was corroborated by para 14 of Detective Senior Constable Little's affidavit. 108At 6.53pm, SHK called Ms Nam. The parties to this call and the time it was made were not in dispute. 109At 7.07pm, SHK called Ms Green on her mobile phone and the conversation lasted for around two minutes. SHK wanted to meet with the applicant and his wife at Strathfield. 110Ms Green's evidence was that when she spoke with SHK on 30 April 2011 she communicated to SHK words to the following effect: "Meet me at Strathfield tennis courts". 111It might be noted at this juncture that there was no evidence that the applicant or Ms Green had a prior relationship with SHK. 112At 7.28pm, Detective Senior Constable Little received a call from her supervisor regarding a sexual assault matter. She was required to attend 8 Rider Boulevard, Rhodes in relation to the reported alleged sexual assault. 113At 7.30pm, SHK arrived at the Strathfield Recreation Club ('the Club') car park. 114The Club had CCTV cameras. The events which occurred at the Club from 7.30pm, as recounted in the agreed chronology, were largely drawn from footage taken by that technology. 115At 7.35pm, SHK called Ms Green. SHK and Ms Green then met in the beer garden of the Club at 7.38pm and were later joined by the applicant at 7.41pm. 116SHK told the applicant that the women making allegations against him had called the police. The applicant's notes stated that "About 7.40 pm we meet him [SHK], he said that the women had called the police". 117At 7.43pm, SHK called Ms Nam whilst he was sitting with the applicant and Ms Green at the Club. During that telephone call SHK handed the phone to Ms Green who then had a very short conversation with Ms Nam. At 7.45pm, Ms Green ended the telephone call. 118The applicant does not dispute that this telephone call was made. The applicant's evidence was that, because he does not understand the Korean language, he was unable to understand what SHK or Ms Green said during the phone call. However, the applicant does not dispute that he learnt, at least after the call had ended, that Ms Green had spoken with one of the victims of the alleged sexual assaults referred to in the notes. I note that the applicant had agreed to meet with SHK, in circumstances where the applicant knew of the contents of the notes and the related allegations. 119By the conclusion of the phone call between SHK, Ms Green and Ms Nam, the applicant knew that Ms Nam had either already reported the sexual assault or would imminently go to police to report the allegations against SHK. 120The applicant conceded that what had "changed" after the phone call was that the women mentioned in the notes were about to go to the police station or, in fact, may have gone to the police. The applicant gave evidence in this respect, as follows: Q. So what motivated you was the fact that the women involved were about to go to the police station or in fact may have just gone to the police? A. What was the last part sorry? Q. What motivated you to make the telephone call was the fact that the women either had just gone to the police station or were about to go to the police station with their complaint? A. That was the last factor of it, I had to make sure the information was provided to whoever was attending what I knew. (This is a reference to the telephone call made from the applicant to police on the evening of 30 April, to which I will return.) And, a few questions later: Q. What had you learned that you did not already know on the evening of the 30 April? A. That the women involved in the complaint maybe going to the police station that night. 121At 7.46pm, the applicant made a call on his mobile phone which ended at 7.47pm but there is no direct evidence as to whom the call was made. 122However, the applicant gave evidence that, after Ms Green had told him she had spoken with one of the women, he called Burwood police station and spoke with Sergeant Lee Patterson. 123At p 3 of the statement of reasons, the Commissioner set out Sergeant Patterson's unchallenged version of the conversation between himself and the applicant as follows: You [applicant]: Has there been a job broadcast for a sexual assault at Rhodes? Paterson: I'm not sure, why? You [applicant]: I'm having a drink in Burwood with a guy and two girls are trying to extort him out of $100,000 dollars by saying that they'll go to the Police and say that he raped them if he doesn't pay them. 124Sergeant Patterson was not called as a witness in the proceedings. 125It is not in dispute that the applicant was informed by Sergeant Patterson during that conversation that Detectives Little and Kay were responding to 'a job' regarding an alleged sexual assault at Rhodes. In the applicant's notes he stated that he asked Sergeant Patterson for Detective Senior Constable Little's mobile number so he could call her. (Sergeant Patterson, in fact, provided the applicant with the number.) 126I find that the applicant's subsequent telephone call to Detective Senior Constable Little was prompted by the information provided to him by SHK at 7.40pm, the conversation between Ms Green and Ms Nam to the effect that Ms Nam had reported, or was about to report the sexual assault, to the police and the confirmation of that eventuality by Sergeant Patterson that, at the very least, one of the allegations of a very serious crime, namely rape, had been reported to the police and that an investigation had been or was about to be commenced. 127Whilst the applicant had expressed an intention for SHK to be taken and introduced to the Detectives at Burwood police station prior to this point, what galvanised the applicant into taking the actual step of reporting the matter to a police officer on the evening of 30 April was the fact of his acquiring knowledge that a process had commenced by which the allegations would be placed in the hands of the police and investigated. The evidence is unclear as to whether the fact of Ms Green holding a discussion with one of the complainants (as distinct from the knowledge imparted to the applicant post that conversation) also prompted that course of action. 128At 7.48pm, Detective Senior Constable Little received a phone call on her personal mobile from the applicant's personal mobile. 129The applicant's opening remarks to Detective Senior Constable Little in that phone call and her response was set out in para 6 of her affidavit as follows: Vouden 'Are you attending a sexual assault at Rhodes?' Little 'Yes'. Detective Senior Constable Little then deposed that: I was quite surprised by Mr Vouden's question as I had only just received the call regarding the job. I did not know how he would have known about it already especially when he was not on duty at the time. 130Detective Senior Constable Little's affidavit deposed that the following conversation then ensued between herself and the applicant: Vouden "I want to give you a heads up about the POI [person of interest] in the matter you're attending, [SHK]. On Thursday [SHK] attended the police station when I was at the start of my shift, around 7 pm. He gave me a letter that was in Korean and said that it had something to do with him being threatened by the victims in Rhodes to pay them $100,000 otherwise they would go to the police and say he raped them. Little "What did you do with the letter?" Vouden: "My partner is Korean so I took it home for her to interpret it." Little: "Did you create a COPS event?" Vouden: "No not yet, I was going to do that on my next shift." 131Detective Senior Constable Little then requested details of SHK's date of birth and address. Whilst remaining on the phone with Detective Senior Constable Little, the applicant asked SHK and Ms Green for that information which he obtained and relayed to Detective Senior Constable Little during the phone call. 132The conversation continued, as follows: Little: "Where are you Terry?" Vouden: "Im at Strathfield Bowling Club, near the tennis courts." Little: "Are you with [SHK]?" Vouden: "Yes he's here too. He's told me that he slept with each of the flatmates at different times and when they both found out they've decided to ask him for money. I know you gotta do what you gotta do but I'm just giving you a heads up." The call lasted for 11 minutes. 133At around 8pm, the applicant telephoned Detective Senior Constable Little for a second time and told her he had just received more information from SHK, namely, that SHK had text messages on his phone containing the complainant's account details. 134The applicant, Ms Green and SHK left the Club carpark at 8.09pm. 135After the two phone calls between Detective Senior Constable Little and the applicant, Detective Senior Constable Little visited Duty Officer Inspector Nichols and Detective Senior Constable Kay to inform them of her exchange with the applicant. Inspector Nichols instructed Detective Senior Constables Little and Kay to attend the 'job' at Rhodes and stated that he would attend to the matters raised in the applicant's phone calls to Detective Senior Constable Little. 136Whilst Detective Senior Constables Little and Kay were making their way to 8 Rider Boulevard, Rhodes, they received a call from Burwood police station stating that the complainants had actually arrived at the station. Detective Senior Constables Little and Kay returned to the station. 137At approximately 9.00pm, after having returned to the station, Detective Senior Constable Little met with three Korean women in relation to the alleged sexual assault matter which had been the subject of the call to the station at 7.28pm. Ms Nam identified herself as one of the victims of the alleged sexual assaults by SHK. With the assistance of a Korean interpreter, Detective Senior Constable Little took, inter alia, Ms Nam's statement at Burwood police station. 138At 10.40pm, the applicant attended Burwood police station after having received a call from Inspector Nichols. The applicant handed Detective Senior Constable Little the Korean note. The applicant then returned to his car, retrieved the English note and presented it to Detective Senior Constable Little. 139SHK was subsequently arrested and charged with two counts of sexual assault. The charges against SHK were ultimately not proceeded with. On 2 May 2011, Detective Inspector Ian Pryde (who had been Acting Burwood Local Area Commander) ('Inspector Pryde') allocated the investigation as to whether the allegations against the applicant were potentially allegations of a criminal nature to Inspector Thomas. On 16 September 2011, pursuant to advice from the Legal Services Division of the Police Prosecutions Command, that investigation concluded, inter alia, that there was no prima facie case for a criminal offence to be made out against the applicant. In or about the second week of October 2011, Inspector Thomas was requested by Superintendent Rodney Smith, to continue the investigation to determine whether there were departmental issues to be dealt with. The Applicant's Conduct re the SHK Allegations 140The applicant admitted misconduct as specified in Allegations 1 and 2. 141The evidence overwhelmingly supported the conclusion that the applicant was provided information concerning serious criminal offences via the notes on 28 April 2011 but failed to record the same on COPS. Further, the applicant failed to record the documents as exhibits and instead took the notes home with him until the evening of 30 April 2011. 142The applicant raised, in this respect, his psychological and emotional state and his knowledge of and involvement with Korean culture as mitigating factors (to which I will return shortly). 143As to Allegation 3, the applicant deposed in his affidavit (sworn 19 July 2013) the following: d. In relation to Allegation 3 and the Commissioner's Statement of Reasons I deny the following: i. I did not form an improper association with [SHK]. ii. I deny that I consciously failed or refused to contact a Korean interpreter: At this time I was not aware that [SHK] wished to see an interpreter. iii. I deny using Ms Green as an interpreter. Ms Green did communicate with [SHK] however I did not ask Ms Green to elicit any information from [SHK] nor did she act as an intermediary between myself and [SHK] save and except for telling [SHK] to go to the police station. iv. I deny using Ms Green to conduct preliminary enquiries. Once I became aware of the nature of the allegations I contacted SC Little to make full disclosure of all that I was aware of, and, I took steps to tell the alleged victims to attend the police station also to make a formal report of the allegations. v. I deny acting in a manner contrary to my duties as a police officer in the period 28 April to 30 April 2012. e. I accept that I did not take appropriate action at the time [SHK] attended Burwood Police Station on 28 April 2012. (The dates described as '2012' in the above paragraph were plainly intended to represent those same dates in 2011.) 144It should also be noted, in this respect, that the chapter on 'Conduct' in the 'NSW Police Force Handbook' relevantly stated: You are responsible for identifying and avoiding conflicts of interest that relate to your employment within the NSW Police Force. These conflicts may be actual, perceived or potential. Improper associations An improper association is a personal association that is deemed to be a conflict of interest. As such, it must be reported and managed at the first opportunity. It is the responsibility of the officer with the improper association to report the matter. An improper association is deemed to exist when a NSW Police Force employee is associated with a person...involved (or perceived to be involved) in activities incompatible with upholding the law. These associations create a conflict of interest (actual or perceived) between the employee's responsibilities to the NSW Police Force and their private interests. 145By final submissions, however, the applicant, through his counsel, had accepted all the elements within Allegation 3, save for that aspect concerning improper association and the Commissioner's findings regarding integrity. By dint of the approach by counsel to the Commissioner's reasons, this effectively brought with it an acceptance of the Commissioner's reasons save for these disputed areas. 146The applicant's dispute as to improper association was described in the following terms in the written submissions filed on his behalf: The applicant does take issue with the Commissioner's determination that the relationship between the applicant and SHK was an improper association. The applicant asks that the Commission find that if there was an improper association then such association falls on the lowest end of the spectrum and only arises because the applicant failed to follow proper procedure due to SHK being Korean. 147In oral submissions, counsel for the applicant contended: Allegation 3 is all accepted and, look, I should say that in relation to forming an improper association I draw your Honour's attention to exhibit 4.1, the manner in which the applicant challenges that. The applicant's evidence had been that he didn't form an improper association, but the applicant's case as presented to the Commission is that if it is an improper association it would fall at the lowest level, and it only arises because SHK was correct and the association was one that had over it a cultural overlay, as it were, that then caused the applicant to do something different to what he normally would have done. 148Exhibit 4.1 is a reference to part of the statement of issues: The Allegations relating to [SHK] 1. The Applicant's position is that the improper association with Mr Kang falls at the lowest end of seriousness in relation to the range of improper associations which could be formed. 149The respondent submitted that the contention in the applicant's written submissions that he failed to follow procedure because SHK was Korean was "concerning". 150The respondent also noted that the first sentence of the applicant's written submissions as to improper association was contrary to the applicant's admission under cross-examination that he did have an improper association with SHK. 151Whilst the position of the applicant as to his forming an improper association varied in the evidence he gave and the case presented by counsel on his behalf, he ultimately conceded in evidence that he had formed an improper association with SHK. However, he maintained that the association fell at the lowest end of the spectrum. 152There can be no doubt that the applicant's association with SHK was, on the evidence before the Commission, improper. From the moment the applicant was aware that SHK was a person of interest in an investigation of a serious criminal offence, any engagement with SHK should necessarily have been confined to the discharging of his duties as a police officer. Those duties entailed the making of a record or report (which was not done until 30 April) and, where appropriate, in terms of the authority conferred on him within the police Command, the investigation of the alleged criminal activity, save if there was a conflict of interest. In the absence of these steps and, when acting in an off duty capacity, the engagement and meeting with SHK, in a quasi-social environment at a private location, in full knowledge of the allegations, plainly constituted an improper association, conforming with the description of such associations in the 'NSW Police Force Handbook'. In any event, the association with SHK was contrary to the performance of the applicant's duties as a police officer (by avoiding conflicts of interest and private associations with persons perceived as being involved in criminal activity). The reaching of this conclusion does not require an additional finding that the applicant met SHK for an improper purpose although any act representing some element of favouritism or assistance must have that implication. It follows that the improper association commenced when the applicant acquiesced in or permitted Ms Green to communicate with SHK to establish the meeting. The misconduct associated with this improper association was aggravated by the fact that the applicant involved Ms Green in the matter, and knowingly permitted her to speak with SHK. 153I will return to the assessment of the seriousness of the applicant's conduct after the consideration of exculpatory factors. The Applicant's Integrity 154Mr Nagle's opening remarks remained, throughout the hearing, a good encapsulation of the applicant's written and oral submissions as to his integrity. They were : What you have here, your Honour, is conduct which is out of character but doesn't fit terribly comfortably with the rest of his police work. But he admits that he did the wrong thing and he made a mistake. This is not the sort of matter which goes, for example, to the heart of the policing relationship between an officer and, for example, a Commissioner, visavis integrity, because, with respect, there is no mal fides; there is no real improper purpose, it's (these are my words) so much bone headed. 155Further, in his closing remarks Mr Nagle submitted: I submit at the end of the day will be that this is not a matter where the applicant's integrity should be a matter upon which he was removed and the findings in relation to integrity should fall away. It is a matter of conduct, and that ties in with the harshness and whether it is an innocent error or a more gross breach than that 156On 28 April he did not, it was submitted, understand the gravity of the situation and he was not thinking clearly because he was in a depressed or distressed state. Further, the applicant contended that he assisted in the course of justice (even though it took him 48 hours) by providing, on 30 April, information as to the allegations in the notes through his conversation with Detective Senior Constable Little and the provision to her of the notes. He revealed, it was submitted, all he knew to Detective Senior Constable Little when he realised the gravity of the situation and informed her of SHK's whereabouts. It could not be said the applicant perverted the course of justice or acted in a manner which was deceitful. He did not attempt to hide his conduct on 30 April. The applicant's conduct should not have attached to it any taint of serious wrongdoing but, rather, an error of judgment. 157Mr Nagle submitted orally that the Legal Advice went to the whole question of the applicant's integrity as follows: ... And a finding that someone assisted in the course of justice really does strike against the notion that they lack integrity. 158Mr Britt made the following oral submissions in relation to the allegations (as part of his overall summation of the applicant's behaviour): ... What is put by the applicant is he made a mistake. With respect, if one were to accept the characterisation in that fashion, he made a series of mistakes. Although we accept allegations 1 to 3 are a course of conduct, it's made up of a number of decisions between 28 April and 30 April. ... My friend admits that the applicant stuffed up, to use his words this morning, but what is of concern to the Commissioner, assuming the closing submission is made on instructions, is how the applicant then characterizes those errors, or stuffing up. He characterises the error that commenced on 28 April as the error was "he didn't go home". With respect, that's not the error. The error is his conduct on the 28th, 29th and 30th of April. 159The respondent submitted that, if the applicant had acted appropriately on 29 April 2011, or earlier than 30 April 2011, his conduct would have assisted the "course of justice" as well as complying with his obligations as a police officer. The applicant had the opportunity to act at these times but elected not to. The applicant only decided to disclose the matters to Detective Senior Constable Little after: (a)the inappropriate meeting with SHK; (b)telephone calls between SHK and the applicant's partner; (c)the telephone call between SHK and the applicant's partner with the woman involved; and (d)he became aware that the woman was reporting or had made a report to the police. 160This action, stated the respondent, had elements of self-interest, given the possibility his or, at the very least, his partner's involvement would have become known. 161It was submitted that, whilst the applicant may have assisted police from 7.47pm on 30 April, this was simply "the time [the applicant] decided to do his job", a job that he had failed to do for the preceding 48 hours. 162It will be observed that the applicant's submission on integrity is directed to both the characterisation and assessment of the gravity of his conduct and particularly exculpatory factors. It is appropriate to make an assessment about the matter in the course of evaluating the overall seriousness of his conduct and after consideration of mitigating factors. Mitigatory Factors as to the SHK Allegations 163The applicant relied primarily upon his psychological and emotional state, variously described, to explain his misconduct over the period of 28 to 30 April. He also raised issues as to his connection to the Korean community and his comprehension of the English note. Those latter two matters have been discussed earlier and will be finally considered under this heading only in relation to the principal explanation raised by the applicant in relation to the SHK allegations, namely, his conduct was being, in part, explicable or mitigated by his psychological or emotional state. 164It may be noted at this juncture that the Commissioner did not accept that the news the applicant received prior to the commencement of his shift (about the Byron Bay position) affected the applicant "to the extent that it caused you to act in the manner in which you did". The Commissioner noted that he took into account the comments made by Dr Li, but that, in his view, the applicant's failure to comply with matters of "fundamental importance" could not be justified. Impact of the Applicant's Psychological and Emotional State Medically Diagnosed Depression 165In his opening, Mr Nagle submitted: Your Honour will hear immediately on or around the time of April through to June 2011 Mr Vouden was distressed and stressed. Your Honour will not hear medical evidence of that; he was not seeing a psychologist at the time, but he has later been prescribed various antidepressants later on in 2012. But your Honour will hear evidence from officers who worked with him around the time, that he was not coping terribly well with the situation that was going on and that does include after this first incident occurs and then when it turned into on investigation. 166The applicant's written submissions stated that he was suffering from depression and that this affected his conduct. Specifically, Mr Nagle stated as follows: The Court should accept that the applicant was suffering from depression and anxiety and was acutely distressed at the time he committed the error on 28 April [2013]. 167In written submissions the respondent summarised its evidence with respect to the applicant's depression, as follows (at par 47): ... there is no medical evidence at all that as at 28 April 2011 the applicant was suffering depression and anxiety. Further, there is no evidence that on 29 and 30 April 2011 the applicant was even distressed (let alone suffering depression and anxiety). The reason the applicant was upset was that he was denied a transfer to Byron Bay. A transfer he knew would be hard to get (T90.34) and so hard in fact that he was looking for a house in Sydney at that time rather than at Byron Bay (T90.24-35). If the applicant had acted appropriately on 29 April 2011 or earlier on 30 April 2011 his conduct would have assisted the "course of justice" as well as complying with his obligations as a police officer. The applicant had the opportunity to act at these times but elected not to (T80.14-46). ... 168In response to an invitation from Inspector Thomas to say anything further in relation to the SHK matter during the Burwood interview, the applicant stated the following: The other thing, um, in hindsight, sometimes if I'm suffering with depression which I do get since things that have happened to me in the past, um I probably should have terminated my shift instead of trying to push through it, um, because there are times where I do have trouble thinking clearly when I'm suffering depression badly. Um, on this particular night I was in a very bad state to put it bluntly. 169The applicant also referred, during the course of the Burwood interview, to the fact that he had tried taking some medication for his depression but that he had not maintained it due to experiencing too many adverse side effects. He claimed that this was one of the reasons he was "desperate" to get out of the city and relocate to the northern country area. 170The Burwood interview was held on 2 November 2011, seven months after the SHK incident, six months after the applicant had been placed on the first of two Interim Management Plans ('the First IMP'), and four months after the two COPS incidences had occurred which became the subject of Allegations 4 to 7. 171In the response, the applicant made no mention of depression in relation to his conduct on 28 April 2011. However, later in his response in addressing mitigation factors relevant to his conduct as to Allegations 4, 5, 6 and 7, he did say that in June 2011 he was suffering from depression. The applicant also stated that he was very depressed in 2003 and took anti-depressants for one and a half months at "around that time". 172The applicant had, in an earlier part of the response, referred to some limited counselling previously made available to him through his employer during 2005 to 2008. In para 1(a) of his response to the Commissioner's notice, the applicant identified the counselling as 'EAP' counselling. The applicant saw an EAP counsellor six times in the period 2005 to 2008. The need for that counselling arose out of a charge in 2003 of which the applicant was ultimately acquitted. 173Further, the applicant wrote, in his response, that he was the subject of another malicious prosecution in 2008 which added further stress to his life. 174No medical evidence was tendered as to any of these matters. 175The applicant gave no evidence regarding depression in his affidavits, save for that already referred to above in the applicant's response. 176However, during cross-examination, the applicant gave the following evidence as to depression: Q. Sir, in 2011, principally at the end of April, May, June and July you did not actually provide any medical evidence to support your assertion that you were suffering from depression and/or anxiety? A. From what date, sorry, could you just clarify that? Q. In April, May, June and July 2011? A. There was doctors' reports attached to the report. Q. Don't those doctors' reports relate to 2012? A. A lot of them relate to 2012. Unfortunately, I'm guilty, like a lot of people are when they're suffering from depression and things like that, of not coming forward and admitting it and they try and conceal it and function and push on and don't want to seek help, until they get to the point where they can't deal with it any more and basically, as Sergeant Muir put it, they breakdown. Unfortunately, I was aware that I had problems but I didn't seek help or assistance when I should have; I tried to keep it to myself and keep functioning. Q. Again, sir, at this time you have not formally been diagnosed as suffering from depression? A. Well, I haven't been formally. ... Q. In April 2011 you weren't diagnosed as suffering from depression? A. Not formally, no. Prior to that I had been on a couple of occasions to a counsellor in Hurstville through the employees' assistance programme. Q. You are saying that you made people aware in June 2011 through medical evidence that you were suffering depression? A. Yes. Q. Where do I find that medical certificate sir? A. I am talking about in regards to my conversations with senior management at the Burwood LAC because of what happened on, not on the 28 April, and the conversations and that they were aware I was having issues then. If they weren't aware of it beforehand they were certainly aware of it after the initial complaint. 177In another part of his evidence the following exchange with counsel for the respondent occurred: Q. You say .......at least in relation to the first complaint, that you made words to the effect of full admissions at the first available time? A. That's correct. Q. That is not correct, is it, sir? A. If you take it in context it is because the following day I worked a night shift and anybody who's worked long night shifts knows what fatigue is like. Q. You could have, sir, said something on 28 April but chose not to? A. As I said, if anyone who's suffered from depression has hit rock bottom; they know that you don't bounce back in five minutes; it can take weeks or months before people start to function correctly. And that's why I was disappointed I put that comment in because anybody who's had any dealings with anybody who's suffered from depression or anxiety, you don't have a mental break and then five minutes later you're functioning a hundred per cent and everything's to scale. Sometimes it can take days, weeks, months before you start to function properly again and that's why I still wasn't functioning properly. 178The only medical evidence the applicant adduced that he may have been clinically depressed was contained in a letter from Dr Jiang Li dated 26 March 2012, which was attached to the applicant's affidavit sworn 19 July 2013 (Ex 7). 179At the outset of his report, Dr Li stated: 1. I first saw him for his current work related mental illness was on 21/12/20111 [sic] and than [sic] 4/2/2012 and he ahs [sic] been reported about anxiety/depression including chest tightness and short [sic] of breath and I have ruled out physical causes for his symptoms including cardiac causes by referral him [sic] to Cardiologist and rule out cardiac causes for his chest tightness and short [sic] of breath and has [sic] been given [sic] him different antidepressants for part of hsi [sic] management. I have been seeing him for thses [sic] conditions on 7/1/2012, until today(26/3/20120 [sic] and I will attach all the clinical notes with this report. 180Dr Li's diagnosis was: Anxiety/Depression from Workrelated [sic] stress. 181The prognosis for the applicant's condition was described as: 3. His prognosis is uncertain due to he has [sic] stress from his employment which including [sic] prolonged investigations for different issues and we are not sure how long it will take to finish and what will be the final results of these investigations so his prognosis is depend [sic] on all these. 182As to anxiety/depression during 2011, the doctor proffered the following opinion: As noted as above he has been some stress [sic] for long term from different stressors and would have some anxiety/depression on and off during 2011 until now and how much affect his proper professional judgement on the night of 28 May 2011 is not clear. (I have assumed the reference to 28 May 2011 was an error and that the doctor intended to refer to 28 April 2011.) 183Dr Li referred to the applicant's earlier medical history and attached clinical notes as follows: From my clinical notes that patint [sic] has stress by his work situation prior to 13 March 2011 due to some investigations which alos [sic] has some relation with his work (Clinical note attached). The doctor concluded: 6. It is my opinion that the length of time the investigation has certain stress on my patinet [sic] mental health and may [sic] even physical health as evidenced from the clinical notes. 184The only clinical note attached to the report which related to the period prior to April 2011 was a 'progress note' from another medical practitioner, Doctor Ong, dated 27 April 2010. The note was as follows: seein [sic] a councillor through work for depression and anxiety, the charges were thrown but his partner was drinking to cope with the situation, and the realtionship [sic] broke up one and half years ago, in Nov. [sic] 2009 receiveda [sic] file frm [sic] the police Dept. that is related to the ol [sic[ charge and said they are taking it further, and his depresionand [sic] anxiety returned. His level of migraine has increased in frequency, has trouble with motivation with life and work, sometimeis [sic] stressful situation at work he gets anxiety symptoms of chets stiff [sic] and Dyspnea and sometime his articulation of words get jumble up [sic]. . Was told by his councillor [sic] to see a doctor for hypnotics he has symptoms of depression and anxiety. 185There were no medical records produced in relation to any follow up visits to Dr Ong by the applicant. There were no other clinical notes annexed to the applicant's affidavit, except for those of Dr Li of which the first (after April 2011) was dated 21 December 2011. I note Dr Li's record, in this respect, under the headings 'History' and 'Psych', as follows: History: Pt has chest tightness and SOB and sweaty when he stressed and eh [sic] has mood swings and has lots stress [sic] from work/family and his employer has ongoing investigations for him and his partner has mood swings to affect his mood and ph of anxiety/depression. Psych: Poor sleep. Early morning wakening. Depressed mood. Panic attacks. No suicidal thoughts. 186Under the heading 'Reason for contact', Dr Li stated: Reason for contact: Anxiety/Depression but need to rule out other significant causes including Thyroids and cardiac causes. Actions: After discussion we decide to start to have Lexapro 5mg/day and he may need to have counselling and also need to have blood tests and referral to cardiologist to rule out other significant [sic] 187Dr Li was not called to give evidence in the proceedings. 188The applicant also adduced evidence from Sergeant Trudy Crowther, who was responsible for supervising him from May 2011, as to his depressed state. She gave evidence that, in her view, the applicant was depressed. Sergeant Crowther also provided a written reference for the applicant dated 26 November 2012 which referred to a time period from 12 May 2011 when the applicant was placed on traffic duties under Sergeant Crowther's supervision. Sergeant Crowther stated: The Suspension and lengthy time period of the investigation was at times detrimental to his health causing Migraines Headaches. Despite the stress and anxiety he was suffering....he still maintained a positive attitude toward his Traffic duties. 189Under cross-examination it was clear that Sergeant Crowther's impression of the applicant's psychological state was limited to observations in 2012 and, therefore, did not relate to the time period during which the SHK allegations emerged. I set out the relevant extracts of transcript, as follows: Q You proffered the view that Terry was depressed? A. Yes. Q. Did Terry ever provide medical certificates during 2011 that in fact he was suffering from depression? A. I can't remember. Q. Of which you are aware? A. I remember doctor's certificates but I don't know whether it was specifically for depression. Q. And you yourself sergeant have no medical qualifications? A. Personal experience, no I don't have any medical qualifications. Q. You referred to the applicant suffered from migraine? A. Yes. Q. And on two occasions you suggested that he go home when suffering from such migraine? A. Hm. Q. Can you tell the Commission when that was? A. No I couldn't tell you exactly when. Q. Can you tell us the year? A. It was in 2012 when we were at the new station, I remember that bit but I can't tell you exactly when. 190In summary, the medical evidence was to the following effect: (1)There was a diagnosis of depression by a treating general practitioner on 26 March 2012, some eight months after the SHK incident; (2)That diagnosis occurred after the incidents giving rise to the COPS allegations, the instigation of an internal management plan and whilst the investigation was ongoing; (3)The only earlier medical assessment of depression/anxiety is that of Dr Ong 12 months prior to the incidents leading to the SHK allegations, where the applicant was prescribed anti-depressants. There is no evidence of any follow up medical treatment after April 2010 until some 20 months later when the applicant attended upon Dr Li in December 2011; and (4)There was a notation by Dr Li that the applicant had suffered stressors over time and a retrospective assessment that the applicant would have suffered some "anxiety/depression on and off" during an undefined period in 2011. The doctor subsequently observed that it was unclear "how much effect" that condition had on the applicant's professional judgment on the night of 28 April. 191I conclude that there is no medical evidence that the applicant's behaviour on 28 April 2011 (or for that matter 29 or 30 April) was attributable to, or may have been explained by, the existence of the medical conditions of depression or anxiety, although he did suffer depression or anxiety during the year 2011. Indeed, there is an express disclaimer in Dr Li's report as to that question. There is no evidence as to the nature and severity of that condition or its effect on the applicant on 28 April. 192Taken at its highest, the applicant's evidence that he was "depressed" may be accepted as a statement of his feelings during the period 28 to 30 April 2011 or that he has self-diagnosed his psychological state. This cannot constitute a medical explanation for his behaviour giving rise to the SHK allegations. 193Nonetheless, it may be accepted, as I will now discuss, that the applicant's conduct was affected to some degree by his general feelings of depression (in the manner I have described above), distress, stress as well as other emotional states on 28 April. Different considerations are relevant to the remainder of 29 and 30 April, to which I will later turn. Other Physical, Mental and Emotional States - 28 April 2011 194The applicant's evidence was that his judgment was affected during 28 to 30 April by his psychological, physical and or emotional state to such an extent as may explain his conduct, or act in mitigation of his misbehaviour. Apart from his general evidence of "depression", there were three particular factors he brought to account in this respect: (1)Sleep deprivation; (2)His distress over missing out on the position at Byron Bay; and (3)His feelings were then compounded by feelings of frustration and anger because of his perception that the transfer application may have been affected by his relationship with a Korean person and that another member of the Korean community had sought assistance. 195As to 28 April, the applicant's psychological or emotional explanation for his conduct in relation to SHK is found, in its embryonic form, in the notes made by him on or around 5 or 6 May 2011. Those notes referred to his emotional state at the time SHK attended the police station on 28 April 2011. The notes state that, shortly before the start of his shift on 28 April 2011, he was very upset at finding out he had been unsuccessful with a transfer application to Byron Bay (to the extent that he felt like terminating his shift). The applicant's notes also add that "My first response was due to not thinking with a clear head and because of my mental state at the time." 196In the response, the applicant variously described his emotional and psychological state on 28 April 2011 as devastation and despair (over missing out on the Byron Bay transfer), rage, upset, anger, frustration, disappointment, fatigue and exhaustion. 197The applicant clarified his description of his 'mental state' by contending that his conduct on 28 April 2011 (which he described as an "oversight"), was, in summary, borne out of the following: (a)Emotional distress on the day (because he had missed out on the Byron Bay transfer); (b)Frustration at his treatment by Command due to his involvement with a Korean person. (This refers to the applicant's relationship with Ms Green and an occasion in May 2010 when he was reprimanded by his supervisors at Burwood in relation to an incident that took place at Ms Green's karaoke bar business.); (c)Fatigue resulting from the block of shifts he had just completed; and (d)Stupidity explained by emotional distress and fatigue. 198I shall consider each factor in turn. 199In the response attached to his affidavit sworn 19 July 2013, the applicant stated that his actions (which were not motivated by corrupt reasons) were as follows (at para 8): ... merely an oversight borne of emotional distress on the day from the news I had received and frustration at my treatment by command due to my involvement with a Korean person. 200It may be accepted that, on the evening of 28 April the applicant was feeling distressed that he had been unsuccessful in an application to transfer to Byron Bay. There was no contradictory evidence and it correlates with the uncontested evidence that he did receive such a communication earlier that evening. 201However, the applicant's evidence needs to be put in perspective: (a)The applicant's state of distress was only in relation to his request for a job transfer being declined. Whilst this refusal was no doubt disappointing from his personal perspective, there was nothing in the evidence to suggest that the transfer had any other implications for his career in the Police Force. The applicant agreed, under cross-examination, that he and his wife had been looking to purchase properties in Sydney as he knew that it "was always hard to get a transfer to a desirable location"; (b)It was the applicant's own emotional reaction to the situation which caused him to experience a stress related reaction. The emotion experienced was not only distress but also anger; (c)The evidence of this emotional state is only relevant to 28 April 2011; and (d)Another component of the applicant's distress was his perception of injustice at his treatment by Command concerning his relationship with Ms Green and that this affected the manner in which his transfer application was handled by his supervisors. This seems to have been a long standing grievance but it may have contributed to his sense of frustration on 28 April. 202As to sleep deprivation and fatigue, the applicant stated in his response that his "delay in responding was extenuated by fatigue from the block of shifts I had just completed". He stated: I am over 50 years old and it always takes me at least 24 hours to function properly after 4 days of 12 hour shifts. Once my emotions of anger and despair in relation to not getting the Byron Bay position that I thought I deserved to win and had slept off the exhaustion of my 4 day roster I was aware of the potential seriousness of criminal offences being alleged. 203The applicant also gave evidence in his affidavit sworn 19 July 2013 that his judgment on 28 April 2011 was affected by sleep deprivation: The night of 28 April 2012 was the last of four 12 hour shifts which I had been rostered to work. In the 3 days prior to 28 April 2012 [sic] I usually slept between 2 and 4 hours during the day. By 28 June 2012 I became sleep deprived and I believe this affected my judgment and cognitive skills on the 28th of April 2012. (It was plain that the content of the applicant's comments were in relation to 28 April 2011 and the three days leading up to it.) 204It may be accepted that the applicant was sleep deprived on the day of his shift on 28 April 2011. However, shift work is an ordinary part of a police officer's functions and if the applicant was not fit for work he had a responsibility not to report to work. The applicant chose to attend work and (on his own evidence) made the inappropriate decision not to terminate his shift. 205The applicant presented no evidence from any officer working with him during his shift on 28 April 2011 that touched on observations or concerns about his psychological or emotional state during that shift. Nor was there any evidence adduced of a similar nature in relation to any of the preceding four night shifts. Mental, Physical and Emotional States 29 and 30 April 2011 206Before turning to procedural issues raised by the applicant, I will deal with the evidence as to his mental state on 29 to 30 April. 207On the final day of the hearing, Mr Nagle submitted: Your Honour has evidence on the 29th having been sleepdeprived, finally got some sleep, but, on the applicant's own evidence, it wasn't until the 30th that he'd sort of come good after four days of shift and he says at the time he was depressed and after a couple of nights of sleep on the 30th, that's when the wheels start to move, as it were, because he managed to get himself back into shape 208The respondent submitted the following as to the applicant's psychological and emotional states with respect to the SHK allegations: 33. (a) Just prior to starting his shift on 28 April 2011 the applicant was advised by a colleague that he had missed out on a position he had applied for at Byron Bay and as a result he was devastated, angry and frustrated (this does not explain why he acted in the manner he did and why it took until the evening of 30 April 2011 to report the incident); (b) That at the time the applicant was overwhelmed by emotions (but again this does not explain his subsequent behaviour on 29/30 April 2011). 209The respondent argued that "[i]t cannot be accepted that such distress would have caused the applicant to act in the manner he did for approximately 48 hours". 210I accept the respondent's submissions in this respect. 211On the evidence in these proceedings, the factors affecting the applicant on 28 April (as I have noted, variously described by the applicant as depression, anxiety, rage, anger, despair, frustration, disappointment and fatigue), which are the subject of earlier findings, did not impede the applicant from taking appropriate action in relation to the SHK incident for a continuous period of 48 hours. I will return to the extent of the impediment to the applicant's judgment on 28 April in my final conclusions as to mitigation. However, by the afternoon of 29 April, these factors had disappeared or dissipated to such an extent that the applicant fully understood and appreciated the seriousness of the criminal allegations involved in this matter. For reasons earlier provided in this decision, I do not accept the submission made by Mr Nagle that the applicant only became cognisant of these matters on 30 April. The steps he subsequently took and permitted to be taken represented a serious breach of his duty as a police officer. Evidentiary and Procedural Fairness Issues 212The applicant contended that Leading Senior Constable Voetrell could have provided evidence in regard to his psychological state had he been interviewed by Inspector Thomas during the investigation. This sounded in procedural fairness contentions. The respondent raised a related issue concerning Leading Senior Constable Voetrell. I will deal with both matters below. 213It was submitted by the respondent that the Commission should draw a Jones v Dunkel [1959] HCA 8; (1950) 101 CLR 298 inference as to the applicant's failure to call Leading Senior Constable Voetrell. The applicant could have obtained, it was submitted, such evidence for the purpose of this review (either through a statement or by calling Leading Senior Constable Voetrell to provide evidence in the proceedings). 214This contention relied upon the common law evidentiary rule in Jones v Dunkel, which was summarised by the Full Bench in Inspector James v Ryan (No 3) [2010] NSWIRComm 127 at [152] as follows: Jones v Dunkel is authority for the proposition that an inference against a party's case that is available on the evidence may be more confidently drawn if that party fails to call a witness who is presumably able to put a true complexion on the evidence, and that party gives no explanation for the witness's absence: Kitto J at 308. 215In his final submissions, Mr Britt stated: In relation to no evidence by Mr Voetrell. It was always open to the applicant to call Voetrell, either in these proceedings, to confirm his mental state, as of 28 April, and it was always open to the applicant to provide a statement, at any stage in these proceedings, or prior to these proceedings, while the matter is being considered by the commission. That didn't occur. In our submission, we say you should draw a Jones v Dunkel inference. That may be a bit hopeful, but ultimately, at the end of the day, it's in the applicant's hands whether he wants this Commission to hear the evidence of Voetrell. 216Even though there was no convincing explanation given by the applicant as to why he did not call Leading Senior Constable Voetrell, the present case does not seem to be an appropriate one to draw a Jones v Dunkel inference. The respondent was not particularly clear as to what inference it wished to be drawn. There was neither evidence adduced by the respondent nor evidence elicited during cross-examination which contested the applicant's assertion that he was distressed and angry about missing out on the Byron Bay transfer. Indeed, there was no contest as to the fact that the applicant was upset, angry and distressed on 28 April 2011 over the unsuccessful transfer application. The contest was limited to how it affected the applicant's judgment on 28 April 2011, and later on 29 and 30 April (as well as placing the applicant's psychological and emotional reactions in perspective). 217Menzies J stated in Jones v Dunkel, as follows (at 312): In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of Evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. 218Windeyer J stated in Jones v Dunkel (at 319) as follows: But silence may amount to much more than an acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts. Until facts were proved from which an inference of negligence could be drawn, the defendant was not called upon to say anything. 219In my view, the absence of evidence from Leading Senior Constable Voetrell cannot be used to rectify a deficiency (if there be one) in the respondent's case regarding the applicant's state of distress on 28 April or his capacity to make unimpeded judgments on that day. This does not remove, of course, the capacity of the respondent to make submissions as to whether the evidence led by the applicant proved that the psychological, physical and emotional factors relied upon by him were sufficient to impede judgment in such a way that they mitigated the applicant's misconduct. 220I also note that the absence of evidence from Leading Senior Constable Voetrell did not substantially affect the parties' cases in any event. The evidence of Leading Senior Constable Voetrell could not have, in and of itself (particularly without any other notation on the shift reports or medical evidence within the 12 months preceding or the seven months succeeding the SHK incident), have the effect of proving (or, in the alternative, of disproving) that the applicant's psychological or emotional state was such that his conduct was substantially impaired for the relevant 48 hour period as it could, at most, relate to the evening of 28 April. Even in relation to the shift commencing 28 April, the evidence of Leading Senior Constable Voetrell could not speak to the applicant's psychological state in a medical sense, nor could it support the applicant's contention that this psychological state affected his conduct in a particular manner (in that it may have impaired his judgment). To the extent that he may have witnessed the applicant's distress, I have already made particular findings in the applicant's favour in that respect, namely, he was distressed on 28 April 2011 in a manner which may have had some impact on his conduct at that time. 221I will further consider this issue in light of procedural issues raised by the applicant. 222As to the procedural fairness question, the applicant submitted that the decision of Inspector Thomas not to interview Leading Senior Constable Voetrell in regard to his psychological state meant that the Commissioner had not considered relevant material which was raised by the applicant when exercising his power of removal under s 181D, making his decision to do so procedurally deficient. 223The applicant submitted that the Commissioner's findings in large part mirrored the investigator's opinion which was: Whilst these issues, either individually or collectively maybe have been playing on LSC VOUDEN"S [sic] mind at the time [SHK] entered the station and reported the matter, I don't believe that his anxiety level would have been so significant as to prevent him from exercising his general policing functions, even to refer SHK to another officer (p9 of 21). 224The balance of the applicant's written submission on this issue was that the applicant's mental state "immediately before dealing with SHK was sufficient as to affect his judgment" and, therefore, the failure by Inspector Thomas to deal with the applicant's request to obtain a statement from Constable Voetrell both: (1)Taints the findings made by the Commissioner; and (2)Means that the Commissioner has not had regard to relevant material when exercising the power to remove the applicant. 225The applicant's oral submission as to how the Commissioner's findings were tainted, was expressed in the following way: So Thomas comes to it with a certain vent, He doesn't interview people who Terry had requested he interview because he didn't think it was relevant. ... Thomas said "it couldn't have affected you in the manner that you contend". The Commissioner found that, too. ... It's the third party corroborative evidence. And forget whether it did corroborate Mr Vouden's version or not, because we don't know what. What we do know is Inspector Thomas said it couldn't have made any difference and he didn't think it was relevant and that he didn't accept that it would impact on someone's mental state like that. ... 226It might be noted that in his response, the applicant raised these issues in the following manner: I spoke to the investigating officer Inspector Thomas to ask why he didn't interview LSC Voetrell in this complaint investigation. On 28 April 2011 just prior to speaking with [SHK] SC Voettrel witnessed my state of devastation and despair. ... Inspector Thomas said to me words to the effect. 'It's not up to me to investigate evidence that supports the defence.' This was witnessed by Sgt Crowther in the Traffic Office. I refer you to s. 15A of the Public Prosecution Act 1980. I assert that I have been denied procedural fairness in you not having the benefit of a witness to my state of mind to appreciate how my state of mind was such that it is understandable I was confused and mismanaged [SHK] when he came to the station on 28 April 2011. If you had such a statement from a witness who was easily accessible you would not find it difficult to accept that the note written in English did not enter my consciousness. ... I was also informed just prior to talking to [SHK] by LSC Voettrel that he knew two of the officers that got the jobs at Byron Bay. He informed me that one was friend [sic] with a person on the selection panel and the other hand [sic] little experience and that I was more experience and suitable then [sic] both of them. This information exacerbated my state of rage and upset. I submit that I have been denied procedural fairness in you not having the benefit of LSC Voettrel's statement. ... 227The respondent submitted that this procedural issue (as well as the failure to emphasise Ex 13, as discussed below) was "irrelevant" for the following reasons: 12. The grounds contained in a notice issued under s 181D (3)(a) must set out the essential bases for the Commissioner not having confidence in the applicant's suitability in such a manner that they are sufficiently comprehensible to the applicant on whom they are served as to enable him to understand those grounds and response to them in a written submission as contemplated by s 181D (3) (b). This enables the applicant to be provided with a reasonable opportunity to respond by written submission (pursuant to s 181D3(b)) setting out, inter alia, any defence, explanation or excuse (see Commissioner of Police v Alyson Reid-Frost [201] NSWIRComm 2; (2010) 192 IR 363 at [21-22]). There is no similar obligation on the Investigation Report. 13. There is no suggestion either in opening by the applicant or in his written submissions that the notice provided to him failed to satisfy s 181D (3) (a). 228The respondent also noted, as discussed above, that it was "always open to the applicant to provide a statement [from Leading Senior Constable Voetrell] to the Inspector and/or in his s 181D response but the applicant elected not to do this". 229As to the contentions that the perceived failings of Inspector Thomas' investigation tainted the Commissioner's findings, it may be observed at the outset that the mere fact that Inspector Thomas did not interview Leading Senior Constable Voetrell does not, of itself, constitute a basis for challenging the Commissioner's decision. 230The Commissioner was required to consider the applicant's concern that Leading Senior Constable Voetrell had not been interviewed when making a determination as to the applicant's state of distress on 28 April (and related questions of mitigation). I reject the contention made by the respondent that the Commissioner's obligations in this respect are met by the giving of the notice. The Commissioner's obligation is to consider all relevant submissions advanced by the applicant in response to the notice, pursuant to s 181D(3)(c). 231In Lawrance (No 1) at [274] and [275], it was noted that: 274 I agree with Mr Murphy that the Commissioner is not required to analyse and dissect each and every matter raised by an applicant in any submission forwarded in response to a Notice issued under s 181D(3)(a). Nor, for that matter, is it consistent with the legislative scheme that reasons given by the Commissioner be approached as if requiring something akin (in the nature and standard required) to judicial reasons. 275 It is, however, necessary for the Commissioner to give consideration in his Reasons for Removal to issues of substance which are raised by the applicant so far as they have the real potential to bear upon whether or not the Commissioner should or should not maintain confidence in that officer. That approach is necessary to afford fairness to the police officer, the subject of a Notice, and will assist in proper administration of the review process undertaken by the Commission. The failure to do so (which constitutes a deficiency in the steps taken by the Commissioner) will be a factor relevant to, but not necessarily determinative of, the review process and any conclusion as to whether the removal of a police officer was harsh, unjust or unreasonable. It is worth repetition that the legislature has attached particular significance in the scheme for the removal of police officers under Div 1B of Pt 9 of the Police Act, to the reasons given by the Commissioner (per s 181F(1)(a) and, by extension, s 181D(1)(c)). 232The majority in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 ('Reid-Frost') noted the following in this respect (at [44]): We should add, in this respect, that the foregoing analysis reveals that the lynchpin of any inquiry as to procedural fairness in a review under Div 1C of Pt 9 of the Act is the content of the Reasons for Decision of the Commissioner. Procedural issues associated with the issuing of a Notice or taking into consideration a submission advanced by a police officer (per s 181D(3)(c)) are secondary to that consideration and, ultimately, only really serve to complement an assessment as to whether the Reasons for Decision given by the Commissioner demonstrate procedural failure. 233For completeness, I note it is not sufficient for the Commissioner to merely record the submission made by the applicant. He must deal with it in a manner that does not merely 'pay lip service'. 234I adopt, with respect, two passages from the judgment of the majority in Reid-Frost (at [31] and [32]), as follows: 31 As to the requirements of s 181D (1) (c), we would again adopt the formulation of Boland J in Hosemans (No 3) wherein his Honour stated (at [161]): In that consideration he must obtain an understanding of the facts and circumstances set out in the submissions, and of the contentions they urge based on those facts and circumstances (Tickner v Chapman at 476-477 per Burchett J). The Commissioner's duty under s 181D (3) (c) is a personal one unless there is a delegation of the function under s 31 of the Police Act. 32 However, we would also adopt, as being relevant to a consideration as to whether or not the Commissioner has adhered to the requirements of s181D (1) (c), the discussion by the New South Wales Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58] ('Anderson') as to the proper approach to statutory requirements imposed on a decision maker to 'consider'. Anderson concerned a judicial review, but the following observations of Tobias JA, (with whom Spigelman CJ & Macfarlan JA agreed) are applicable to the consideration of the question raised in this matter: Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, we believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, 'consider' and which, as the Full Federal Court observed in Anthonypillai, invoke "language of indefinite and subjective application". 235In the present case, the Commissioner had before him the response which raised specifically the failure of Inspector Thomas to interview Leading Senior Constable Voetrell. However, the Commissioner's reasons do not make specific reference to those concerns which suggest that, while the Commissioner was aware that the applicant was distressed on 28 April as a result of learning that he had failed to secure a coveted transfer to Byron Bay, he did not consider the investigator's failure to interview Leading Senior Constable Voetrell before drawing the conclusion that the applicant's state of distress did not affect the applicant to such an extent that it "caused [him] to act in the manner in which [he] did". The Commissioner was not obliged to require a further investigation or report (although he may have done so), but he was required to consider that issue in coming to his decision and to weigh how that might affect his deliberations. 236The Commissioner's reasons were, therefore, attended by procedural unfairness in that he did not take into account a relevant matter raised in the response. However, as I will later discuss, in relation to relevant principles concerning procedural fairness in reviewing proceedings under s 181E(1), that failure is not determinative of the question of whether the removal of the applicant was harsh, unreasonable or unjust. Further, the procedural defect needs to be assessed in the light of the fresh and independent review now undertaken by the Commission and what conclusions may be properly drawn about mitigation of the applicant's misconduct based upon his mental and emotional state over the period 28 to 30 April. It is to these considerations that I now turn after further considering the Commissioner's reasons with respect to this issue. Commissioner's Reasons re Mitigation of Conduct in SHK Allegations - Psychological and Emotional State 237The Commissioner referred to the applicant's response to the investigation of 27 March 2012 and restated the applicant's responses in the following way: Just prior to starting your shift on 28 April 2011 you were advised by a colleague that you had missed out on a position you had applied for at Byron Bay. You say this news caused you to be devastated, angry and frustrated. You say you should have terminated your shift and taken yourself out of harms way as your emotions overwhelmed you. You say you should have terminated your shift, and not agreed to speak with SHK or pass the notes to Ms Green 238The Commissioner then had regard to the response and stated: You say it [your conduct] was merely an oversight borne by emotional distress, and frustration you felt at the treatment you say you received from your command due to your involvement with a Korean person. In mitigation you rely on your psychological state as causing you to act as you did. You say that if your judgement had not been clouded you would have made a COPS entry, written up exhibits, got an official interpreter and informed a detective. And later: You appear to admit that by the end of your shift you were aware of the allegations that had been made. (This appears to be based on the applicant's answers to questions 64 to 68 of the Burwood interview.) 239The Commissioner's reasons stated: You say prior to your shift commencing you found out that you had missed out on a position you had applied for at Byron Bay. You say you were very upset at missing out on this position. 240The Commissioner's determination was premised on the finding by him that he did not accept what the applicant said about his distress on 28 April 2011. As earlier mentioned, this was expressed in the reasons, as follows: I do not accept that the news you received prior to your shift commencing affected you to the extent that it caused you to act in the manner in which it [sic] did. 241In any event, the Commissioner did not accept that the news the applicant received prior to his shift commencing affected him to the extent he claimed as a factor in mitigation. He stated: You say it took 48 hours to realise what was going on and accept SHK's complaint represented alleged criminal activity, this is hard to accept. Particularly when it appears you asked your partner to contact SHK during this period and tell him to report the incident to police. Again, your own inaction raises serious concerns regarding your integrity. 242The Commissioner made the following finding: I find it difficult to accept that the note written in English did not, as you say, enter your consciousness. Or that you were confused as to why SHK wanted you to hand the note to Ms Green. 243As to the applicant's knowledge of the allegations that had been made, the Commissioner stated as follows: You appear to admit that by the end of your shift you were aware of the allegations that had been made. Yet you failed to follow crucial policy, procedure and guidelines to make a record of the criminal allegation that had been made. These are fundamental obligations. Conclusions on Mitigatory Factors Raised by the Applicant re SHK 244Whilst the Commissioner acknowledged the applicant's submission that he was distressed during this shift on 28 April 2011 as a result of the applicant missing out on the transfer to Byron Bay and the possible connection between that decision (unsuccessful transfer) and his "involvement with a Korean person", he did not accept that those conditions caused the applicant to fail to comprehend the English note or act in the manner he did on that day. Two observations may be made about the Commissioner's reasons in this respect. First, it follows from the preceding analysis the Commissioner also declined to accept that the applicant's conduct was an oversight borne by emotional distress, fatigue or frustration. Secondly, the Commissioner rejected the submission that the applicant took 48 hours to "realise what was going on and accept SHK's complaint represented alleged criminal activity". (I will return to the Commissioner's reference in this context to the engagement of his partner in order to contact SHK in my final conclusions regarding these allegations.) 245If the Commissioner's second conclusion (as summarised) is to be construed as meaning the period after the conclusion of the applicant's shift then, having regard to my earlier findings, the conclusions must be found to be correct. Whatever conditions operated in terms of the factors affecting the applicant during his rostered shift, the evidence in these proceedings does not sustain that they persisted beyond early afternoon on 29 April in a way that affected the applicant's relevant understanding or comprehension. From that time, the applicant was fully conscious of the serious criminal allegations contained within the notes and able to act upon the basis of this knowledge. The procedural issue raised as to Leading Senior Constable Voetrell had no bearing upon the Commissioner's reasons in this respect or the findings made by the Commissioner as to mitigation as Leading Senior Constable Voetrell's capacity to make observations of a relevant kind ceased at least by the conclusion of the applicant's shift at 7am on 29 April. 246There remains the consideration of factors affecting the applicant's judgment during his shift commencing on 28 April and the balance of the Commissioner's conclusions as summarised above. 247It must be accepted that the Commissioner's conclusions as to these matters essentially dismissed the applicant's plea for mitigation based on his state of distress, fatigue, feelings of depression and emotional factors he experienced on 28 April. That conclusion was, on the evidence in these proceedings, erroneous. 248The Commissioner was entitled, as I have discussed earlier in this decision, to treat with some caution the applicant's contentions in this respect because of the source of the distress (the rejection of the transfer), and because the applicant admitted that part of his emotional response was anger and frustration. Anger and frustration may be emotions capable of affecting judgment, but it may be doubted whether they may properly be brought to account in mitigation in circumstances where the applicant's contention was that core duties as a police officer were 'overborne' by these considerations. 249However, the evidence in these proceedings enables a conclusion to be drawn that the applicant was distressed (he described his condition as being "distraught") and fatigued on 28 April which should properly have been taken into account in mitigation of his conduct on 28 April (as discussed further below). The evidence does not permit, however, a conclusion that the applicant was so overborne on that evening (or perhaps the next morning) as to be incapable of exercising any proper judgment in relation to the circumstances which confronted him. There is no medical evidence which would attest to a psychological condition such as depression operating on that occasion as may have explained or substantially explained his conduct by virtue of his impairment (substantial or otherwise) of mind. 250This conclusion connects to the related question of the Commissioner's failure to consider the omission by the investigator to interview Leading Senior Constable Voetrell. Whilst that information may have assisted in understanding the degree of the applicant's distress it could not, in my view, have substituted for medical evidence on the question. 251I agree with the respondent that it was available to the applicant to call Leading Senior Constable Voetrell in these proceedings although it should be acknowledged it is difficult to perceive how Leading Senior Constable Voetrell's evidence might have shed any clearer light on the applicant's emotions and feelings than he did himself. 252One further matter requires review under this heading. The Commissioner was correct in refusing to accept the submission advanced by the applicant in his response that the English note did "not enter his consciousness". The reasons for that conclusion are amply set out earlier in this judgment. It should be mentioned, however, that, in those conclusions, I accepted that the distress the applicant was experiencing may have contributed to his misjudgement in interpreting the English note through the lens of his understanding of Korean customs and culture. Commissioner's Further Reasons re SHK Allegations 253The Commissioner concluded, in essence, that the elements of the applicant's conduct, as set out in Allegations 1, 2 and 3, were established and, therefore, each of the allegations were made out. 254Both counsel made submissions regarding the Commissioner's findings as to integrity without identifying precisely components of the reasons associated with that issue. I will return to these submissions later in the decision. 255As to the SHK allegations generally, the Commissioner found that the applicant's conduct fell well short of the standards expected by the public from a police officer and stated: In relations to Allegations 1, 2 and 3, you acted in an entirely inappropriate manner and in a way that was inconsistent with the duties of a police officer. This is particularly so given that at the time you were a Leading Senior Constable. You failed to follow crucial policy, procedure and guidelines to make a record of the criminal allegation made. These are fundamental obligations. ... you failed to comply with fundamental procedures following what on its face was a report of a serious criminal offence. I am particularly concerned that it does not appear that you were forthright as to your knowledge concerning material handed to you by SHK. And: The proper performance of your duties requires the highest standards of integrity and it is critical when dealing with allegations of criminal activity. Your conduct as set out in Allegations 1,2 and 3 shows that you have fallen well short of these standards I consider that you demonstrated a lack of impartiality and an inability to deal with the incident objectively. 256As to the varied elements in Allegation 3, the Commissioner's findings included: I conclude that you ... formed an improper association with [SHK] ... and between 28 April 2011 and 30 April 2011 acted in a manner that was inconsistent with your duty as a Police Officer ... In relation to Allegation 3 you have failed to act according to the minimum standards of diligence and commitment reasonably expected from a professional police officer. You have conducted enquiries in a manner inconsistent with established procedure. 257The applicant submitted the Commissioner was in error in making a determination that the applicant lacked both impartiality and an inability to deal with the SHK incident objectively. However, I note the applicant, in his written submissions, conceded that the Commissioner's determination that he lacked impartiality and had not dealt with the SHK situation objectively "may have been correct as at 28 April 2011". 258The Commissioner also stated that the applicant admitted he "probably" rang Ms Green during his shift, who then spoke to SHK over the phone on two occasions and phoned the applicant again, making him "aware of the broad nature of the allegations". 259The Commissioner also found the applicant's assertion that, other than the meeting with SHK on 30 April 2011, he had no contact with SHK was disingenuous because there was regular contact via the applicant's partner. Elaborating on this, the Commissioner stated that he had grave concerns about the applicant's meeting with SHK, as follows: I am also particularly alarmed that you felt it was appropriate for you and your partner to meet with SHK. This again demonstrated your willingness to act contrary to fundamental policy and procedure. 260Overall the Commissioner concluded: However, it is my view that you have failed to comply with matters of fundamental importance and your actions cannot be justified. ... 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. You have failed this duty. Overall Conclusions re SHK Allegations Further Procedural Issue : Failure to Consider Legal Advice 261Before turning to the consideration of the gravity of the applicant's misconduct in relation to the SHK allegations and issues concerning his 'integrity', it is necessary to consider a further procedural fairness issue raised by the applicant regarding Ex 13. This issue, in part, concerns findings that may be made about the seriousness of the applicant's misconduct and integrity and the ultimate conclusions that may be reached under this heading. 262The applicant contended that he had been denied procedural fairness because the Commissioner had failed to have regard to a component of a Legal Advice provided during the criminal investigation against the applicant. It was contended the failure arose because, whilst the report had been annexed to the body of the report which went to the Commissioner, no particular reference was made to a conclusion reached in the report which cast a favourable light on the applicant's conduct vis á vis the SHK allegations. 263The advice provided by Senior Constable Heery, of the Legal Service Division of the Police Prosecution Command, was (including the relevant surrounding passages) as follows: In the absence of evidence of any acts, there is also no basis on which the intent of Leading Senior Constable VOUDEN can be inferred. This is due largely to the absence of a statement from Detective Senior Constable LITTLE, who is the only person capable of giving evidence about the existence of the letters and the behaviour of Leading Senior Constable VOUDEN. ... At the very highest, the allegations are that Leading Senior Constable VOUDEN received a letter, written in Korean, from KHAN [sic] on the 28 April 2011. On the 30 April 2011, in company of his wife and KHAN [sic], a telephone call was made to NAM where on that same evening Leading Senior Constable VOUDEN produced the handwritten letter to investigators. ... Leading Senior Constable Vouden apparently held onto the letter received on the 28 April 2010 so his wife could translate it, and for that purpose it was only in his possession for two days. As soon as he was aware a complaint had been made in relation to sexual assault, he surrendered the letter to investigators. .Assuming that Leading senior constable Vouden had some role in orchestrating the phone call on 30 April 2010 [sic], the only thing that occurred was that Nam was encouraged to report the sexual assault matter to the Police. On that evidence I can see no conduct that would allow a court to draw the inference that it was the intent of Leading Senior Constable Vouden that the course of justice would be obstructed, prevented, perverted or defeated. His conduct, as alleged, in my view in fact assisted the course of justice, it did not obstruct it. ... To establish that Police were hindered the prosecution is required to prove that the conduct of Leading Senior Constable VOUDEN made the discovery of the letters substantially more difficult, in my view, the conduct of Leading Senior Constable VOUDEN falls well short of that test. ... The allegation that Leading Senior Constable VOUDEN kept custody of letter given to him by KANG on the 28 April 2011 did not pervert the course of justice in my view. As soon as he was aware an allegation had be made involving KANG he surrendered the letter to investigators, there was no impediments to the investigation and in fact KANG was arrested on 1 May 2010. 264Counsel for the applicant contended that: [b]y not having regard to the report the Commissioner had fallen into error in his determination by not having regard to relevant material. He submitted that: [h]ad the Commissioner been aware of the content of the legal advice the outcome may well have been different. 265The applicant contended that Inspector Thomas' annexing of the advice to his report without providing a particular reference to the aforementioned advice was a failure to do his job in the manner required by the Complaints Handling Process as it resulted in an unbalanced and unfair opinion being provided of the applicant's conduct (and whether it constituted misconduct). This was the second of three procedural fairness issues raised by the applicant, having their genesis in procedures adopted by Inspector Thomas. Overall the applicant submitted that: [The applicant] was hung out to dry by Inspector Thomas who did not produce a fair and objective and balanced report. Those reports led to [the applicant's] removal. The tenor of those reports pervades the Commissioner's reasons. The procedurally unfair investigation process mean the applicant would never have a fair and objective determination made by the Commissioner. This renders the removal both unreasonable and unjust. 266The respondent submitted the failure of Inspector Thomas to include "one sentence of Ex 13" in his report was largely irrelevant for the following reasons: (a) The one sentence is not a legal opinion when properly considered; (b) It is an opinion of one person and that is no different than that of any other person; (c) It is clear that Ex 13 was attached to the Investigation Report (see Ex 12 GT12 at p6 note); (d) Further, and more importantly, the facts upon which one individual's opinion was sought (and which would seem to be the basis of the opinion) were in fact included in the body of the Investigation Report (see Ex 12 GT 12 at p4). That means that any person considering the Investigators Report had the same factual information as SC Heerey (author of Ex 13); and (e) It is hardly surprising that the applicant as a police officer did assist in a police investigation but what is concerning is the 48 hour delay in so doing (e.g. failing to create an event on COPS, failing to disclose the letters or registering them as exhibits) and the steps taken by him or with his knowledge in the intervening period to assist [SHK]. 267Mr Nagle cross-examined Inspector Thomas on his failure to refer to the relevant extract of the Legal Advice as follows: Q. Is it referred to in your report? A. The extract from the legal adviser, that there was insufficient material to prove criminal matter to proceed, that extract is in there. The paragraph you were referring to, in relation to assisting in the administration of justice, but that was not in my 150 report, my final investigator's report with CMT. Q. Why? A. The first three categories that related to the criminal matters were not sustained. And the report based itself on the matters 4, 5 and 6 which were Departmental matters which comprised the bulk of the report. The complaint management team in assessing my report had access to all of the material correspondence that formed the basis for that report. Q. Is that your answer? A. Yes. Q. That's as good as it's going to get? A. That's my answer. Q. Do you accept, that if a legal advice is obtained by the New South Wales force and provided to you as an investigator that says that a person, the subject of investigation, that is Terry Vouden, assisted in the course of justice and did not obstruct it, that that is a matter which might assist Mr Vouden in relation to disciplinary matters? A. Well, it is an advice. Q. Sorry, did you understand the question I asked you? A. Yes. Q. Can you please answer it? A. The advice from the Legal Services wasn't suppressed from those adjudicating on any outcome as a result of the investigation. Q. Did you understand the question that I asked you before, sir? A. Yes. Q. Could you answer it sir? A. I believe I just did. 268Mr Nagle also cross-examined Inspector Pryde (who had received Inspector Thomas' report in his capacity as Acting Burwood Local Area Commander) with respect to whether the Legal Advice should have been included in the report, particularly given that the advice was in relation to criminal matters. There was a lengthy exchange which culminated as follows: Q. You accept that the investigator had a duty to report matters both inculpatory and exculpatory? A. Yes. Q. Do you accept that assisting in the course of justice would be exculpatory? A. Yes I do. Q. Should have gone in the report? A. Amongst other things yes. 269Inspector Pryde admitted that he did not read the advice: Q. Do you recall reading anything in the investigator's report about Terry assisting the course of justice, not obstructing? A. No I don't recall reading this in the investigator's report. ... Q. Do you remember that legal advice being discussed in the CMT meetings? A. It was discussed, but I haven't read I wasn't provided with a copy of the advice but didn't read it. Q. You did not go into the c@tsi's file and check the annexures to the investigators' reports? A. No, I didn't. Q. Why not? A. Because I had confidence in my team around me. The executive officer who provides the documentation at the complaints management team, I take advice. 270I do not consider, on balance, it may be found that the Commissioner had regard to the opinion contained in the Legal Advice. He did not refer to it in his reasons and those advising him had little or no knowledge of the content of the opinions expressed in the material. It was, after all, only a passage from a single document contained in a large bundle of material. 271I would not wish to suggest that the investigator, or those preparing a report for the Commissioner associated with the 'Commissioner's Confidence Submissions', was obliged to highlight every consequential matter arising out of the accompanying materials within the report. Facts may often be regarded as readily discoverable from the materials incorporated in the 'Commissioner's Confidence Submissions'. But here, as the evidence demonstrated, there was every likelihood that a material exculpatory fact would not have been considered by the Commissioner without specific reference by means of the report or otherwise. 272It may be noted that the Commissioner was not bound to accept the legal opinion. Further, the Commissioner did, in fact, have access to the same evidence that informed Senior Constable Heery's view. 273However, the Legal Advice was exculpatory material bearing upon the question of the seriousness of the misconduct and, therefore, potentially upon the applicant's integrity. It was required to be evaluated in the deliberations undertaken by the Commissioner. The failure to direct the Commissioner's attention to the opinion contained within the report meant that the Commissioner's reasons were attended by procedural unfairness. 274The Commissioner was aware, in reaching his decision to remove the applicant, that criminal charges had not been laid against him. This was brought to his attention by Inspector Thomas. He also undertook an assessment, as he was required to do, of the circumstances in which the applicant provided information about the allegations in the notes, and SHK in particular, and thereby, the nature and extent of the assistance provided by the applicant and whether he conformed with his duties as a police officer. What the Commissioner failed to consider is whether and to what extent an opinion expressed in an advice (that the applicant assisted in, and did not obstruct, the course of justice) should influence his considerations as to the applicant's conduct vis á vis these allegations. 275However, in order to assess the significance of this conclusion for the ultimate question the Commission is required to consider, it is necessary to assess the true nature and character of the omission. This will involve an assessment as to the basis upon which the opinion was formed and the veracity of the opinion when considered in the light of the evidence, relevant to the opinion in these proceedings. This analysis will be undertaken in the final conclusion of this section which follows immediately below. General Conclusion : Conduct and Integrity re SHK Allegations 276Whilst the conclusions reached by the Commissioner that, on 28 April, the applicant acted inconsistently with his duties as a police officer, in breach of fundamental policies and procedures and with a lack of impartiality and objectivity, were, on the face of the applicant's conduct as ascribed to him in the Commissioner's reasons relating to Allegations 1, 2 and 3 (so far as relevant to the applicant's conduct during his shift on that day), abundantly open to the Commissioner, and sustained on the evidence in these proceedings, they should be mitigated, to the extent of and in accordance with my earlier findings as to the applicant's mental and emotional states and fatigue on that day. 277The applicant did comprehend the criminal allegations within the notes on 28 April (as found by the Commissioner) but did not properly discharge his duties as a police officer because of his reaction to being approached by a further Korean person and his perception or understanding of Korean culture or customs. The applicant's state of despair, stress and fatigue on the evening of 28 April (to the end of his shift) does mitigate that conduct in the sense that it made him more susceptible to misjudgement based on the 'Korean' factors. However, that exculpatory factor is limited (I have found it to be only moderate) by virtue of the moderate severity of that impediment (as I have earlier found) and the fact that the applicant was conscious that he was possessed of a note containing criminal allegations and had obligations as a police officer in that respect (the Commissioner describes this in terms of his failure to act as required). 278On the evidence in these proceedings, the applicant was not impaired to such an extent that he did not comprehend these matters. Rather, he allowed, as the Commissioner found, his anger over Korean persons approaching him and the impression he formed about the allegations based upon his understanding of the Korean community's customs, to override the judgment required of him as a police officer. He did so, however, in circumstances where that judgment was influenced (contrary to the Commissioner's findings), to some degree, by his distressed state. 279I note that this conclusion does not proceed upon the basis of the Commissioner's finding that the applicant had been made aware of the allegations via telephone call with Ms Green during his shift on 28 April. Whilst the evidence supports such a discussion occurring, it does not support the finding made by the Commissioner that the contents of the notes were passed on in this fashion. 280The misconduct engaged in by the applicant following the early afternoon of 29 April until he made contact with Detective Senior Constable Little on 30 April, was not diminished by factors such as distress, stress and fatigue (as earlier discussed) and overall is more serious. 281The applicant was not impeded on 29 April by the factors mitigating his conduct on the previous evening and was, on the evidence, fully aware, by the afternoon of that day, of the content of the notes and, more significantly, the serious criminal allegations contained in them. 282Even if it were to be concluded that the applicant still remained motivated, to some extent, in his conduct by the fact that the allegations were made by or about Korean persons, he was, by the afternoon of 29 April, aware, without the presence of these mitigating factors, that those same persons were making or were the subject of serious criminal allegations. As the Commissioner observed, the applicant's overriding obligation was his duty as a police officer. 283Rather than executing his duty as a police officer by reporting the existence of the notes and the accompanying allegations, and complying with relevant policy and procedures established by the Commissioner, he embarked upon a course in which he had acquiesced in a communication being made by his partner to SHK, and an arrangement being made by his partner for a meeting with SHK. He subsequently attended that meeting with his partner at the Club. 284From the evening of 28 April, the applicant was not 'forthright' as to his knowledge concerning the notes until the evening of 30 April when he contacted Detective Senior Constable Little. This is demonstrated by the above findings, particularly by the fact that the applicant did not communicate his knowledge of the allegations to police, even when fully comprehending their significance on 29 April, and instead took extraordinary, and private, steps to meet with SHK through and with his partner on 30 April. This finding is consistent with the Commissioner's reasons. 285Counsel for the applicant contended that the applicant passed on all material relevant to SHK once he became aware of the gravity of the circumstances surrounding the allegations. 286However, this submission may not, when expressed on this broad basis, be accepted. First, the applicant knew of the gravity of the allegations, as I have mentioned, on 29 April. Putting aside his shift on 28 April, there was, on 29 April, an appropriate opportunity for him to fulfil his duties as a police officer by providing, as his counsel described, all material relevant to SHK as well as information concerning what had transpired the previous evening. Secondly, it was not the acquisition of knowledge as to the gravity of the allegations which galvanised the applicant into action, but, as I have found, the acquisition of knowledge, after his partner spoke to one of the complainants in his presence, that they intended to or had made a report to the police. 287The applicant submitted that his conduct, in this respect, must be assessed in the light of the opinions expressed in the report prepared by Senior Constable Heery. 288That opinion is proffered in the context of an examination by the Senior Constable as to whether criminal charges would be laid against the applicant for perverting the course of justice. 289The question posed for the advice was: Is there sufficient evidence to commence criminal proceedings against Senior Constable Terrence VOUDEN in relation to the offence of Pervert the Course of Justice? 290The fact that the opinion was expressed in the negative and that charges were not laid against the applicant must be taken into account in this review. As I have noted, the Commissioner was required to consider that matter, albeit for different reasons. 291Notwithstanding the single question posed, Senior Constable Heery also proffered an opinion that the applicant assisted the course of justice. This must also be taken into account in this review. 292However, the fact that charges were not proffered against the applicant (or in another context, charges were upheld or dismissed) cannot be determinative of the question as to whether the applicant's removal was harsh, unjust or unreasonable. Apart from the requirement of the Commission to consider and weigh up all factors arising under s 181F, the jurisprudence of the Commission in unfair dismissal proceedings makes it clear that, even the acquittal of an employee of criminal charges, the subject matter of which gave rise to the dismissal will not be determinative of unfair dismissal proceedings. 293An example of the application of these principles is the decision of the Full Bench in Commissioner of Police v Brennan [2008] NSWIRComm 52, where a distinction between criminal processes (in that case, a conviction was entered) and assessments undertaken in review proceedings was discussed. The Full Bench stated (at [61]): Punishment, being one of the purposes of sentencing, is not the objective in removing a police officer and it is not the Commission's task in assessing whether the removal was harsh, for instance, to assess whether or not removal was the appropriate punishment. What his Honour was required to do pursuant to s 181F(3) was to have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to s 181D(1)). In other words, the Commission is required to weigh up the competing interests of both an applicant and the public interest, which includes maintaining the integrity of the Police Force. In doing so, the Commission is required to consider, amongst other things, whether the conduct of the police officer that led to his or her removal was such that it so undermined the Force's integrity as to outweigh the applicant's interests. An assessment of the level of culpability of the officer's conduct based on the sentence for a criminal conviction is not the correct focus of the inquiry under s 181F(3) and may lead the trial judge into error which, in our opinion, is what occurred here. 294Further, the Commission is not bound to accept the opinion expressed and should form its own view as part of the review. 295It is not appropriate, in my view, to make any finding as to the veracity of Senior Constable Heery's conclusion that there was no prima facie case established against the applicant for the offence to pervert the course of justice pursuant to s 319 of the Crimes Act 1900. I will, therefore, approach the matter upon the basis that no criminal charges were proffered as a result of Senior Constable Heery's advice (received by Inspector Thomas on 16 September 2011). 296However, the Senior Constable's opinion that the applicant assisted the course of justice is a different matter as it falls outside the question which he was mandated to investigate. 297It would appear that the Senior Constable's opinion was formed due to three factors: (1)The applicant may have orchestrated the phone call made by Ms Green to Ms Nam and "the only thing that occurred was that NAM was encouraged to report the sexual assault matter to Police"; (2)The applicant "only" had the notes in his possession for two days; and (3)The applicant provided the notes to the investigator. 298As to when the notes were produced by the applicant to the investigators, Senior Constable Heery expressed two opinions which, on the evidence in these proceedings, appear to be contradictory, namely: As soon as he [the applicant] was aware a complaint had been made in relation to sexual assault he surrendered the letter to investigators; And As soon as he was aware an allegation had be made involving [SHK] he surrendered the; letter to investigators, there was no impediment to the investigation and in fact [SHK] was arrested on 1 May 2010 [sic] (I have taken the reference to a "complaint" in the first extract as a reference to a report or complaint to police.) 299It may be that the Senior Constable considered there was not any material difference in the description of steps taken by the applicant. This may be because the inconsistency is less apparent from the information he had at hand. However, on the evidence in these proceedings, the distinction is significant and would warrant treating the Senior Constable's overall opinion (as to the assistance provided by the applicant to the course of justice) with that caveat. 300On the evidence in the proceedings, the conclusion reached by Senior Constable Heery that the applicant surrendered the notes to Detective Senior Constable Little "as soon as he became aware that allegations had been made involving SHK", cannot be sustained. In fact, the conclusion cannot be sustained with respect to the knowledge held by the applicant on either 28 or 29 April. 301In reaching his opinion, Senior Constable Heery seemed to have formed the view the telephone call made by Ms Green was productive of an outcome that Ms Nam would go to the police. The evidence in these proceedings does not permit a conclusion that Ms Green's phone call did produce this outcome. However, there is some evidence to suggest the contrary, namely, that a text was sent to SHK by Ms Nam before the telephone call indicating she was going to the police. 302Further, the Senior Constable attached no weight to the lack of propriety of the applicant meeting with SHK in the circumstances applying on 30 April 2011. 303In the final analysis, on the evidence in these proceedings, I cannot accept the opinion expressed by Senior Constable Heery, particularly in the broad manner in which the opinion was expressed. 304In my view, the applicant did not do all that was required to assist the course of justice by making the authorities aware at the earliest available opportunity (which, if one takes into account mitigating factors, was, at least, the afternoon of 29 April 2011) of the significant allegations made as to SHK. More will be discussed about this question in considering the Commissioner's integrity findings 305The final and important matter concerning the applicant's conduct is his conflict of interest and the improper association he engaged in with SHK. These are vital to the assessment of the seriousness of his misconduct and it is to those considerations I now turn. 306I have earlier made findings as to the applicant's conflict of interest and his engagement in an improper association when he met with SHK. I do not repeat the conclusions here. However, I do consider that the Commissioner was correct to be alarmed that the applicant had met with SHK with his partner. The involvement of his partner in this way, and by engaging her in telephone contact with SHK and acting as an interpreter, contrary to the regulations, codes, policies and values referred to in the Commissioner's reasons, aggravated the applicant's misconduct. 307In this light, and having regard to the nature of the criminal allegations within the notes (concerning SHK), I do not consider the improper association was at the lower end of the spectrum (although it is clearly also not of the most grave character). I reject, therefore, the contention advanced by the applicant in relation to the first issue. 308Before turning to the question of integrity, I will deal with one final challenge made by the applicant to the Commissioner's reasons. 309The applicant challenged the Commissioner's findings that the applicant's submission that he had no contact with SHK, other than on 30 April, was disingenuous. This finding by the Commissioner appears to relate to a statement in the applicant's submission to the investigator, Inspector Thomas, in which the applicant stated that, after his meeting with SHK on 28 April: I never contacted him again. He telephoned my wife and we met on the 30 April 2011, when, with a professional persona I contacted the detective in charge of the investigation. 310Whilst the Commissioner appears to have inaccurately referred to the applicant's submission in that respect, the actual statement made by the applicant in his submission is disingenuous. What the applicant omitted to state in the submission to Inspector Thomas was that Ms Green had contacted SHK, with his knowledge, in order to arrange the meeting on 30 April. 311I turn now to the question of integrity. 312The Commissioner stated that he had concerns as to the integrity of the applicant vis á vis the SHK allegations essentially upon two grounds: (1)The applicant failed to act in accordance with minimum standards of duty reasonably expected of a professional police officer and conducted himself in a manner inconsistent with established procedure including involving Ms Green in a policing issue; and (2)The Commissioner's disbelief that the applicant took "48 hours to realise what was going on and accept that [SHK's] complaint represented alleged criminal activity". 313Notwithstanding the manner in which the Commissioner expressed this conclusion (as a matter of concern), it is clear that he intended to make findings adverse to the applicant's integrity vis á vis the SHK allegation. The parties certainly approached the question in that way. 314The factual ingredients for these concerns expressed by the Commissioner are amply supported by the evidence in these proceedings as discussed in the earlier analysis of the SHK allegations in this decision. 315The question is whether the circumstances referred to by the Commissioner could properly result in an adverse finding by him as to the integrity of the applicant. The related question is, of course, whether adverse findings of integrity are available on the evidence in these proceedings. 316Integrity is one of the four grounds permitting the Commissioner to remove a police officer for a loss of confidence under s 181D(1). The expression is not defined in the Act. It is, however, a foremost consideration in the Statement of Values expressed in s 7 of the Act. There, it is said, that each member of the Police Force is to act in a manner which "places integrity above all". 317The meaning of the expression 'integrity' under the Act was reviewed in Toshack v Commissioner of Police [2009] NSW IRComm 31; (2009) 181 IR 420 at [44] to [49] wherein the Full Bench stated: 44 In the present case, the Commissioner relied on the appellant's conduct and integrity. We will come shortly to the evidence regarding the appellant's conduct as it reflects on his integrity. In respect of integrity, the word has a wider meaning than honesty, although it may countenance honesty. The Macquarie Dictionary Online (fourth edition, 2005) relevantly defines integrity as "soundness of moral principle and character; uprightness; honesty." The online Oxford English Dictionary (Oxford University Press, 2008), in defining "integrity" when it is used in the moral sense, states: "a. Unimpaired moral state; freedom from moral corruption; innocence, sinlessness. b. Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity." 45 Thus, when this Tribunal is called upon to review the Commissioner's decision to remove a police officer on grounds relating to the officer's integrity (or more particularly, lack of it) the Commission will consider whether the officer is a person of sound moral principle and character. That may involve questions of the officer's honesty, uprightness and sincerity. The Commission will also have regard to s 7 of the Police Act which sets out a "Statement of values of members of NSW Police Force", foremost amongst which is that: Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, ... 46 It has been said, however, in various ways, that the requirement of a police officer to act with integrity does not constitute an absolute test of the officer's suitability to remain in the Force. See, for example, Alexander v Commissioner of Police [2009] NSWIRComm 3 at [48]; Raymond Sewell v New South Wales Police Force. Application by Raymond Sewell for review of an order under s 181E of the Police Act 1990 [2008] NSWIRComm 93 at [131]. That must be so, in our opinion, otherwise the whole system of review under Division 1C of Pt 9 of the Police Act would be otiose. 47 Similarly, the Commissioner may promulgate from time to time codes of conduct or ethics or statements of value which may act as a 'touchstone' of the integrity of the officer. However, as Haylen J pointed out in Sewell v NSW Police Force (as approved in Commissioner of Police v Sewell [2008] NSWIRComm 147 at [20]), such codes "should not be treated as a monolith but should be treated as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review". 48 There is another important consideration in this respect. Whilst the question of integrity has been considered in the context of the requirements of s 181F(3) (Commissioner of Police v Brennan [2008] NSWIRComm 52), and whilst considerations under that section may impact upon the question as to whether the removal of an officer was harsh, unreasonable or unjust and discretionary matters such as the determination of appropriate relief in a given case (Van Huistedde v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 at [216] and see Commissioner of Police v Sewell at [15]), it must be steadily borne in mind that there is a distinction between the consideration of a police officer's integrity by the Commissioner under s 181D(1) and general notions of integrity that may be raised more broadly in the context of review proceedings brought under s 181E(1). 49 The Commissioner's consideration of integrity is undertaken in a particular context, including requirements of the Police Act, standards established by the Commissioner from time to time (subject to the observations above) and the particular factual substratum (including documentary materials and submissions) which underpinned the Commissioner's decision to remove a police officer. That decision and the reasons given for it must be considered firstly, and will require the Commission to consider, inter alia, whether the decision of the Commissioner is sustainable or not in the light of the reasons given by the Commissioner having regard to the provisions of s 181F(1)(a). Other considerations may arise in an appropriate case such as the later conduct of a police officer or matters arising before the removal, which are appropriate to be taken into account in accordance with the principles discussed in Starr v Commissioner of Police [2001] NSWIRComm 226 at [321] to [326]. Additional matters to those considered by the Commissioner may be taken into account in the review to decide whether the removal was harsh, unreasonable or unjust under s 181E (see Little v Commissioner of Police (2002) 112 IR 212 at [75]). But none of this removes the primary obligation of considering the reasons provided by the Commissioner (in the context in which they were given). So much will also ground any consideration of the integrity of the police officer arising in the reasons for removal. Matters arising for consideration under s 181F(3) will be assessed later in the sequence of deliberation and involve broader considerations (which have been much discussed in the authorities). 318It will be observed that the question of integrity under s 181D(1) and the integrity requirements of s 7(a) of the Act may be assessed by reference to the conduct of the police officer and will involve matters of personal integrity both in the discharge of the officer's duties and in consideration of the officer's off duty conduct. Those considerations may be distinguished from matters of institutional integrity in s 181F(3)(b) (although the matters arising under that section will also engulf integrity questions arising from consideration under s 181D(1) and s 181E(1)). In Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458, Spigelman CJ (Macfarlan and Young JJA agreed) stated (at [72]): Although s 181F (3) (b) uses language of institutional integrity, rather than of personal integrity as identified in s 7(a) of the Police Act, in its particular context the reference to "integrity of the ... Force" should be understood as encompassing any issues of integrity that arise with respect to the order for removal of the particular officer to which the review by the Commission relates. 319Reference should be also be made to the observations of Brennan J in Police Service Board v Morris and Martin (1985) 156 CLR 397 at 412: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. 320It may be readily accepted, on the evidence in these proceedings, that the applicant's conduct in relation to the SHK allegations would not permit severe adverse findings as to integrity such as dishonesty, corruption or criminality. To the extent that the Commissioner made integrity findings based on honesty, those conclusions may be rejected. 321However, the Commissioner was, in my view, justified, for the reasons he gave (as summarised above), in making adverse findings regarding the applicant's integrity. The conclusions were available on the face of the conduct relied upon by the Commissioner and by his reference to infringements of regulations, codes of conduct and ethics, policies and guidelines and statement of values (which may act as a guide to factors of integrity: Toshack). 322The factors relied upon by the Commissioner, as sustained by the evidence in these proceedings, reflect adversely upon the applicant's character and, further, indicate that he failed to conduct himself in the upright and sincere manner expected of a member of the Police Force. There is also the issue, mentioned earlier in this decision, that the applicant had not been forthright in his behaviour. 323Paramount in the first of the factors relied upon by the Commissioner in this respect as referred to in [312] is the improper association engaged in by the applicant. The conduct was in breach of clear standards laid down by the Commissioner governing improper association and conflict of interest. The applicant associated in a private capacity with a person he knew to be the subject of an alleged criminal activity. He made a conscious decision to embark upon an association in full knowledge of the allegations in the notes. The fact that he recognised the need to have SHK taken to the police station but did not so act, does not lessen conclusions as to a lack of integrity but worsens them because the applicant proceeded to meet with SHK, notwithstanding a clear understanding of his obligations (as he conveyed to Ms Green). To adopt the words of Brennan J in Morris, the applicant fell far short of the "assiduous performance of duty", even when he fully embraced what that duty was. That the applicant could involve Ms Green in a policing issue aggravated this factor (as the Commissioner amply described in his reasons by reference to relevant standards). 324The Commissioner did not mention in his reasons, with respect to the SHK allegations, the consideration of the applicant's lack of insight into the seriousness of his behaviour, but, as Toshack makes clear, that should not impede such an assessment being made in these proceedings having regard to the cases of the parties. In my view, it is clear the applicant still does not comprehend the seriousness of the improper association in which he engaged and how that conduct and his lack of insight cast a poor light upon his standing as a police officer. This is also a matter going to integrity. 325As to the second reason advanced by the Commissioner, he was justified on the evidence in having a "disbelief" that the applicant took 48 hours to "realise what was going on and accept that SHK's 'complaint' represented alleged criminal activity". The applicant made a conscious decision, unaffected by physical and mental states, not to report his dealing with SHK and the information in his possession of criminal allegations on 29 April in a manner gravely inconsistent with his obligations as a police officer. He also made decisions conscious of the allegations on 28 April, albeit affected by his state of distress and fatigue in the manner I have described above. 326This conclusion is not diminished by the fact that the conduct engaged in by the applicant extended over only two days, as discussed by Senior Constable Heery, because what is centrally at issue here is the judgment made by the applicant. It was those decisions which reflected upon his character. The shortness of time frame is relevant to mitigation in that it reflected that he took correctional measures (albeit in the circumstances I have referred to in discussing conduct) within the two day period. 327In my view, adverse integrity findings should be made against the applicant in connection with the SHK allegations consistent with the concerns expressed by the Commissioner and in accordance with the above discussion. 328Overall, I consider that a finding should be made that, based upon my findings as to conduct, as contemplated within s 181D(1), the applicant engaged in misconduct, vis á vis the SHK allegations, which was serious. The factual matrix upon which integrity findings have been made overlap substantially with those concerning conduct and, therefore, it is important not to double count those factors in assessing the seriousness of the applicant's misconduct. Nonetheless, conclusions as to his integrity do confirm and reinforce the seriousness of his misconduct and are relevant to the ultimate disposition of the question as to whether the removal was harsh, unjust or unreasonable (and related questions arising under s 181F(3)(b)). The COPS Allegations The Factual Background 329The conduct of the applicant that ultimately formed the substance of Allegations 1, 2 and 3 became the subject of investigation by the Police Force, as described above. In consequence, the applicant was placed on the First IMP, which he signed on 12 May 2011, whereby he was confined to restricted duties at Five Dock police station. 330I have extracted some parts of that instrument, which are pertinent to Allegations 4, 5, 6 and 7, as follows: (1)Strategy 5 provided: That you are to record each reason for access of the NSW Police Computerised Operational Policing System (COPS). These RFA's are to have meaningful reason as to the access and must be directly related to your duties. The stated purpose of Strategy 5 was: To ensure compliance in terms of your access to information and data directly relevant to your duties and not seek out information that may be related to this investigation. (2)Strategy 6 provided: You will be subjected to monthly audits of your COPS and RTA accesses which you will respond to immediately upon being served with such audit. The stated purpose of Strategy 6 was: To monitor your access to confidential and sensitive data relating to the investigation of the SHK allegations and to ensure only appropriate access to the various computerised Policing systems. (3)Strategy 7 provided: That you not be permitted to supervise any staff or perform any supervisory functions whilst on this plan The stated purpose of Strategy 7 was: To limit your exposure to other officers and to not duly exert any authority over junior officers involved in this investigation. 331It may be noted that, whilst the conduct impugned in Allegations 4, 5, 6 and 7 amounted to breaches of the First IMP, the allegations do not, in terms, concern breaches of that instrument. The First IMP is thereby referred to in this discussion of the applicant's conduct only to provide the context in which the allegations may be considered. It may be noted at this juncture, however, that the First IMP bears upon my ultimate considerations in this matter including, inter alia, the likelihood of reoffending. The 7 June 2011 COPS Access 332On 7 June 2011, at 2.44pm, the applicant accessed COPS using his own Central Names Index ('CNI'). The reason for access was recorded as 'To obtain information or request under freedom of information'. 333The Commissioner found that this access constituted an inquiry by the applicant for his own personal interests, rather than the interests of the Police Force, and was contrary to the 'NSW Police Force Code of Conduct and Ethics' (citing Points 1 and 8 of that instrument). 334In the 'Consideration' section of his reasons, the Commissioner stated that this conduct demonstrated the applicant's "readiness to disregard policy even when ... under close supervision and scrutiny". This was an apparent reference to the First IMP, which prescribed, inter alia, that the applicant should only access COPS for a "meaningful reason" related to his duties (see [2(1)]). 335The applicant admitted that he accessed COPS on 7 June 2011, however, he emphasised that this access was in pursuance of a lawful application to the Police Force under the Government Information (Public Access) Act 2009 ('the GIPA Act' or 'GIPA'). 336The applicant submitted that, during the investigation of this incident by Inspector Thomas, the GIPA unit of the Police Force was not contacted and that Inspector Thomas thereby had the erroneous understanding that the applicant was planning to make a GIPA request, when in fact the GIPA application was received by the Police Force on 24 June 2011. The applicant contended that, upon discovering this, Inspector Thomas resiled from the reasons presented in his investigation report, recasting his determination that the applicant's conduct was inappropriate as a result of his contravention of the terms of the First IMP. The applicant submitted that Inspector Thomas' willingness to recant what he had deemed 'inappropriate conduct' demonstrated that he did not undertake his investigative task in "an objective and fair way". 337Further, the applicant's submissions raised the question of whether he was denied procedural fairness because Inspector Thomas did not indicate to the applicant prior to the interview undertaken in Campsie on 4 August 2011 that he would be directing questions to the applicant about his COPS access on 7 June 2011. 338The respondent submitted that the applicant had "ample" time to prepare for the aforementioned interview, and that Inspector Thomas only asked the applicant three questions relating to the 7 June 2011 COPS access at that time. It was also submitted that Inspector Thomas was always cognisant of the First IMP when considering the applicant's conduct. 339The respondent noted further that, as the Commissioner was aware of the GIPA application, Inspector Thomas' erroneous understanding was irrelevant. 340I accept the respondent's submissions in this latter respect. It is clear from the Commissioner's statement of reasons that he was aware that the Police Force had received the GIPA application. 341The issue relevant for determination under s 181D is the steps taken by the Commissioner prior to the removal of an officer, including whether the Commissioner made erroneous findings in his reasons for removal or failed to have regard to a matter raised in an officer's response to a notice issued under that section: Reid-Frost at [36], [43] and [67]. The failure of an investigatory process, if reflected in the Commissioner's assessment, may be relevant but, as previously observed, only in the sense that it informs the assessment of the adequacy or fairness of the Commissioner's reasons. It is the Commissioner's reasons, and not an investigation per se, which require attention under s 181F(1)(a). 342It might be noted at this junction that the misconduct presented in the allegation was whether the applicant had accessed COPS for reasons of a personal nature (as opposed to police duties). 343The applicant contended that this access, admittedly for his own self-interest, was lawful and not in breach of any code (because there is no misconduct in an officer accessing their own details under a CNI number). 344Counsel for the applicant submitted as follows: Yet, your Honour heard from countless of the Commissioner's witnesses that accessing one's own CNI number was a regular procedure and was something which was done often. It would often be done to put on a notation about an injury received during the course of duty. But you wouldn't have another officer access your CNI to make the entry; you'd just do it yourself because officers were permitted to access their own CNI. 345Moreover, as the applicant did not access the relevant classified report (instead seeking to use a lawful GIPA application to obtain it), he submitted that the matter should not be considered as misconduct. 346The applicant thus contended that the Commissioner "was in error in relying upon the incident". The conclusions reached by the Commissioner that the applicant's conduct demonstrated a readiness to disregard policy even when under close supervision and scrutiny were "unwarranted and incorrect". The applicant contended that the Commissioner's conclusions regarding Allegation 4 were "unreasonable and or unjust", and that the allegation should not constitute a ground for removal. 347I accept that the applicant's access of COPS was in relation to a lawful GIPA application, however, the access was still "without authority". The applicant admitted that his access to COPS was for a personal matter, which was not required by his duties. This conduct was thereby in contravention of the policies governing the use of COPS, vitiating his authority to access the system (see, for example, Point 8 of the 'NSW Police Force Code of Conduct and Ethics', as relied upon by the Commissioner). 348It follows that the allegation is established on the evidence and represents a contravention of the code governing the use of COPS. The fact that the access was undertaken with respect to the acquisition of information which was lawfully available under GIPA does not diminish that conclusion, although the misconduct is plainly less grave than if the information had been sourced for an unlawful purpose or in order to take a step in relation to COPS that represented a serious breach of that system such as obtaining or manipulating the information for self-interest or in a manner inconsistent with the duties of a police officer. 349The Commissioner's finding of the applicant's "readiness to disregard policy even when [the applicant] should have been on notice that [his] actions were under close supervision and scrutiny" goes to the seriousness of this breach. 350However, I do not consider that this misconduct may, in itself, be described as serious. It is true that the applicant's conduct constituted a breach of the First IMP, as his use of COPS was not directly related to his duties (see [2(1)]). This should have heightened his alertness to give strict adherence to his obligations when using COPS. However, this consideration needs to be seen in the context of the custom and practice as to the use of COPS (where officers routinely access their own CNI). In this light, and the fact that the access was for a lawful purpose, the Commissioner went too far in concluding that this conduct demonstrated a readiness to disregard policy. 351On balance, and in itself, the applicant's conduct in this regard is more in the nature of a misdemeanour. I note little was advanced by the respondent with respect to integrity in relation to this allegation. In any event, I do not consider that the applicant's conduct reflected upon his integrity per se. 352In my view, whilst Allegation 4 was, strictly speaking, made out, I do not consider the applicant's COPS access on 7 June 2011 could not have constituted sufficient ground for removal under s 181D. The additional elements of blameworthiness which the Commissioner attributed to the applicant's conduct were not open to him. Further, the finding that this allegation was established could not, in my view, constitute a proper basis for refusing the application in this matter. The 27 June 2011 COPS Access 353These allegations relate to several inquiries made by the applicant on COPS on 27 June 2011, which were particularised in the Commissioner's statement of reasons. The applicant admitted that this access occurred, the reason for which was recorded as "To update Event E38243736". 354The event in question related to an incident of 'road rage' on 6 September 2009 between the applicant and Mr David Lionel Roberts. Mr Roberts attended Gladesville police station to report the incident on the date of its occurrence. The applicant recorded the details of the incident on a piece of paper, but stated that he did not report it at that time because he misplaced that paper. 355The applicant claimed that, after finding the paper as a result of his move to Five Dock police station, he decided to make a record of the incident on COPS. It was then that he found that it had already been reported as an occurrence. 356Upon reading this event on COPS, the applicant became "annoyed" at perceived inaccuracies in the report made by Mr Roberts. These inaccuracies were particularised in the statement of reasons as follows: You say he: gave the incorrect location of the incident; falsely stated that someone had attempted to gain access to his car; mistakenly stated that someone produced a fake police identification. 357In addition to these three points, the applicant also submitted that Mr Roberts falsely stated in his report that the subject of the complaint appeared intoxicated. 358Sergeant Cullen stated that he reviewed the entry, but declined to verify it because he was concerned about the applicant's involvement in the incident. 359The Commissioner found that these searches were conducted for the applicant's "own means" and "without authority". He stated: It was highly improper for you to access the COPS system in these circumstances and in breach of established policy and guidelines. 360The Commissioner found that the seriousness of the applicant's conduct was "further aggravated" by the warning he placed with regard to Mr Roberts. As to this issue, the Commissioner noted the following: Your assertion that no adverse consequences flowed from your breach of policy is surprising. If your actions had not been uncovered there was real potential for consequences to materialise. In these circumstances I have difficulty in seeing how your integrity as a police officer could be relied upon if you were to perform policing duties in the future. 361The applicant admitted to making alterations to the record of the event (to correct these "inaccuracies"), and to making inquiries into Mr Roberts. 362However, the applicant disputed the statement of reasons to the extent that it noted that this entry in COPS was not brought to his supervisor's attention (and the later implication that his conduct was "uncovered"). 363The applicant contended that he submitted the entry for quality review and subsequent verification by Sergeant Cullen, which is how the Police Force became aware of the changes. Counsel for the applicant queried how it could "possibly be said that Terry [the applicant] didn't bring the entry to the attention of his supervisors when he sent it to Cullen to be verified" (noting that he could have verified it himself). 364I accept, in this respect, the applicant's submissions. By presenting the entry to Sergeant Cullen for review, he sufficiently informed the relevant supervisor under the circumstances. Hence, the applicant's conduct was not "uncovered" as such. It follows that issue 3 must be resolved in favour of the applicant. 365The applicant also disputed the Commissioner's view that he did not enter his details onto the recorded event as the other driver. He contended that the multiple references to himself by name made in the text of the updated narrative amounted to self-identification; although he conceded that he did not add his details to the event as the other driver or identify himself as 'a person of interest' (such that his name could be readily searched). This must, on the evidence, be accepted. 366In my view, the applicant's references to himself effectively identified him as the other driver, as demonstrated by the evidence of Inspector Pryde in respect of this issue. In that respect, I resolve issue 4 in favour of the applicant (that is, as stated in the first sentence of the issue). Allegation 5 367The substance of Allegation 5 was that the applicant accessed COPS without authority, for his own personal interests and not in the interests of the Police Force, and that he conducted extensive and inappropriate inquiries into the confidential information held by the Police Force relating to Mr Roberts. The Commissioner found that this conduct was a contravention of various policing standards, as laid out in his statement of reasons. 368In the Commissioner's 'Consideration', he emphasised that the applicant's conduct was a failure of the duty of a police officer to ensure that access to confidential information occurred only in an official capacity. 369The applicant contested the characterisation of this conduct as being for personal interests, because, having formed the view that the information recorded as to the event was inaccurate, he claimed that he entered the narrative by way of correcting those inaccuracies. 370The applicant emphasised that his use of COPS on this occasion was not for his own personal interests as this incident was not a "live issue", that is, there was no ongoing investigation. He was not seeking to deflect "some torpedo that was coming his way". Counsel noted that: Terry [the applicant] put his own name in there and makes the entry accordingly, but before that he's not named at all, so there's no, with respect, personal justification, trying to clear his name, because he's not named. 371Counsel for the applicant contended that his conduct was, in fact, in the interests of the Police Force. He noted that, as exercising police powers off duty is a legitimate action taken by police officers from time to time, it is unsustainable to maintain that an officer should not make a COPS entry in relation to such an incident, particularly as Inspector Thomas gave evidence that the applicant should have noted the matter on COPS on his next shift (although the respondent contended that this evidence was in relation to a situation whereby an off duty officer had recalled themselves to duty, which was not the case in the present matter). 372The following submission was made for the applicant: Yes, he was off duty at the time but, and I'll concede this, he didn't recall himself for duty. But he did approach a driver who was driving in an erratic and dangerous fashion to tell him to just calm down and not drive so dangerously. He produced his police ID...he wanted to make sure that his version was in there because when you show someone your police badge you are exercising powers as a New South Wales Police Officer. 373The applicant highlighted that, during the course of duty, police officers will often have allegations made against them by members of the public. They will then present their own version of events, which may be directly at odds with what that individual has asserted. It was contended that this inevitably contained an "element of personal interest", yet cannot be considered improper. 374The applicant noted that no steps were taken by the Police Force to determine the veracity of the report made by Mr Roberts. 375The respondent contended, in this respect, as follows: [H]e [the applicant] felt upset at what he had read, wanted to correct the record. That is, correct it for his own purposes. This is not some ongoing investigation. This matter is two years old. Nothing happened on it. Mr Roberts doesn't want anything to happen with it, and that's recorded in the COPS reference itself. 376I accept the respondent's submissions in this respect. Even if, as the applicant contended, this conduct had some minor relationship to policing (which may be doubted), it is clear that a significant component of the conduct was for his own personal interest, for the following reasons: (1)His access to COPS on 27 June 2011 was not work related in that it did not pertain to his duties in the traffic unit, nor to a previous incident occurring whilst he was on duty; (2)His access was, instead, the result of boredom - the applicant stated that he was "looking for things to do"; (3)The applicant began by looking up his partner's registration details, which led to inquiries in regards to the event associated with this vehicle (in which the applicant was a party), personal inquiries into Mr Roberts, and, ultimately, criminal record inquiries into Mr Roberts; (4)The inquiries persisted in this manner because the applicant was aggrieved by the record that he discovered. The applicant admitted that he became "annoyed" after reading the narrative and that this response probably impacted upon his amendment of that narrative (and his consequential decision to enter a warning in relation to Mr Roberts, which is the subject of Allegation 6); and (5)These inquiries were made almost two years after the occurrence, which was not the subject of an ongoing investigation. 377It follows that I accept the Commissioner's reasons at pg 12 of the statement of reasons, which correspond to issue 5. I do not accept the applicant's characterisation of his conduct in issue 5, to the extent it is suggested the applicant altered the record in the interests of the Police Force rather than his own personal interests. I note that no question was raised by the applicant about the Commissioner's finding (arising from Allegation 5) that the applicant had made extensive and inappropriate inquiries into the confidential information held by the Police Force relating to Mr Roberts. 378It was not incumbent upon the Commissioner, as contended by the applicant, to determine the veracity, or otherwise, of Mr Roberts' version of events including an allegation that the person the subject of the complaint was intoxicated. The Commissioner's concern was rightly directed to the improper use of COPS, not that the applicant took issue with the veracity of the report. The issue raised by the applicant in issue 2 cannot, therefore, represent justification for his conduct. 379In fact, rather than legitimising the applicant's conduct, as I understand the applicant was submitting, this contention suggested that the action taken by the applicant was designed to remedy a perceived wrong committed against him in a personal capacity. As the applicant recognised, to some extent, by his acknowledgement that it was improper to complete the COPS entry himself, one purpose of the policy and guidelines governing COPS access was to prevent officers with perceived grievances from using the system to redress them in the manner in which the applicant did. It was always open to the applicant to access appropriate channels to "correct [the] inaccuracies in the narrative". His conduct was, therefore, without authority, regardless of the veracity of either Mr Roberts' or his own versions of the narrative. 380Clause 75 of the Regulation is in the following terms: Confidential Information A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. 381I accept the applicant's submissions in this respect, as, although he improperly accessed confidential information, there was no evidence that the applicant divulged this confidential information to another party. I resolve issue 6 in favour of the applicant. 382However, the Commissioner's characterisation of the applicant's conduct as contrary to the Regulation is, nonetheless, correct, because his conduct conflicted with the terms of cl 8. 383Clause 8 of the Regulation relevantly provides as follows: Performance of Duties by Police Officers Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. 384The Commissioner relied on this clause, in conjunction with s 7 of the Act and various other instruments prescribing policing standards. 385In summary, the applicant admitted that he accessed COPS on 27 June 2011 and conducted inquiries into Mr Roberts at that time; however, he contended that this conduct was not for his own personal interests. This contention cannot be accepted, for the reasons expounded above. Therefore, the applicant engaged in the misconduct described in Allegation 5, which was contrary to the standards of policing outlined therein. 386The Commissioner's reasoning as to this allegation was sound, save for his reliance on cl 75 of the Regulation. 387As noted above, my determination that the applicant brought his conduct to the attention of his supervisor, as well as the fact that he identified himself in the narrative, does not detract from the veracity of the Commissioner's reasons, as these actions do not directly bear upon the allegation (nor do they bear upon Allegation 6). However, the Commissioner's characterisation of the conduct as "uncovered" rather than disclosed raised the prospect that the Commissioner treated these matters as an aggravating factor, which, on a fair assessment, was not available. It is a mitigating factor. 388I will attend to the assessment of the seriousness of the applicant's conduct and the accompanying consideration of the applicant's integrity as to Allegations 5, 6 and 7 after considering the remaining two allegations and some mitigating factors raised by the applicant. Allegation 6 389This allegation related to the placing of an intelligence report on COPS against the profile of Mr Roberts (warning other police officers to be careful in any subsequent dealings with him) "without proper reason or justification". 390The warning stated as follows: Will provide police with false/misleading information. 391The applicant admitted that he had made the entry, but disputed that he lacked proper reason or justification to do so. He did acknowledge, however, that it was improper for him to have made the entry himself. 392As to this issue, the applicant submitted that, given his view of the content of the original narrative as "inaccurate", he had genuine concerns that Mr Roberts could make a false complaint about another police officer. Counsel for the applicant stated: He [the applicant] had nothing to gain from it, nothing to prove by it. He was letting his fellow officers know that this person might make a false complaint against police. 393It was also submitted that there was an earlier entry on COPS, written by another police officer to similar effect: And the applicant's case is, he read a notation of similar effect or of the same effect relating to this person, that is Mr Roberts, the police could easily have produced the evidence to say that there is no such entry by tendering, even confidentially, any COPS records in relation to this person, Roberts, and they didn't do that. 394Counsel emphasised the following: Again, there's no mala fides in this, your Honour. The matter had gone stale. He should have just left it all alone. But he's trying to be a proactive police officer who'd pulled up a driver who was being dangerous, then reads the narrative, sees that there's things in there which he thinks are plainly wrong and, plainly designed to be false information given, and he puts a warning on. 395The applicant submitted, in respect of each of the allegations of improper COPS access, that no adverse consequences arose as a result of his conduct. Specifically, he contended that the warning he entered would merely cause other police officers to be "more cautious" in future interactions with Mr Roberts and would thereby only impact upon him "if he does give false and misleading information". 396The respondent did not accept the applicant's belief that Mr Roberts had inaccurately reported the incident as proper reason or justification for his conduct. Counsel for the respondent stated: This is, in essence, a private matter between the applicant and Mr Roberts. He's putting it in himself. He's not being interviewed by anyone, and his motives for doing it is, in fact, that he's annoyed. He's upset at what he read. This is a serious matter, and a serious abuse of the COPS system. 397As to the seriousness of the applicant's conduct, the respondent contended as follows: The integrity of the COPS system given that it potentially affects all citizens in New South Wales and the proper use of that system is a matter of great importance to the Commissioner, where you have a police officer in essence accessing that system for non legitimate reasons and then making entries about another person, in this case Mr Roberts, with little or no foundation. Where those entries may potentially impact upon matters involving Mr Roberts and members of the NSW Police Force, the Commissioner views those matters most seriously because of the potential impact upon Mr Roberts as a result, not so much of the narrative concerning though that may be but the warning which was placed on Mr Roberts' name. 398The respondent also emphasised that the warning placed by the applicant stated that Mr Roberts "will provide police with false/misleading information", rather than "might" (as the applicant stated orally). 399The respondent submitted that the following factors aggravated the applicant's alleged misconduct: (a)The applicant was "annoyed" by the entry; (b)It was based on "limited material"; (c)It was based on the applicant's own views only; (d)It was based on a belief that the applicant could predict what Mr Roberts' views were; and (e)The warning would be apparent to police when they looked up Mr Roberts on COPS, which would have a potential impact on Mr Roberts. 400I accept the respondent's contention that the warning entered by the applicant on 27 June 2011 was without proper reason or justification for the following reasons: (1)The applicant made the entry in relation to an incident that occurred almost two years prior, while the applicant was off duty and did not recall himself to duty. The incident was not the subject of police investigation (either at the time it occurred or when the applicant made the entry), and there was no suggestion that it would be in the future; (2)The applicant's inquiries into Mr Roberts were for personal reasons and based upon his dispute as to Mr Roberts' statement in that respect. The intelligence report placed against Mr Roberts' profile had, at its source, this motivation. It was an illegitimate use of COPS; and (3)The applicant had an emotional response to the narrative, which originally condemned his conduct during the incident. He admitted during cross-examination that his state of annoyance after reading that narrative may have impacted upon his decision to enter a warning on COPS. That cannot constitute a proper reason for accessing COPS. 401In summary, the applicant's recollection of an incident in which he had been involved in a personal capacity (which was not, nor had ever been, the subject of investigation), enlivened by his emotional response to the expression of a conflicting view, cannot constitute a proper reason or justification for entering such a warning on COPS (particularly in circumstances where there is an admitted conflict of interest). 402The conduct alleged in Allegation 6 is, therefore, established on the evidence. This conduct constituted a breach of various standards of policing, as particularised by the Commissioner in his statement of reasons. I reject, therefore, the applicant's position in relation to issue 7. 403I also accept the respondent's submissions as to the factors aggravating this misconduct, as outlined above (see [399]), particularly with respect to the potential adverse impact upon Mr Roberts. 404The applicant acknowledged that the warning he placed on COPS would be readily accessible to any police officer and was likely to be examined by police in their interactions with Mr Roberts. During cross-examination, the applicant gave the following evidence: Q. The front page specifically refers to a number of matters including whether there are warnings made about that individual? A. That's right but it's not the actual warning you see first. Q. And of course as a police officer, if there was a warning that is something you would look at? A. Yes it is. Q. And in respect to the warning that you put on Mr Roberts file, any police officer that investigated his name would be able to see that warning if they clicked on the warning? A. That's correct. Q. And that is something the police officer would routinely do when looking at a person in COPS? A. That's correct. 405There is no doubt that this warning would thus have consequences for Mr Roberts in any future interactions with police. 406In his affidavit sworn 3 September 2013 (Ex 14), Inspector Pryde stated: The allegations that were made against [the applicant] in relation to his access and use of COPS were extremely serious. Not only had he accessed COPS for a personal purpose, which in and of itself is conduct that would warrant disciplinary action, but he amended an entry for his own personal benefit and had placed an incorrect warning in relation to a third party that would have ramifications for that person. All of this was done without any justification. ... In my view, it became clear to me that during the course of my dealings with [the applicant] that [he] could not appreciate the gravity of his actions and did not agree with the outcomes to the investigation. [The applicant's] inability to appreciate the seriousness of his conduct was, in my view, a large part of the problem. 407Superintendent Smith made statements to the same effect in his affidavit sworn 4 September 2013, as follows: [The applicant's] actions were particularly serious as not only had he accessed COPS for a personal purpose, without a valid reason and without recording his reason for access, but he had amended an entry for his own personal benefit. Furthermore, he had created a false and unwarranted warning in relation to a third party that has the potential to cause significant problems for that person. Such actions are a blatant misuse of COPS and NSWPF information resources. 408It is evident that such serious misuse of COPS diminishes the integrity of the system as a whole, a matter which is of undeniable concern to the Commissioner as outlined by the respondent. 409As to the seriousness of his misconduct, it may be noted that the applicant ultimately admitted the following in cross-examination: Q. No, sir, it doesn't arise if he's lying. It arises each and every time he has a dealing with the police and the police access to the COPS system and see your warning? That is he is not to be trusted right at the very beginning; that's what you are telling police, isn't it, sir? A. Yes, basically yeah. 410However, even in the above exchange, the applicant was reluctant in his acceptance that the warning would have adverse implications for Mr Roberts. He has otherwise consistently failed to appreciate that the warning which he placed on COPS could have had serious implications for Mr Roberts in any future interactions with the Police Force. This is demonstrated in subsequent testimony where the applicant gave the following evidence: Q. Do you think put the warning on the COPS system about Mr Roberts is a serious matter? A. Well, in hindsight now I can see that it is. Q. Why is it a serious matter? A. Because I was involved in the incident; somebody else should have been done it. Q. Is that the only reason why you think it is a serious matter, someone else should have done it? A. Yes. Q. You don't think it is serious because of the impact it may have on Mr Roberts? A. Not if you take the information as being correct in the event. 411I do not consider that the applicant truly understood the gravity of his actions in this respect. 412The Commissioner's reasons as regards Allegation 6 were fundamentally sound. Particularly, I note that, although the Commissioner's use of the term 'uncovered' in his 'Consideration' was incorrect, his conclusion that this misconduct may have had grievous consequences was undoubtedly correct. I will return to the questions of gravity and integrity in one moment. Allegation 7 413The final allegation is with respect to the applicant's failure to "identify and report a conflict of interest" within the circumstances of the 27 June 2011 COPS access. The applicant admitted Allegation 7. Mitigatory Factors as to the COPS Allegations Psychological and Emotional Factors Bearing Upon the COPS Allegations 414Despite the absence of detailed written submissions as to this issue, it appears that some factors of this kind were relied upon by the applicant as mitigation for his conduct in relation to the COPS allegations. 415Central to those exculpatory propositions was the notion that, at the time of the applicant's misconduct, he was depressed, stressed, anxious and frustrated. 416For the sake of completeness I have identified below evidence bearing upon the issue of depression (other than that evidence referred to under my discussion of depression in relation to the SHK allegations) which specifically relates to the COPS allegations. It is as follows : (1)In the interview conducted at Campsie police station between the applicant and Inspector Thomas on 4 August 2011 ('the Campsie interview'), the applicant stated: In hindsight, I can see that it could be seen as inappropriate access .Um, as I said um, and I probably, I don't particularly like being on restricted duties, it's been causing me a lot of stress and anxiety and depression. Um, I'm feeling very, very frustrated with my current situation....I have trouble getting out of bed in the morning and I just had enough. I just feel like it, I'm just ready to crack.. : (2)In the applicant's response he stated: ... I would not have inappropriately accessed COPS when I was not suffering from depression and frustrated about my position in the traffic office with the potential of criminal charges being laid against me and my future in the NSWPF at risk (3)In the applicant's affidavit sworn 19 July 2013 he stated, in reference to his emotions on 27 June 2011, as follows: During the day I was becoming more and more depressed and unstable (4) In the applicant's affidavit sworn 4 October 2011 he stated, as follows: ... when I acted improperly it was due to stress, depression and anxiety. (5)Under cross-examination the applicant stated: ... and that I was having trouble controlling my emotions and my mood swings with my depression and anxiety. And that my commanders were aware I was having bad mood swings and how bad it was because I brought it to [there] attention on a number of occasions. Q. You say brought it to their attention prior to the end of June 2011? A. To which date sorry? Q. End of June 2011? A. Yeah. Also: Q. And then some time later on that day you changed your mind? A. I started thinking about it, I was getting more and more depressed that day, I finished pretty much most of my work that I had to do on COPS by about half past 10, 11 o'clock in the morning. I was working in the office by myself, I was starting to get more depressed and starting to feel uneasy, unsettled. And I started looking for things to do and started stewing in the office because I was working by myself as I said, a small office without any staff around. And that's when I thought oh, that's when I accessed my partner's registration number to see if there was anything connected to it that way because I couldn't remember what the registration number was. And: Q. Did that motivate you in the narrative you prepared? A. It motivated me to go out of character because, as I said, I'd been feeling depressed that day. 417Sergeant Crowther gave evidence as to the applicant's mental state whilst under her supervision. However, she disavowed capacity to give evidence as to depression. 418The only medical evidence as to depression was that to which I referred in relation to the SHK allegations. As the 27 June COPS allegations arose in 2011, my previous conclusions as to SHK are equally applicable here. This is not to dismiss that the applicant felt 'depressed' as he deposed in his evidence, but that there is no medical evidence bearing upon whether the applicant was clinically depressed at the time of the COPS allegations, the severity of any depression or the extent to which depression may have explained his behaviour. 419There remains to consider how mental and emotional stresses may have impacted on the applicant's conduct in June 2011 based on non-medical considerations. 420There is evidence from the applicant and Sergeant Crowther that would sustain the proposition that the applicant was experiencing stress and anxiety at the time. However, the evidence needs to be treated with care. 421First, most of the evidence is connected to the stress of being under what became a lengthy investigation. The applicant's conduct, giving rise to the COPS allegations, occurred at the nascent stage of the investigation into the SHK allegations. The evidence of Detective Sergeant Muir describes the applicant as being in a high state of anxiety to the point of being distraught in March 2012. 422That part of Sergeant Crowther's evidence which touched on this point was, at least in part, in the context of the applicant having been in her office for a year and a half. The applicant's 'loss of perspective' occurred on 27 June 2011 and the investigation into the SHK allegations had commenced in May 2011. Secondly, Sergeant Crowther gave evidence that the applicant continued to fulfil his duties in the traffic office 'well' during the year and a half he was working with her. 423Inspector Thomas' affidavit evidence on this matter was as follows: Following the investigation ... from time to time I would check in on Mr Vouden's welfare. I would also receive updates on the applicant's welfare from Sergeant Crowther .I was informed that the applicant had had periods of ill health and was on and off work over this period of time. 424Inspector Thomas then also deposed that he spoke with the applicant from time to time and, on a number of occasions reassured the applicant that his health was important and that taking sick leave for genuine health concerns would not be detrimental to the outcome of the investigation. 425Leaving aside the two relatively isolated issues, which are the applicant's propositions that he was bored and perceived himself to be in a supervisory role (which he asserts added to his stress), the balance of his evidence was to the effect that what motivated him was that he was annoyed when he read the COPS narrative on 27 June 2011. 426In the Campsie interview, the applicant said: Um, I supposed I was just annoyed when I read the, ah, the narrative .....That I was annoyed that he, um and made false allegations that I tried to open his door and stuff like that 427Under cross-examination the applicant admitted that: Q In fact when you read the narrative prepared at the Gladesville station you became annoyed? A. I said that .... Q. The fact that you were annoyed, did that impact upon you preparing the narrative? A. It probably did. Q. Did it impact upon you preparing the warning? A. It probably did. 428Thus, the applicant's emotional state at the time he accessed the entry on 27 June 2011 was also governed in substantial part, by annoyance (upon reading the entry) and frustration (at being stuck in office duties). 429This is not to suggest that the applicant's feelings of depression, stress and anxiety would not have contributed to these reasons or these motivations. I am prepared to accept that those matters may have clouded his judgment in the sense of him having a less tempered or moderated response when angered. However, as Mr Britt pointed out, a significant motivation in the applicant's actions was anger. To that emotion may be added the applicant's desire to 'set the record straight'. That evidence does not sit entirely well in the mouth of the applicant's proposition that he made the COPS entry and placed a warning against Mr Roberts on the basis that he was "stressed". 430It appears to me that the applicant is entitled to mitigate his conduct vis á vis COPS upon the basis of his feelings of depression, stress and anxiety. However, his conduct is not mitigated based on sentiments of anger or boredom which are essentially connected to the personal endeavour the applicant embarked upon on 27 June. His anger arose from an illegitimate process derived from this personal quest. 431 On balance, the appropriate finding is that the factors in mitigation raised by the applicant regarding his mental and emotional state are diminished but not eliminated by a finding that a substantial motivation for his conduct was anger and frustration. They may, therefore, only play a moderate role in mitigation. 432For completion I note that it is possible the applicant may have been bored and frustrated with being restricted to office duties. However, as the respondent correctly submitted, boredom is no excuse for the applicant's inappropriate COPS access on 27 June 2011. 433As to the proposition that the applicant was not in a fit emotional state to be supervising, this is contrary to Sergeant Crowther's view, referred to earlier, that, despite not enjoying traffic office duties, the applicant performed his duties very well. Therefore, it would seem that his boredom and frustration had minimal impact on any other aspect of his professional duties. 434In his response, the applicant stated that, whilst in the traffic office, he was "supervising" other officers, that he was "in no fit state to do so" and further that this supervisory role was in breach of the First IMP which caused him stress. 435The applicant spent some time presenting evidence on this question, although ultimately no comprehensive submissions were advanced of this kind by counsel for the applicant. In fairness to the applicant, I will briefly consider that evidence. 436The applicant stated that his continued requirement to access the COPS system, when put on traffic office duties, gave rise to two issues. First, he was under stress because he had to 'supervise' other officers and this was in breach of the First IMP. The second was that, if he had not had access to COPS, he would not have inappropriately accessed COPS on 27 June 2011. The former, although not the subject of specific written submission, is relevant to the current consideration of the applicant's mental state on 7 and 27 June 2011. The latter was only indirectly referred to in Mr Nagle's written submissions. 437On 13 May 2011, the applicant signed and returned an acknowledgement of the First IMP. The applicant stated that he was continuing to 'supervise' other officers in June 2011 and that on 22 September 2011, he had a discussion with Commander Smith, in the presence of Sergeant Crowther and Inspector Pryde, in which the applicant said he was still performing supervisory duties in breach of his IMP to which Commander Smith replied that: No. You're not. Look at the roster. You're not performing supervisory roles. 438Inspector Pryde's evidence was that the applicant was reminded again, at that meeting, that he was not to undertake supervisory functions. Under cross-examination, Sergeant Crowther stated that she sought to ensure that the applicant did not supervise any staff whilst on the First IMP. Commander Rodney Smith, under cross-examination, gave evidence that the applicant was only in charge of the process of verifying COPS entries but that the ultimate responsibility for those entries was that of the traffic sergeant. 439Despite the applicant's statement in his affidavit sworn 4 October 2013, that, in or about September 2012, Commander Mark Jones told him that he was working as a supervisor the "whole 17 months since the complaint was made", no evidence from Commander Jones was adduced. 440In any event, and under cross-examination, the applicant agreed that his 'supervisory' role in June 2011 was limited to supervising other officers' COPS entries, and that he and all other policemen had to report to the traffic sergeant. 441Under cross-examination, the applicant also stated: I was continuing to have access to COPS with Senior Supervisor's access performing duties which I believe were breaching my interim management plan and that I was having trouble controlling my emotions and my mood swings with my depression and anxiety. And that my commanders were aware I was having bad mood swings and how bad it was because I brought it to there [sic] attention on a number of occasions. 442Inspector Pryde, under cross-examination, gave evidence that, in October 2011, he was aware the applicant was "under pressure". Inspector Thomas had also stated that, following the completion of the investigation in October 2011, he was informed that the applicant had periods of ill health. 443I do not accept that the applicant's daily traffic office work constituted a 'supervisory role' as that expression is ordinarily understood, or as that concept is understood, in the Police Force. Rather, the applicant had routine administrative duties of processing COPS entries. The supervisor of the traffic area was Sergeant Crowther. 444The applicant's 'frustration' and stress that he was in breach of his First IMP in this manner was ill conceived. Indeed, it is difficult to contemplate how the applicant may have reached that conclusion. Further, the applicant could have raised the general matter of his 'supervisory role' with Sergeant Crowther on any day he was working with her and, in relation to the actual 27 June COPS matter, upon her return to the office, but instead elected to allow self-interest and emotion to dictate his conduct. Conclusion - Psychological and Emotional Factors 445There is no medical evidence that the applicant was suffering from clinical depression in June 2011. The suggestion by the applicant that Sergeant Crowther could support his proposition (that he was clinically depressed) was, as referred to earlier, disavowed by Sergeant Crowther under cross-examination. Her view that the applicant was depressed was merely a personal view formulated in the absence of medical certificates and/or expertise. The evidence of Sergeant Crowther that the applicant suffered from migraines due to stress caused by the ongoing investigation to the extent she sent him home from work on two occasions was pertinent to March 2012, not the time of the COPS allegations. 446The evidence from Detective Sergeant Muir was merely a personal, and non-medical, opinion that the applicant had, in effect, a nervous breakdown was, in any event, limited to his observations in 2012. There was no evidence presented other than from the applicant as to how his stress or anxiety may have affected his conduct at the time. 447I have earlier made findings as to the extent to which, on balance, emotional or stress factors may be taken into account as factors in mitigation. That is, these factors only constitute a moderate basis for mitigation. I have also made findings rejecting the applicant's complaint that he was placed in a supervisory role in the traffic office. The notion that it was the responsibility of Command to remove the applicant from office duties in order to prevent him from 'self-harming' cannot be accepted. The applicant, as a police officer, was well aware of his responsibilities in relation to COPS access. The applicant even had the benefit of a recent reminder as to those guidelines through the implementation of the First IMP. Hence, I cannot accept the applicant's view that his processing of COPS entries, which were to be ultimately verified by the traffic sergeant, was a matter which contributed to his misconduct. Commissioner's Reasons re Integrity - COPS Allegations 448The Commissioner predicated his adverse findings as to the integrity of the applicant upon the basis of Allegations 5 and 6 and, in particular, the inquiries made by the applicant into 'confidential information' concerning Mr Roberts and the placement of an intelligence report on the COPS system against that person's profile. 449Those findings are reflected in the following passage from the Commissioner's reasons: You conducted detailed searches into the information held on a member of the public without authority. As an organisation we are entrusted to hold confidential information and have a duty to ensure it is only used as part of our official duties. You have failed in this regard. The seriousness of this situation is further aggravated in that you placed a warning against a member of the public without appropriate reason or justification. Your assertion that no adverse consequences flowed from your breach of policy is surprising. If your actions had not been uncovered there was real potential for consequences to materialise. In these circumstances I have difficulty in seeing how your integrity as a police officer could be relied upon if you were to perform policing duties in the future. 450In a cumulative sense, the Commissioner concluded: I cannot agree with your view that you have not grossly offended against proper standards of integrity and that you merely showed an error of judgment by failing to comply with policy and procedure while angry, bored and depressed. The Applicant's Integrity re COPS Allegations 451The applicant made a similar submission as to the SHK allegations with respect to these allegations in submitting that there was no mal fides in the applicant's conduct. It was submitted that if there was an error of judgment, it is a 'fine' one based upon an acceptance by the applicant that someone else should have completed the narrative. The applicant stated that he was attempting to be a proactive police officer and just doing his job. He had pulled up a driver who was being dangerous and then adjusted an incorrect narrative and added a warning, both undertaken in the open. Further, Sergeant Crowther and Detective Sergeant Muir did not have concerns as to the applicant's integrity. 452Mr Nagle submitted: The COPS entry; if he had another officer just type in the narrative and then verify it, there wouldn't have been an issue, but he types in the narrative himself and then sends it to the quality review. That is just stupid and Mr Vouden will say that in the witness box. He did the wrong things; he was not thinking. But, in my submission, it doesn't go to the characterisation the Commissioner gives it. If it did, then surely Mr Vouden would have taken greater steps to try and distance himself from the narrative and make it look more like someone else's work, rather than his own. But he had nothing to gain from it. He was just trying to make sure that the record was correct and had correctly recorded his version of events. He should not have done it himself and he admits that. That is the applicant's case in a nutshell. 453In summary, the applicant submitted re Allegations 4, 5 ,6 and 7 as follows: (a)The applicant had exercised police powers whilst off duty in September 2009; (b)The applicant named himself as the other driver in relation to the COPS event when he added to the narrative on 27 June 2011; (c)The applicant could have verified the updated narrative himself; (d)The applicant forwarded the updated narrative to his supervisor that day, Sergeant Cullen, for him to verify; and (e)The updated COPS narrative came to the attention of the New South Wales Police Force and the Commissioner because the applicant made the entry and forwarded it to Sergeant Cullen. That is to say, it was not independently discovered by an audit or other check. The applicant was the person who brought it to the attention of the Commissioner through his own actions. 454Mr Britt submitted that: The integrity of the COPS system given that it potentially affects all citizens in New South Wales and the proper use of that system is a matter of great importance to the Commissioner. 455In this respect, it was contended the applicant's conduct in this case is of great importance because he: (1)Accessed the system for non-legitimate reasons; (2)Made entries about another person, in this case Mr Roberts, with little or no foundation; and (3)Knew that those entries may potentially impact upon matters involving Mr Roberts and members of the Police Force. 456Counsel for the respondent made the following submissions: These are very serious matters. They go to the conduct of the applicant. They also go to the integrity of the applicant, and nothing is put by way of mitigation by the applicant that truly explains the conduct, that is. they're serious matters There's a genuine lack of insight by the applicant, and the applicant's personal circumstances are not such that you should disturb the decision of the Commissioner. 457As to the applicant lacking insight into his misconduct, the respondent submitted that there was a lack of insight on the part of the applicant as to "the impact his entry may have on Mr Roberts and a failure to appreciate the seriousness of his conduct" and that, generally, "he has sought to down play the seriousness of the conduct and has asserted that his breaches are somehow technical or trivial". 458Further, the respondent submitted that the issue was not whether Sergeant Crowther or Detective Sergeant Muir had concerns about the applicant but whether the Commissioner rightly held concerns. Sergeant Crowther realised the allegations against the applicant were serious, that the applicant had disobeyed his obligations regarding the use of COPS and that he had made some "dumb" decisions. Detective Sergeant Muir was also of the view that the applicant had committed serious errors. 459It was submitted that the applicant only accessed the COPS records because he was bored and "looking for things to do" and he was "stewing" in the office. At the time, the applicant was annoyed by the narrative in the report made by Mr Roberts and, in the result, the entry of an intelligence report was written in anger. 460Finally, the respondent submitted that, although the applicant did not hide his use of COPS, he was untruthful during the investigation. The respondent cited, by way of example, that the applicant had: (a)Told police that Mr Roberts said he had a fake ID; (b)Had the note he had written at the time he prepared his narrative; (c)Failed to mention obtaining information about other entries regarding Mr Roberts; (d)In his s 181D response he alleged he was not acting in self-interest because he did not access the system in earlier circumstances and the prompt to access the system was the late discovery of his note on 27 June 2011; and (e)Gave untruthful evidence that he obtained the warning from another narrative involving Mr Roberts and cutting and pasting. 461The overall submission advanced by the respondent as to those parts of Allegations 5, 6 and 7 were as follows: There are three matters, albeit conceding that one of them is less serious, and significantly less serious than the first three and the last three. These are very serious matters. They go to the conduct of the applicant. They also go to the integrity of the applicant, and nothing is put by way of mitigation by the applicant that truly explains the conduct. that is, they're serious matters. There's a genuine lack of insight by the applicant, and the applicant's personal circumstances are not such that you should disturb the decision of the Commissioner. 462Given my earlier findings, it is not necessary to determine whether the applicant was "untruthful during the investigation" (as was contended by the respondent in written submissions). It is, however, appropriate to mention that the applicant's evidence as to having found his record of the road rage incident shortly before preparing the narrative and issuing the warning was less than convincing. 463Additionally, the applicant's evidence in his affidavit of 19 July 2013 that he "copied and pasted" the entry from an existing COPS event which he had not authored was abandoned under cross-examination, as follows: Q. And then you said I had taken entry already on the system and replicated it with respect to the entry the subject matter of the complaint. That's not true is it sir? A. Not replicated but I took another complaint, it was a misinterpretation of the word there, should have a different word, but there was another reference that was already on the system I used that. Q. The other reference was about something entirely different wasn't it sir? A. Yes. Q. It is not a question of cut and paste, it is not a question of replication? A. That's correct. ... Q. ... you say in answer to this allegation I state that I obtained a narrative regarding the warning relating to Mr Roberts from another COPS entry, you can see that's incorrect? A. Well, we discussed that issue before. There was a warning on him, not of the exact same context but of another nature and I took that into forming my view. Q. That's not what you said sir, is it? A. I'm sorry I didn't articulate it as best I could in that sentence. Q. The next sentence you said I subsequently copied and pasted the entry from a COPS event. That is also not true? A. I have used the wrong term, that's correct. Q. And it's not true? A. That's right. 464The respondent also noted the applicant did not contend that he obtained the warning relating to Mr Roberts from an existing COPS entry authored by another police officer when initially interviewed, nor did he raise an existing entry in his response to the notice. The following exchange occurred during cross-examination: Q. You made no reference in your answer on page 21 to you cut and paste or even seeing another report on Mr Roberts forming a basis of your view? A. Not at that stage, no. Q. Something else you have come to after this interview, is it, sir? A. Well, when you have time to look at all the information you go over things and you can analyse things more clearly and sometimes things come back to your memory which you've overlooked. Q. Is your short answer: Yes? A. Yeah. Q. Something you did not remember at the time of the interview? A. Apparently not. Q. Notwithstanding the interview was relatively soon after the event? A. That's correct. 465The evidence did not disclose whether there was an existing entry of a similar character on COPS from which the applicant may have derived the warning that he placed. In any event, the existence of such an entry is of no consequence, since it could not constitute "proper reason or justification" for the applicant's conduct in placing what he contended was a similar warning. Conclusions as to Seriousness of Conduct and Integrity re COPS 466The Commissioner submitted that the integrity of COPS was a significant matter for the community and, hence, it was a matter of great importance that access to the system by police officers was only for approved and proper reasons. 467That submission was compelling given the nature and significance of COPS and the implications of its misuse for the community. It was also in conformity with the jurisprudence of the Commission in s 181D matters. 468I note, in this respect, the decision of Marks J in Morgan v Commissioner of Police [2009] NSWIRComm 184 (to which leave to appeal was refused by the Full Bench in Morgan v Commissioner of Police [2009] NSWIRComm 67), where his Honour observed as follows: 101 Before dealing with these grounds, it is necessary to make some brief reference to the COPS computerised database system operated by the New South Wales Police Service as disclosed in the evidence given in these proceedings. The database contains a great deal of personal, confidential and sensitive information about individuals and about incidents that relate to matters that are connected to the work of the police service. Access to the COPS system is restricted to police officers and others who have a lawful reason to do so. That, in general terms, confines access to matters involving investigations and enquiries being conducted by police officers for the purpose of their work. There was abundant evidence given in the proceedings to the effect that police officers are required to limit access to the COPS system to circumstances which are properly and appropriately related to work being undertaken by them. Indeed, this was acknowledged by the applicant. Furthermore, the police service monitors access to the system made by officers and conducts audits of that access. ... 201 The unauthorised access to COPS on these two occasions and the untruthfulness during the interviews with Inspector Nicholson call into question the integrity of the applicant. The question of integrity is specifically referred to in s 181F(3)(b) of the Act. This requires that in considering my decision in these proceedings I "must have regard to" the public interest which is taken to include "the interest of maintaining the integrity of the NSW Police Force ...." Of course, I am also required to take into account the other matters referred to in s 181F(3) and to strike a balance by having regard, as required, to each of them. 469The accessing by a police officer of confidential information contained within COPS which was unauthorised and without any reasonable or lawful excuse constitutes a breach of the position of responsibility and trust occupied by a police officer. As noted in the decision of the Full Bench in Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 at [33] (summarising the decision of Backman J in Johnston v Commissioner of Police [2007] NSWIRComm 73), such conduct may constitute a breach of "the most serious category", although plainly the circumstances of the breach will influence findings as to the gravity of any misconduct. 470The access by the applicant to COPS was not authorised. Nor, for reasons provided above, was there a proper basis or reasonable explanation for that action by the applicant. Accessing COPS for his personal interest or in consequence of his annoyance as a result of what he had accessed, elevates, rather than diminishes or excuses, the seriousness of his conduct. The extensive inquiries into Mr Roberts' personal circumstances also contribute to the gravity of his conduct. 471However, and putting aside mitigating factors for one moment, the applicant's placing of an intelligence report against Mr Roberts falls into a much higher category of seriousness. The notion that a police officer, having a grievance or annoyance with a member of the community or a sense of righteous indignation as to what that person has reported to police, may access confidential information which he then employed by placing a report against that person in COPS, with its attendant adverse consequences, is a flagrant breach of an officer's position of responsibility and trust and raises public interest questions under s 181F(3)(b). It is a matter about which, in the case of the applicant, the Commissioner was right to be very concerned. As Superintendent Small stated in evidence, the applicant's conduct was a "blatant misuse of COPS". 472The applicant was not deceitful or devious (because he identified himself as the author of the report and submitted his entry for review), but the intelligence report entry carried the risk that the report may not have been detected and that obvious attendant adverse consequences would have flowed to Mr Roberts, without any proper cause. Members of our community should not be exposed to such risks. 473I have closely considered the mitigating factors raised by the applicant with respect to the 27 June COPS access. I consider that allowance should be made for the applicant's mental and emotional states. However, those factors are diminished when the motivation for the applicant's conduct is anger or annoyance. In my view, a significant contributor to the applicant's entering of the intelligence report (as described in Allegation 6) was anger and a sense of conviction to set the record straight rather than the factors of distress, although it is not possible to exclude some contribution of factors (such as feelings of depression or distress) and I have made allowance for the same. 474Even after allowance is made for mitigating factors, I consider the applicant's access to COPS on 27 June as specified in Allegations 5,6 and 7 to be overall very serious. 475Further, the applicant's act of entering an intelligence report on COPS concerning Mr Roberts warrants an adverse conclusion as to his integrity as it reflects poorly upon his character. It is one thing to undertake unauthorised inquiries, even constituting a serious breach of policy, it is yet another to instigate a process, in the exercise of an abuse of position of trust, resulting in a member of the community being faced with the potential consequences of such conduct. The applicant allowed a grievance as to a matter affecting his personal interest to significantly override his duties as a police officer vis á vis COPS in circumstances which have every potential to harm a member of the community. That the applicant lacked insight into the seriousness of that matter, both at the time of the conduct and subsequently, further reflects on his integrity and raises the question posed by the Commissioner as to whether the integrity of the applicant could be relied upon to perform policing duties. Overarching Conclusion on the Seriousness of the Applicant's Misconduct 476I have found that each allegation was sustained on the evidence before the Commission (although Allegation 4 does not, in my view, constitute a proper basis for refusing the application in this matter). When reviewing the conduct of the applicant across the entirety of those allegations, and the totality of the circumstances discussed above, even with due allowance for those findings which are exculpatory or mitigate, to some extent, his actions, I have formed the view that the applicant's misconduct represents a serious breach of his obligations and duties as a police officer. 477The applicant's conduct was not only contrary to what may reasonably be expected of a police officer, but fell well below the expectations of an officer of his relatively senior rank and service. In this respect, the Commissioner took into account the expectation that an officer with such seniority would "lead by example and be a role model for junior officers". The fact that the applicant held a senior rank is, in my view, a factor which adds to the seriousness of the misconduct. I agree with the Commissioner's reasons in that respect. Further, this factor serves to demonstrate that there were elements of incompatibility between the applicant's conduct and his duties: Lawrance (No 1) at [296]. 478The findings that I have made regarding the applicant's integrity, which are in conformity with the Commissioner's reasons in that respect, compound the overall seriousness of his behaviour, but are particularly relevant to considerations of public interest, which I will address later in this judgment. Consideration 479In this review the applicant has, as earlier mentioned, challenged the Commissioner's order to remove him as a police officer from the Police Force upon the basis that the removal was harsh, unreasonable and unjust. The first of these grounds received primary attention. I shall consider overall whether the removal of the applicant was harsh, unreasonable or unjust within the context of the aforementioned findings as to conduct and the integrity of the applicant. Principles 480Even though Lawrance (No1) concerned an application for review grounded solely on the basis that the removal was harsh, that decision nonetheless stated the relevant principles governing the adjudication of applications in the present matter (relying on tripartite factors). The relevant paragraphs from the decision are set out below: 19 The task of the Commission in undertaking a review under s 181E (1) is now well established as being constituted by the Commission making "a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted": Hosemans v Commissioner of Police (No 2) (2005) 138 IR 159 at [134] ('Hosemans No 2'). As earlier noted, Div 1C of Pt 9 requires the Commission, in the review, to consider whether the removal of the applicant police officer is "harsh, unreasonable or unjust". As noted in Collins at [61], the removal of a police officer may be either harsh, unreasonable or unjust "or a combination of all three". 20 In this case, the confinement of the grounds for review by the applicant require only a determination as to whether the removal was harsh; a process that involves mixed issues of fact and law: Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325 at [4]; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 at [82]; Dobbie at [18] and [40], Johnston at [25] and Evans at [1]. 21 Distinguishing between what may be harsh, unreasonable or unjust may be sometimes elusive or involve a degree of circularity, but it is necessary for the Commission to state explicitly the basis upon which it makes a determination in a review undertaken under s 181E (1): Collins at [61] and see Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. Thus, the Commission must state explicitly which, if any, of the grounds pursued by the applicant under s 181E(1) are found to be made out. (In this case there is a single ground.) 22 The High Court of Australia discussed the distinction between the concepts of harsh, unreasonable or unjust in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ stated (in the context of an award provision): ... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 23 The fundamental exposition of principle as to what may constitute 'harshness' in the removal of a police officer for the purposes of s 181E (1) is found in the decision of Watson J (made in the context of an unfair dismissal claim) in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233. In Little No 2 (at [70]) the Full Bench stated, in this respect, as follows: In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (See also Department of Health v Kaplan [2010] NSWIRComm 65 at [29] ('Kaplan').) 24 The concepts of the 'severity' of the dismissal and 'too harsh a consequence' in Metropolitan Meat Industry Board naturally bring with them the notion that the assessment of harshness involves, in part, an evaluation of the gravity of any misconduct giving rise to the removal: Collins at [37] and Brennan at [70]. Thus, the question of proportionality arises (see Byrne at 465 and 467, Evans at [7] and Kaplan at [28]). Further, in the case of an application based on harshness, the Commission must take into account whether there were any mitigating circumstances (see Little No 2 at [70] and [71]). 25. Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F (3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36]). Was the Removal Unreasonable and Unjust? The Parties' Cases 481The applicant's submissions, in this respect, were intertwined with submissions as to harshness, and not the subject of detailed explanation. In order to summarise the contentions made, in this respect, it has been, therefore, necessary to take a fairly broad sweep over the contentions generally put in the proceedings (even at the risk of repetition of some submissions earlier referred to, and, in some cases, resolved, in the context of particular allegations). 482In summary, it was submitted by the applicant that the removal was unreasonable and unjust on both substantive and procedural grounds as follows: (1)The Commissioner failed to give adequate weight to the applicant's previous good work history which demonstrates he is an asset to the force (I note the applicant also submitted this was relevant to harshness); (2)The Commissioner erred in not having regard to the admissions and concessions made by the applicant as to his conduct. The particular relevance to the ground of unreasonableness was not made clear (his submission was also made in relation to harshness) ; (3)The Commissioner gave no weight to the fact that the applicant did not attempt to hide his conduct with respect to the COPS allegations. (I note the applicant also submitted this was relevant to harshness.); (4)The applicant disclosed all matters relevant to the SHK allegations as soon as he realised the gravity of the offences on 30 April 2011 and this led to SHK being arrested. (Although the applicant did not identify to which grounds this was referrable, it would appear to be directed to the grounds of harshness and unreasonableness.); (5)The Commissioner failed to give any or adequate weight to the applicant's psychological state on 28 April 2011 (unreasonable); (6)The processes preceding the issuing of the order and the Commissioner's reasons were procedurally unfair. In addition to the earlier issues of procedural unfairness discussed in this decision, the applicant raised the manner and duration of the investigation (7)In particular, Inspector Thomas' investigation into the SHK allegations was not objective because: (a)He did not interview Leading Senior Constable Voetrell; and (b)The Legal Advice in Ex 13 was omitted from Inspector Thomas' report. (8)Further Inspector Thomas' investigation into the COPS allegations was not objective because: (a)He did not contact the GIPA unit; (b)He was willing to resile from the reasons set out in his report as to the IMP breaches; (c)He did not speak with Mr Roberts; and (d)His evidence that the applicant should have noted the matter on COPS on his next shift was inconsistent with what he said in his report. (9)The Commissioner's findings as to integrity were in error (this was relevant to the question of whether the Commissioner's decision was unjust and unreasonable). The applicant disputed the following conclusions reached by the Commissioner in the following respects: (a)With respect to the GIPA incident, the applicant showed a readiness to disregard policy; (b)The applicant did not exercise police powers whilst off duty in 2009; (c)The applicant had not identified himself in the COPS narrative; (d)The applicant had not sent the narrative to Sergeant Cullen for review; (e)In relation to the SHK incident, the applicant lacked impartiality and had not dealt with the situation objectively; and (f)The applicant was disingenuous in relation to the applicant's contact with SHK. (10)The Commissioner failed to have sufficient regard to the following matters (relevant to the question of whether the Commissioner's decision was unjust and unreasonable): (a)The psychological state of the applicant which affected the question of integrity; and (b)The Legal Advice (Ex 13) which reflected positively on the applicant's character and this therefore, raised questions about the accuracy of the Commissioner's findings as to the applicant's integrity. 483The respondent submitted that: (a)This case was ultimately about harshness and the applicant's submissions as to unreasonableness appeared to be limited to Allegations 5 and 6; (b)The decision to dismiss the applicant could not be unjust because the applicant was guilty of the misconduct on which the Commissioner acted; (c)The decision to remove the applicant was not "unreasonable" because the Commissioner did not decide to remove the applicant upon inferences which could not reasonably have been drawn from the material before the Commissioner as: (i)There was no medical evidence that the applicant was depressed even though the applicant may have been distressed; (ii)The applicant recognised that his COPS conduct was inappropriate and he acted for personal reasons; and (iii)The applicant's conduct as to the COPS allegations was in breach of his First IMP and Allegation 5 was aggravated by the circumstances surrounding the entry of the warning. Clearly Mr Britt was referring to Allegation 6. (d)Inspector Thomas' omission to refer to Senior Constable Heery's opinion was irrelevant. Further, a Jones v Dunkel inference should be drawn in relation to the evidence of Leading Senior Constable Voetrell; (e)In relation to the SHK allegations: (i)The admissions made by the applicant (as set out in the marked up statement of reasons) were sufficient for the Commissioner to form the view he had lost confidence in the applicant; (ii)The applicant was inconsistent as to his understanding as to the English note; and (iii)The applicant only disclosed all the matters to Detective Senior Constable Little on the evening of 30 April 2011 after the inappropriate meeting with SHK. (f)The applicant did have an improper association with SHK and it is of further concern that the applicant now says he failed to follow procedures correctly because SHK was Korean; (g)In relation to the COPS allegations, they involved a breach of confidentiality which must be taken very seriously in light of the warning given under the first IMP. Further, although the applicant did not hide his use of COPS he was untruthful during the investigation; (h)The seven allegations, as established, amount to misconduct and provide a prima facie case for the decision of the Commissioner to terminate the applicant; and (i)The Commissioner did consider the applicant's conduct and integrity and formed the view that these could not be described as simply errors of judgment. They are not technical breaches and the public interest requires the Commissioner's decision to remove the applicant should remain. 484The subject matter of these contentions plainly overlaps with my earlier discussion of findings in relation to the SHK and COPS allegations with respect to conduct and integrity. I will not generally repeat those findings here but note they form the foundation for my conclusions. My discussion here will be directed to an overall consideration as to these grounds in the light of those earlier findings. 485I will commence with a consideration of procedural fairness issues. Procedural Unfairness Principle 486It is worth restating the principles applicable to this issue. 487I refer, in this respect, to the following passage from the decision of the majority in Reid-Frost at [9] ...The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least ''a careful and punctilious regard to correct procedure'', and are of significant importance to the review of a decision made under s 181D of the Police Service Act. In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows (at pars 193 to 200): ... 194 What may be further deduced from the decisions in Bigg (No 2) and Oswald (No 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion. Following the principles stated by Kitto J in R v Anderson; Ex p Ipec-Air Pty Ltd, the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No 2) and Oswald (No 2), also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was 'uninformed' (Oswald (No 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 488However, the above observations as to procedural fairness made by the Commission should be understood with reference to the statutory context (see Reid-Frost at [11]). In particular, I note that the determination of an application made under s 181E requires a finding as to whether the removal itself was harsh, unreasonable or unjust, rather than a determination as to whether a particular procedure may be described as such (even though the adoption of an unfair procedure, as has been observed, may contribute to that ultimate determination) (see, for example, Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ). 489As such, "[i]t follows that procedural failures will not of themselves necessarily (or often) result in an affirmative finding for an applicant under s 181E of the application": Reid-Frost at [11] (see Bigg v Police Service (NSW) (1998) 80 IR 434 ('Bigg') at 460, Starr at 140). 490In Starr v Commissioner of Police [2001] NSWIRComm 226 it was reiterated that: The approach adopted in Van Huisstede was particular to that case and was not intended to indicate a general approach to deciding matters of this nature. As was pointed out in Van Huisstede, not every fault in the procedure adopted by the Commissioner will require the Commission's intervention. Each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case. I consider that there are features of this case which demand a full examination of the evidence relating to the conduct of the applicant which was relied upon by the Commissioner in removing him from the Police Service, although the deficiencies in the process adopted by the Commissioner will be relevant to the ultimate conclusion as to whether the removal was harsh, unreasonable or unjust. Procedural Questions concerning the Failure to Interview Senior Constable Voetrell and Exhibit 13 491The procedural defects in the Commissioner's reasons are plainly relevant to a consideration as to whether the removal of the applicant was harsh, unreasonable or unjust. However, even though the Commissioner's reasons derived from procedures which had been found to be unfair, the defects, when considered in the light of the evidence in the proceedings, do not, in and of themselves, constitute a proper basis to find the removal was unreasonable or unjust. The nature and character of the defects, when analysed in the context of the submissions and evidence in the proceedings, are such as to significantly diminish the potency of these matters as factors which may warrant a finding that the removal was harsh, unjust or unreasonable. My reasons for that conclusion are threefold, as follows: (1)The potential evidence from Leading Senior Constable Voetrell concerned the SHK allegations. It could never have gone to a critical period bearing upon the seriousness of the applicant's conduct with respect to the SHK allegations, namely, 29 and 30 April, as there was no evidence that Leading Senior Constable Voetrell and the applicant had any interaction during that period. Further, in the absence of medical evidence, it is difficult to envisage how this evidence could provide any further insight in to the applicant's state of mind and physical and emotional states than the evidence provided by the applicant himself which is accepted by the Commission; (2)In the case of Ex 13, even though the opinion was omitted from the Commissioner's consideration, the Commissioner was aware of the answer to the question which had been referred to the Legal Advice Unit. Further, the opinion was based upon premises which, with the benefit of the evidence in this review, were inconsistent and in one respect wrong; and (3)The evidence in these proceedings does not permit an acceptance of the opinion that the applicant assisted the course of justice in the unqualified manner expressed by Senior Constable Heery. Procedural Questions as to Manner and Duration of the Investigation 492There is a third procedural issue. The applicant raised concerns as to the manner and duration of the investigation. 493The applicant stated the following in his written submissions: The applicant relies upon the manner in which the investigation was undertaken and the duration of the decision making process as one facet of the harsh and unjust manner in which his termination was effected. The applicant was scrutinised for 18 months of active duty before finally being suspended. It is worth noting that the suspension occurred over a year (Sept 12) after the last allegation of misconduct was raised (27 June 2011). 494As to this issue, the applicant reiterated the following testimony of Sergeant Crowther in his written submissions: Q. Thank you. You said that during the time that Terry was in the traffic office he would from time to time appear stressed or would it be fair to say at times appeared to be stressed about the situation? A. Yes he was fed up, it was the time it took to investigate and finalise the matter. I was sort of experienced with stress because of myself, because I believed it myself it was taking way too long to investigate and finalise and leaving him hanging. It was the rest of his life hanging and he needed to know one way or the other what his future held and plus being stuck in the office with me more than a year and a half. He was very stressed and in different areas it was taking a toll on his health, not just migraines, he was just fed up with everything because he didn't know what his future held. 495The applicant also extracted the statements of Detective Sergeant Muir "in relation to the applicant's mental state owing to the duration of the investigation", which have been addressed above. 496The respondent contended, as follows: ... there were a number of reasons for delay including the applicant's initial refusal to be interviewed about the SHK complaints (Ex 12 GT3), the fact that the interview did not proceed until 2 November 2011 (Ex 12 GT 4) and the fact that the applicant was absent from work due to illness (Ex 12 at [67]). The Commission under the Police Act is concerned with the dismissal not with the investigation process in these proceedings. 497Under cross-examination, Commander Smith gave evidence that "most of the delays" were due to sending the matter out for the Legal Advice. 498Inspector Pryde's evidence was that the delay arose due to a number of reasons. Those reasons included sending the matter out for legal advice, (over which he stated he had no control), "access" to the applicant because had taken periods of sick leave, periods of leave from Inspector Thomas and other operational commitments. Inspector Pryde also noted that he had spoken with the applicant during the investigation about the applicant's concern as to the length of time the investigation was taking. 499The Legal Advice was received from Senior Constable Heery in September 2011. The report of Inspector Thomas in relation to the SHK allegations was finalised on 23 December 2011 and certified by Inspector Pryde on 2 February 2012. Under cross-examination Inspector Pryde admitted that the investigation ran two months over (the required 90 day time period for investigations), even if the starting point was taken from when the Legal Advice was obtained. 500Whilst I accept that the investigation was delayed, in part, by the involvement of an external agency, the evidence of Inspector Pryde conceded that the investigation nevertheless took longer than may be considered ideal. I have no difficulty accepting, as demonstrated by the evidence of Sergeant Crowther and Detective Sergeant Muir, that this delay would have had an adverse impact on the applicant. 501However, I do not consider the delay occasioned by the applicant in this matter should attract a finding that removal was unreasonable or harsh (it may be noted the ground of delay would not normally attract consideration under the ground 'unjust'). The reasons for this conclusion are as follows. (1)Having regard to the factors contributing to the delay, it could not be described as inordinate (Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [224(2)]; compare Owens v NSW Police Service (1998) 87 IR 1 at 9). The delay was contributed to by the question of whether criminal proceedings would be brought against the applicant; (2)No suggestion was made that the delay occasioned any difficulties with the evidence brought in the proceedings (such as lapsed memories) and none was apparent; (3)Whilst any hardship caused to the applicant is regrettable, and should be considered, it did not contribute to his conduct in relation to the allegations; (4)The applicant could not have thought that the disciplinary case had ended (see Burrows at [224(2)]); and (5)The question as to whether procedural factors such as this one may warrant a finding that the removal was harsh and unreasonable must depend upon an overall assessment of such factors when weighed against a finding as to the nature and severity of the misconduct and public interest questions. Given the findings I have made in this case as to the seriousness of the applicant's misconduct, I do not consider a finding of delay in the circumstances here under review could properly constitute a basis to find the removal was unreasonable or harsh. 502I have earlier dealt with the manner of Inspector Thomas' investigation in the context of Ex 13 and Leading Senior Constable Voetrell's evidence. There remains, for my consideration the balance of the matters referred to in [482(8)]. 503As to Inspector Thomas' failure to contact the GIPA unit, I refer to my earlier finding that, as the Commissioner was aware of the GIPA application, Inspector Thomas' erroneous understanding is irrelevant. 504As to the submission that Inspector Thomas was willing to resile from the reasons set out in his report as to the IMP breaches, I adopt the submission of the respondent that Inspector Thomas was always cognisant of the First IMP when considering the applicant's conduct. 505The submission that Inspector Thomas did not speak with Mr Roberts is irrelevant (as discussed earlier in a similar context) as the allegations concern the applicant's conduct in respect of Mr Roberts and his accessing of the COPS system in that respect. 506The applicant's submission that Inspector Thomas' evidence in these proceedings that the applicant should have noted the matter on COPS on his next shift was inconsistent with what he said in his report. I do not agree. Inspector Thomas' evidence was given in relation to an officer being recalled to duty. The applicant did not recall himself to duty in September 2009. 507I have earlier discussed the contentions of the applicant as to the Commissioner's findings that the applicant was disingenuous and as to the nature of the improper association and adopt my observations and findings here. Conclusions as to Procedural Fairness 508Whilst the applicant has demonstrated that, in two respects, the Commissioner's decision to remove him was affected by procedural unfairness, when considered in the light of the foregoing discussion, those factors could not constitute a basis upon which the Commission could, upon the basis of those factors alone, determine that the removal was unreasonable or harsh (the issue would seem to have little relationship to the ground 'unjust'). 509That conclusion does not prevent the applicant's case as to procedural unfairness being weighed in as part of the overall merits of the applicant's contention that his removal was harsh, unjust or unreasonable (see Lawrance (No 1) at [287]). However, as I will discuss below, that weighing process must necessarily accommodate the conclusions already reached by the Commission as to the seriousness of the applicant's conduct with respect to the allegations (save as to Allegation 4) and his demonstrated lack of integrity in certain respects. Conclusions as to Whether Removal Unjust and Unreasonable 510Upon the findings made in this review, there can be no proper basis, in my view, to find the removal of the applicant was unjust or unreasonable. 511The Commissioner's findings as to the allegations were sustained in this review. I have rejected some particular conclusions reached by the Commissioner based on the evidence in these proceedings. However, those matters were incidental to the Commissioner's principal reasons as to misconduct or integrity which, in my view, remain, in substance, undisturbed. 512Ultimately, the applicant was guilty of the matters alleged against him (including in relation to Allegation 4) and he has been found to have engaged in serious misconduct in his service as a police officer, even after allowance for factors mitigating the conduct or which are exculpatory in nature. Adverse findings have been reached as to his integrity. The issues of procedural unfairness bear upon the question as to whether the removal of the applicant was unjust or unreasonable, but cannot support a finding that the removal was unreasonable or unjust when considered in the light of the seriousness of these findings of misconduct and their relative impotency (for reasons given earlier). Similar conclusions may be reached with respect to the question of harshness to which I will now turn. Was the Removal Harsh? 513Counsel for the applicant advanced a substantial case on harshness. It will be convenient to consider each of the grounds associated with that contention (and submissions made by the parties) in a compendious way where each of the applicant's contentions are considered in the light of the relevant principles, the evidence bearing on the question and the respondent's response. The groupings of the submissions follow the structure of analysis in Lawrance (No 1) (see [26]), but I have adapted them so as to accommodate the full range of factors addressed by the respective parties in this respect. 514It needs to be steadily borne in mind that the applicant was the subject of some disciplinary measures under an IMP process before his removal. In that respect, he was demoted to a Senior Constable and, as previously mentioned, he had various restrictions placed upon him under two separate IMP's. Seniority and Rank in the Police Service 515I have already referred to the applicant's rank as Senior Constable at the time of his removal. 516The applicant was appointed as a Probationary Constable on 2 May 2000. On 12 May 2001 he was promoted to the rank of Constable and on 24 August 2005 he was promoted again to the rank of Senior Constable. In mid-2008, he obtained the rank of Leading Senior Constable. 517This history represents the applicant had reasonably good promotional history, and a long period of service in the police force at the time of his removal. However, it also demonstrates that, at all relevant times associated with the allegations, the applicant held a senior position within the Police Force. Good Previous Service and Character 518In Lawrance (No 1) at [26(a)], the Commission stated: ... the Commission may have regard to whether the applicant had a good service record and good professional and character references: Little No 2 at [83]; Collins at [62] and Evans at [7]. (I will discuss further the relevance of character references below.) However, the counterpoint is that prior misbehaviour may also be taken into account, even if not expressly considered in the Reasons for decision by the Commissioner: Collins at [37] and [38]. 519As to the matter of character references, the Commission in Lawrance (No 1) stated the following at [311] and [312]: 311 In Toshack, the Full Bench reviewed the significance of character evidence in proceedings brought under s 181E of the Police Act and came to the following conclusion (at [69]): 69 Character evidence of police officers that may be led in support of an officer who has been removed under s181D of the Police Act will undoubtedly be relevant to the question of what relief may be ordered where the removal is found to be harsh, unreasonable or unjust. It may also be relevant, depending upon the circumstances of a particular case, to the question of whether the removal was harsh, unreasonable or unjust. Where a person's integrity is being assessed it will involve questions about his or her character. The Commissioner of Police may take one view about a person's integrity but there is no reason why the Commission, in undertaking the type of review that is required under Division 1C of Part 9 of the Police Act, may not have regard to evidence indicating a contrary or divergent view to that of the Commissioner in deciding whether the removal was harsh, unreasonable or unjust. (That determination rejected a contention advanced in those proceedings that character evidence was confined to the question of 'practicability' of reinstatement and was not relevant to the question of whether the removal order was harsh: Toshack at [64].) 312 The Full Bench, ultimately, found that "whether character evidence is a material consideration in a consideration of whether the dismissal was harsh, unjust or unreasonable will depend on the facts of each case": Toshack at [73] 520The Commission also stated, in Lawrance (No 1) at [280]: The significance of references, in the context of a submission by an applicant which relies upon notions of past good service, mitigation or leniency will, no doubt, vary from case to case. There may be cases where the nature of the applicant's contentions and/or character references indicate that none, or only passing attention, needs to be given to the character references. This is not, however, such a case. The references were of such a character, by virtue of the combined effect of their content (in that they not only spoke of the excellence of the applicant's work but the desirability of maintaining his service with the NSW Police Force, both in the interests of that Force and the community) and authorship (given the high standing of the referees in terms of rank, seniority and proximity to the applicant), as to require them to be given, in my view, particular recognition and attention in the evaluation process undertaken by the Commissioner in order to properly conclude whether he retained confidence in the applicant (see McCabe at 373). 521The applicant stated in his written submissions that: At the time of the review before the Commission the applicant is 55. He joined the police force late in life however he was clearly a competent officer who "took the lead" with junior officers and who performed his work well. Crowther could not fault the applicant in the time she worked with him. In such circumstances it is in the public interest to set aside the Commissioner's determination of dismissal. Furthermore, the applicant's good work on operations such as 'Pick a lock" demonstrate that he is an asset to the force as his colleagues attested to. 522In addition to the written submissions referred to above, the applicant's counsel made oral submissions, the relevant extracts of which I have set out below: I represent an individual who generally enjoys doing police work, ... he wants to go back to work because he loves being a police officer. He finds it gives him real purpose. He likes the people that he works with and he likes getting the results. ... and he does get the results. There's no suggestion that he gets the results improperly. The only suggestion is that he's a hard working cop who you would want to be on the streets with. "Terry's" again to use Detective Sergeant Muir's word "Terry's the sort of police officer who has your back". ...So in relation to his achievements and commendations those commendations are from high ranking officers. As I said, it includes Kath Burn. He is a good police officer, and he deserves the full benefit of his good work history. ...Your Honour has heard from both Muir and Crowther, who are respected individuals at their local area command, that they would be happy working with Terry again. He's the sort of officer you would want to work with, and that he's an asset to the force. Those sort of sentiments should not be quickly swept aside. And, in fact, they ring very loudly. He's an enthusiastic officer, to use Crowther's term, despite his age. 523In respect of the COPS allegations, counsel for the applicant submitted: If it was that serious they should have suspended him straight away, but they don't and, eventually, he is removed ... ... without the benefit of an undertaking by the Commissioner properly of weighing up his work history, his devotion to the job, the results he gets, and what others say about him. They're important matters. They're not to be just swept aside. Otherwise there's no difference between someone who's been in the job a day, someone 10 years, someone 30 years. He deserves the benefit, with respect. Deserves the benefit of the time and energy that he's devoted to the police, and he deserves the benefit of the positive results that he achieved, not just for himself as an officer, but the benefits for your Honour, for me, Mr Britt, for the rest of us, in doing his job, in locking up crooks, which is what Muir said of him, and in doing good police work. That benefit should not be denied to him. 524The applicant also contended that the Commissioner failed to give adequate weight and 'paid lip service' to his prior work history (again, citing his "good work on operations such as 'Pick a Lock'"). The applicant stated that he was in the service of the Police Force for over 12 months after the 27 June 2011 allegation without a blemish on his record and that this pointed to the applicant's conduct being an aberration in what is otherwise a good service history. I also note that the applicant received several commendations throughout his career with the Police Force, as identified in his response to the notice. 525The applicant raised his character in his written submissions as follows: 27. The applicant relies upon the evidence of Sgt Crowther and Det Sgt Muir. Both officers clearly respected the applicant and his ability as a police officer. Det Sgt Muir did not have any concerns about [the applicant's] integrity and nor did Crowther. Muir said he was the sort of officer you want by your side on the streets. Terry Vouden actively sought to help junior officers. 526The applicant submitted in the response that he had a "good NSWPF record" and that both his service record and the enclosed four references and four citations constituted: ... evidence of his commitment to and achievement of the highest standards of service to the NSW public in the past and my ability to continue to serve the NSW public with integrity and professionalism. 527The ultimate submission by the applicant was that his work history and character references supported his contention that he had a good service record and was generally of good character. His acts were an aberration. 528The respondent made the following submissions as to the evidence of Sergeant Crowther and Detective Sergeant Muir: My friend described the applicant as a policeman who goes out and gets the job done, that he can be relied upon to do the job. Well, when one considers those matters that form the basis of the allegations 1 to 3, the applicant wasn't going out and getting the job done. He wasn't and could not be relied upon to do the job. That is, the admissions as to fact in respect of allegation 1 to 3 show the applicant to be a person other than was described by Detective Muir in respect of that particular matter. ... Now, without sounding overly cruel, your Honour, the test that your Honour has to consider is not whether the applicant generally enjoys being a policeman or he likes being a police officer, he has friends that are police officers. They're not matters, we say, that your Honour should trouble himself with. In respect of these matters, and the various matters that your Honour has to consider, as we've set out in your written submissions, it may in fact be an easier jurisprudence that people who enjoy their job get some special treatment or different treatment but, with respect, that's not a factor that your Honour needs to consider. 529The respondent also submitted that the applicant had not made just three mistakes but rather many more when one counts his conduct on 28, 29 and 30 April 2011 and then the errors he made on 7 and 27 June 2011 and stated that: The issue is not whether Sergeant Crowther or Detective Sergeant Muir had concerns about the applicant, but whether the Commissioner rightly held concerns. Sergeant Crowther recognised that the allegations against the applicant were serious and that he had disobeyed his obligations on he use of COSP and that he had made some 'dumb' decisions. Detective Sergeant Muir could not explain the applicant's conduct and agreed he may have changed over the last 4 years. And: Sergeant Crowther's evidence that the applicant had serious allegations made against him, that he had disobeyed his obligations on the use of COPS and that he had made some 'dumb' decisions is not an endorsement of the applicant's conduct and that the Commissioner expects better behaviour from an officer who, 'takes the lead'. The applicant's conduct does not arise as a result of any inexperience given his length of service. The applicant has failed to follow policies and instructions which he is required to do in order to be an asset to the Police Force. 530However, the respondent did concede, in his written submissions, that the applicant did have a satisfactory service record and that it is a matter which the authorities suggest the Commission may consider. 531The Commissioner stated in his reasons that: I take into account your prior achievements and commendations, the fact that you regularly acted in a supervisory position and the fact that you attained the appointment of a "Leading" Senior Constable. I take into that you were expected to lead by example and be a role model for junior officers. 532The Commissioner does not specifically mention the applicant's length of service in the above extract but it is reasonable to infer that he was aware, by the comments he made, of the appellant's work history. 533Further, I do not consider the present case to be one in which the Commissioner can be said to have just 'paid lip service' to the character references. The Commissioner particularly stated in his reasons that, when considering all the material associated with the matter, he had regard to the references. This was not a 'glib' statement. In any event, there was no submission by the applicant that the Commissioner did not have adequate regard to those references. 534Having regard to the issues raised, I will, however, examine the applicant's service record in detail below (as well as considering in some greater detail character references given in his favour). Work History 535The sequence of the applicant's progression within the Police Force may be summarised as follows: (1)12 May 2000 - Marrickville General Duties as Probationary Constable; (2)12 May 2001 - Attained the rank of Constable; (3)1 July 2001 - Burwood Anti Theft; (4)20 August 2001 - Endeavour Target Action Group. As to this, the applicant stated: "Whilst in this Unit I also worked in the Drug Unit and the Armed Robbery Unit. I was attached to a number of NSW Crime Commission Drug Strike Forces"; (5)24 August 2005 - Attained the rank of Senior Constable; (6)1 December 2006 - Proactive Crime Team Burwood; (7)24 December 2006 - Burwood Criminal Investigation; (8)2 December 2007 - Proactive Crime Team Burwood; and (9)1 March 2009 - Burwood General Duties. 536From the evidence before me, the following summary of his work history may be extrapolated: (1)The applicant was put in charge of the successful operation 'Pick a Lock'; (2)During April 2006 (and other occasions) the applicant relieved as Acting Sergeant; (3)During the applicant's time in General Duties at Burwood police station, he regularly acted as both internal and external supervisor; (4)During his career the applicant received four commendations for good police work, two complimentary remarks and was awarded the NSW Police Medal on 23 January 2012. The Commissioner's Confidence Submissions set out some of the above mentioned awards and complimentary remarks, including his receipt of the Police Medal; (5)The applicant has gained experience in all areas of surveillance; (6)Over the course of his career the applicant completed all mandatory and many optional courses (including the Field Training Officers course); and (7)The applicant assisted with the apprehension of offenders "numerous times" whilst off duty, and was well known to the local community. 537The applicant noted the specific achievement of having been made a team leader in an operation called 'Street Safe' within two to three months of joining the unit because of his "work performance". 538Mr Nagle sought clarification from the applicant in the following manner: Q. Just take you back a step why were you made a team leader? A. Because I actively sought the role, I was performing a lot of the higher how do I put it? A lot of the times the supervisors would do a performance review on how many events people were doing, how many charges people were doing and normally people doing the higher performance on the performance reviews like the people getting the most charges, the most events, the most intelligence reports, they're normally viewed as the people working harder and ones rewarded with better opportunities for advancement which would be fair to say in most industries. Q. So as far as you are aware that is why you were made a team leader? A. Yes. 539The applicant also gave evidence elaborated on in para 18 of his affidavit sworn 19 July 2012, which referred to the Field Commander complimenting him on his work in respect of the anti-detention protests in Villawood in 2006. 540The applicant identified examples of his good police work covering drug squad, other street level crime, fraud, arson, robbery, sexual assaults and assault. I have considered this evidence carefully. 541The applicant contended that, even though he was not the day to day supervisor of probationary constables, he would assist them. He explained that he did so, as follows: Because a lot of times some of the probationary constables fall through the gaps and if I can explain as simply as I can. When a probationary constable comes to the station they try to give them a buddy that they stick with and they try to align the shift of the probationary constable with the buddy, especially for the first three or four months or the first six months as much as possible so they have consistency with their training. Unfortunately because of rostering and everything else the majority of the time that doesn't happen and a lot of the time they don't get the support they need and they get thrown in with different people. And not everyone is supportive as they could be. And I identify with that and I feel sorry for them and they fall in that gap and through no fault of their own sometimes they fall through the gaps and they're not getting adequate training because they're getting stuffed around with the shifts too much. 542The applicant admitted that he continued to do this whilst under the First IMP, as follows: Q. Just to clarify, you understood you were not to undertake supervisory duties during this period? A. That's correct. But it is part of my job to help them to do the events because I'm doing quality review on the events they're submitting to me. And you were discussing earlier on there's nothing there to support, because if you do a review of my workload on all the events I've resubmitted, some of the events I've resubmitted to junior constables, especially probationary constables, you'll see there might be up to seven or eight resubmits because I have to keep telling them, do this, do this, do this. So there is a record on the police system of where I have been giving them instructions which is part of my duty doing the quality review of the events. So then when I have to tell them in a short narrative on the resubmit reason, you will do, you will do that and they send it back to me and they haven't done the things I've instructed them to because they don't understand or they don't have the ability to do it, then they'll come to the office and have a face to face to me and I'll explain to them fact to face. Does that answer the question? 543The applicant described his record up to 28 April 2011 as "unblemished" and stated that his "skill, experience and position both outside and within the Police Force is an asset to the Force that is valuable and should not be ignored or thrown away lightly". However, in his letter dated 27 March 2012 in response to the investigating report, the applicant accepted that his level of achievement was a 'double edged sword' in that he should have had the requisite knowledge to avoid the impugned conduct. 544The applicant's work history, however, was not 'unblemished' or 'without fault'. The applicant had also been the subject of six previous complaint matters covering three conduct issues, two investigations issues and one criminal issue requiring management action identified in the Commissioner's Confidence Submissions. Of those issues, the applicant proffered justifications for three of them in his response to the notice. 545As to the complaint matters the applicant contested, the Commissioner stated, that he would (after having considered the applicant's response) place no weight on that earlier complaint which related to criminal issues (P0304628), as it did not result in managerial action. This complaint matter will not feature in my present considerations. 546The Commissioner however, was not prepared to accept the applicant's contentions in response to the applicant's 2009 COPS access which resulted in him being counselled. The applicant, having recently commenced an intimate relationship with Ms Green, at the time, accessed COPS in relation to her details, her business, and her ex-partner (LMI 10901482). The Commissioner stated that this earlier COPS matter caused him to consider the applicant's assertion that he had not previously accessed COPS without authority to be unfounded. It is relevant in the present matter. I consider the Commissioner's conclusions in this respect are available, but will return to the issue below. 547The remaining complaint matters were not addressed by the Commissioner in his reasons, nor raised in submissions and I do not propose to consider them any further in this decision. Character References 548The letters that the applicant submitted attesting to his work history are also evidence of his character. The following eight letters of commendation or character references were annexed to the applicant's response and affidavit, to which I have had regard in this respect: (1)A letter from Superintendent A Katsogiannis dated 19 April 2006; (2)A letter of recognition from Commander C J Burn dated 19 May 2003; (3)A letter of appreciation (from Commissioner Moroney) forwarded from Team Leader Paul O'Neill dated 6 March 2003; (4)A letter of appreciation from Commander C J Burn dated 3 March 2003; (5)A letter from Detective Sergeant Muir dated 27 March 2012; (6)A letter from Bruce chol Pak dated 22 November 2012; (7)A letter from Sergeant Crowther dated 26 November 2012; and (8)An undated letter from Detective Sergeant David Glennan. 549Extensive evidence was given by Detective Sergeant Muir and Sergeant Crowther as to the applicant's character. Sergeant Crowther's evidence was that the applicant was "an asset to the force" and Detective Sergeant Muir's evidence was that the applicant was "motivated", "results driven" and "effective in performing his role as a police officer", and that he "still had confidence in [him] to be a good productive police officer". In general, the two officers considered the work and character of the applicant to be praiseworthy. However, I am also mindful that Sergeant Crowther additionally accepted that the applicant had made some "dumb" decisions and that Detective Sergeant Muir conceded that the applicant may have changed in the four years since he had worked with him. 550The applicant's written submissions further emphasised the testimony of Sergeant Crowther to the extent that she referred to the applicant as an "asset" to herself and the Police Force who did his job "very well". It may be noted that Sergeant Crowther expressed this view in her reference which was attached to the applicant's affidavit of 19 July 2013. 551The applicant's submissions also highlighted the evidence of Detective Sergeant Muir who described the applicant as "hard working" and "focussed" and stated that he "still [had] the confidence in Terry to be a good productive police officer". 552Putting aside the references and evidence of Sergeant Crowther and Detective Sergeant Muir, there is one other character reference by a police officer named Detective Sergeant Glennan. It is based on that period of the applicant's work history from 2007 to 2009. 553Detective Glennan's reference was very positive about the applicant and his work whilst he was under Detective Glennan's supervision from 2007 for a period of two and a half years. The character reference from Detective Sergeant David Glennan was that the applicant was "honest, hardworking and capable" and that the applicant was "an excellent proactive officer with a keen eye for his work and extensive knowledge of the law". Detective Sergeant Glennan stated the following: As a direct result of his operational experience and supervisory abilities, on Terry's behalf and in recognition of his work, I successfully applied for and was granted permission to have Terry promoted to Leading Senior Constable. 554Detective Glennan's view was that, if the applicant has committed an error "unwittingly", then he would not repeat the same mistake. 555Ms Green had also given evidence that: Terry was working very hard. He was very proud of being a police officer. Even if he wasn't feeling well he still would go to work. Conclusions as to Work History and Character 556The evidence before me, of both the applicant as well as that of his colleagues, suggested that the applicant generally had a positive work history often characterised by commitment, motivation, hard work and both a willingness and ability to 'take the lead'. As I have outlined above, the applicant undertook a series of roles within the Police Force, received several commendations and complimentary remarks and ultimately attained the rank of Leading Senior Constable. 557The character references certainly showed the applicant to be a proactive, hardworking, enthusiastic police officer who loved his work. The references of Sergeant Crowther, Detective Sergeants Muir and Glennan provide testament as to the applicant's past periods of good conduct and good service to the Police Force. These references were, undoubtedly given in the clear knowledge that the applicant had engaged in misconduct. Undoubtedly the officers who gave the character references supporting the applicant were completely honest in their assessment of him. 558It should be noted that whilst Detective Sergeant Muir knew the applicant for 10 years as at the date of his reference (being 27 March 2012), his evidence as to the applicant's professional work pertained to a time four years prior to 2009. Sergeant Glennan's reference as to the applicant's work also pertained to a period of two and a half years from 2007. 559In summary, I have formed a favourable view of the applicant's service record prior to April 2009. Further, I consider that the character references in this matter are relevant to the question of harshness. They are testimony to the applicant's good character and service as a police officer. However, the references (and service record) need to be weighed in the light of the Commissioner's views, prior misbehaviour and, ultimately, the seriousness of the conduct of the applicant hereunder examination. In particular, the earlier 2009 COPS complaint needs to be evaluated in this light, particularly in relation to the question as to whether the applicant may reoffend (to which I shall return). Age of the Applicant 560Mr Nagle stated that the applicant was 55 years old and submitted that the Commissioner erred in not giving any or any adequate weight to his age at the time of removal. 561The applicant's age did not feature as part of the Commissioner's reasons. However, I would be reluctant to reach a conclusion that the Commissioner did not consider the applicant's age when that fact would have been obvious from the material before him. Further, the applicant did not raise his age as a mitigating factor in the response (although he did refer to his age in his 27 March 2012 letter). This omission would relieve the Commissioner of considering the matter as part of his statutory obligations under s 181D(3)(c). 562Whilst age may, in many cases, be of little significance, I do not consider that it may be so treated in this case. Whilst the applicant's age does not, because he commenced in the police service later in life, reflect a long service history often associated with his age group, it is relevant because the age of the applicant will impact his prospects of future employment (a factor also relevant to the consequences of removal to which I will refer). Acceptance of Responsibility and Remorse by the Officer 563Lawrance (No 1) at [26(c)] stated: ... objectively demonstrable remorse and contrition and the acceptance of responsibility may be taken into account as mitigating factors: Collins at [67] and Evans at [7]. 564On page 7 of the response, the applicant stated that he appreciated his conduct in relation to the 27 June COPS incident was inappropriate and accepted "full responsibility" for his actions in relation to the COPS incident. 565He also admitted that, in respect of the allegations, he failed to properly follow procedures and policies. He ultimately stated: The notice, pursuant to s181D as particularised reflects gross errors of judgement ... ... I have received a stark and uncompromising jolt as to my responsibilities and obligations to follow procedures at all time. 566The applicant also gave the following evidence as to his remorse: Then when I was formally interviewed in regards to both complaints I made full admissions; I admitted to what I'd done was wrong; I showed genuine remorse; and I also threw my mercy on the investigators, saying that it was out of character and I just had a breakdown at the time. 567The applicant contended that the Commissioner failed to give any or adequate weight to his "genuine remorse and contrition as expressed with respect to each of the allegations". The Commissioner noted simply that the applicant expressed his regret for making gross errors of judgment. 568The applicant submitted that the Commissioner erred in not having regard to the applicant's admissions as made in relation to each of Allegations 1 to 7 as set out in his response. 569It is apparent that the Commissioner paid little attention to this consideration. 570As a broad observation, however, it may be accepted that the applicant did make a substantial number of candid admissions in his response and in submissions advanced by his counsel which reflected remorse and contrition. 571There are plainly contentious aspects of the applicant's case (which are also found in his response) directed to reducing his culpability. Examples of those further issues were the applicant's evidence that he was not conscious of the contents of the English note on 28 April and his evidence that he did not apprehend the criminal allegations in the notes until as late as 30 April. Whilst these issues were resolved adversely to the applicant I do not propose to treat them as factors indicating a lack of an acceptance of responsibility or remorse by the applicant but rather as forensic issues in the case. 572However, there are two areas where the applicant did not make frank admissions demonstrative of remorse or contrition and about which the applicant, on the evidence in these proceedings, still lacks insight. These issues were discussed earlier in this judgment and, in summary, consisted of the following: (1)Whilst the position of the applicant as to his forming an improper association varied in the evidence he gave and the case presented by counsel on his behalf, he ultimately conceded in evidence that he had formed an improper association with SHK. However, he maintained that the association fell at the lowest end of the spectrum; and (2)The applicant failed to recognise the significance of entering an intelligence report as to Mr Roberts. The applicant conceded, under cross-examination, that he could see, in hindsight, that placing the warning against Mr Roberts was serious but only because someone else should have written the narrative. Whilst the applicant reluctantly accepted in cross-examination that the intelligence report could be accessed by police at the beginning of any interaction between Mr Roberts and the police and that the report might raise issues as to whether police would trust Mr Roberts, the applicant maintained that the report would merely encourage police to be more cautious with respect to Mr Roberts and that it could only really impact upon Mr Roberts "if he's lying". 573On balance, I am prepared to accept that the applicant's admissions or those made on his behalf reflect a substantial, but incomplete, acceptance of responsibility and remorse. I am not persuaded that the applicant fully appreciates the seriousness of his misconduct by virtue of his characterisation of his acts as errors of judgment in relation to the two significant areas of concern which I have mentioned above. This will be relevant to public interest considerations. Absence of a Likelihood of Reoffending 574In Lawrance (No 1), the Commission stated at [26(b)]: ... it may be relevant to consider whether there is any likelihood of the officer re-offending: Evans at [7]. This consideration may also include questions as to whether an undertaking was provided not to further engage in conduct which was causal of any misconduct: Dobbie at [34], [52] and [67] and Johnston at [42]. This consideration may depend very much on the particular circumstances of the case and the conduct engaged in by an applicant. 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: Evans at [7], Collins at [67] and Dobbie at [34] and [52] (see a similar approach with respect to medical or psychological problems: Johnston at [43] and [61]). 575Mr Nagle stated that, in the present matter, the applicant had not been "counselled, not put on any sort of improvement plan" and thereby "not given the benefit of learning from his mistakes". 576The respondent submitted that whilst the applicant is still enmeshed in the Korean community there is likelihood of reoffending. The respondent's written submissions also included the following: In order to be an asset to the force a police officer needs to follow policies and instructions. The applicant, as admitted, has failed to do so. 577The respondent also pointed out that the applicant had, contrary to his submissions, accessed COPS previously without authority. 578In the vast majority of complaint issues, complaints made about police officers do not require disciplinary action other than counselling. Such was the outcome of the 2009 COPS complaint made against the applicant. I am concerned, however, that the applicant failed, even by the time of his response, to see that the 2009 COPS access incident was inappropriate. This is demonstrated by the applicant's response where he stated: I maintained my actions were justified ... I also told the officers that my partner's ex boyfriend had been arrested by the AFP for importation, that he may be able to be used as an informant. This is when I accessed through COPS , Christine's the Bar, and Lee's [the ex boyfriend] details in order to give the Unit Lee's full personal details. 579The applicant maintained that his inappropriate COPS access in 2009 was justified, despite the counselling he received in relation to that access. It seemed to be based on his notion that, because he obtained results, his access was justified. This mindset is of concern. The issue was, in April 2009, he breached the integrity of COPS and in doing so failed to discharge his duties in accordance with the clear and impartial standards operating in that respect. 580In 2009, the applicant had the benefit of previous counselling in relation to inappropriate COPS access. The applicant also had the benefit of being carefully supervised and audited under the First IMP from May 2011. The applicant transgressed proper procedure in respect of COPS access despite these safeguards. 581As a consequence of the prior use of COPS discussed above, the Commissioner stated "I find it difficult to accept your assurance that you will not reoffend". 582There are factors which would suggest the applicant would not reoffend. These are principally the "jolt" the applicant received from the censure over his conduct and his expressed intention not to reoffend. 583I have also had regard, in this respect, to those aspects and parts of the oral evidence given by Sergeant Crowther and Detective Sergeant Muir and the character references of those two officers and Detective Sergeant Glennan which concern the applicant's likelihood of reoffending and favourable prospects for future service in the Police Force. 584I note, in particular, that Detective Sergeant Muir stated that 'I ... believe that Senior Constable Vouden will continue to be a productive Police Officer and mentor to junior staff". Detective Sergeant Glennan stated, to which I have earlier referred, that, in his experience, the applicant would not repeat the same mistake. 585Those references, however, were prepared by their authors in the absence of the evidence to which I have had regard in these proceedings. They also must be assessed in the light that the officers (other than Sergeant Crowther) had not worked with the applicant for some years. 586I consider that, on the balance of the evidence, a risk of the applicant reoffending cannot be excluded for the following reasons: (1)The applicant's 27 June 2011 COPS access occurred despite having been warned of the consequences of making unauthorised accesses and having been reminded of his responsibilities when using the confidential information contained within the COPS system. This is further exacerbated and compounded by the fact that the applicant was under an IMP when he committed the 27 June inappropriate COPS access; (2)The applicant's conduct showed a disregard for the advice and warning issued to him by senior officers and did not demonstrate the level of professionalism, integrity and ethical decision-making expected of a serving police officer; (3)I adopt that part of the respondent's submissions that there is no evidence that the applicant is able to prevent feelings of frustration affecting his actions and decisions, both factors which the applicant maintains caused his misconduct. There is no evidence that the factors motivating or underpinning his behaviour have been addressed in a manner that could give confidence he would not reoffend; (4)The applicant sought that the Commission look at the two incidences (SHK and COPS) as isolated incidents at a time in his life when external circumstances impacted on his health and, therefore, his judgment (see p 4 of his letter dated 27 March 2012 in response to the investigation). Unfortunately, the conduct in Allegations 5, 6 and 7 cannot be treated in this manner because the applicant's 27 June 2011 COPS conduct bears a striking similarity to the 2009 COPS conduct in both manner of, first, access ( personal) and, secondly, motivation for (to be proactive). Despite counselling in 2009, even by the time of the hearing before the Commission there is a clear inability to understand that access in both instances is completely unjustified. Further, the applicant shows no real insight into the seriousness of the improper association in which he engaged; and (5)I have had regard to Mr Nagle's submission that the applicant has not transgressed since 27 June 2011. The applicant may rely upon the absence of any poor conduct after 27 June (see Owens v NSW Police Service). The applicant did have a good employment record after the 27 June COPS events. However, the 27 June COPS events themselves occurred shortly after the SHK allegations and, at that time, he was under an IMP. A further modified IMP was then implemented due to his 27 June 2011 COPS access. Hence, this transgression free period occurred whilst the applicant remained under close supervision for that period and, from 27 June 2011 he was under even more stringent auditing The Stigma Surrounding Removal 587There is, of course, some stigma which may attach to the circumstances surrounding the removal of an officer and this may be taken into account as a factor relevant to considerations as to harshness of a removal (see Hosemans v Commissioner of Police ( No 4) (2005) 150 IR 263 at [26] ('Hosemans No 4')). 588The applicant gave evidence to the effect that the loss of rank and being placed in traffic office duties was demeaning and humiliating. I accept these are genuine concerns. However, this was ultimately a temporary measure until the processes before the Commissioner were resolved. 589Although there is an inherent stigma related to the removal from the Police Force which will be taken into account in relation to harshness, the particular circumstances surrounding this matter would not engender additional impact on the applicant in this regard. The misconduct in the present case is not of a such personally private, sexual, embarrassing or criminal nature which would, of itself, attach heightened stigma to the circumstances surrounding the removal that would be relevant as an additional factor in mitigation. The Consequences of the Removal 590Removal of any police officer will have both personal and financial implications upon the officer. The Commission, in Lawrance (No 1), stated at [26(e)], as follows: ... in Little No 2 at [69], the Full Bench made it clear that "any exclusion of consideration of the consequences of a removal (even if prima facie the decision was in some way said to be 'justified') is erroneous as such an approach would effectively remove from consideration essential aspects of the statutory tripartite test, such as whether the removal was, in all the circumstances, 'harsh'". In Collins at [63], the Full Bench, in reliance on Metropolitan Meat Industry Board, adopted the approach in Little No 2 at [69], thereby emphasising the necessity to give consideration to "the consequences facing an employee and to the mitigating factors, including the immediate consequences of dismissal, such as the impact on superannuation" following the removal of a police officer. Both the financial consequences of the removal and the prospect for the applicant's economic future are relevant: Johnston at [70]. This factor will plainly have greater significance where it may be demonstrated that the impact upon the removed officer was, given the personal circumstances of the officer, particularly severe or, in some cases, out of the ordinary. It must be balanced with other factors bearing upon the question of harshness, not the least of which is the seriousness of the applicant's misconduct. 591In his written submissions, the applicant referred, in this respect, to the following evidence as to why he sought reinstatement. Well, your Honour when I left high school I did a four year apprenticeship as a fitter machinist. Worked in numerous industries within my trade work for a number of years and did a lot of travel with my work doing trips away, a lot of large jobs. I have worked in the tourism industry as a dive master running a dive shop up in the Barrier Reef. Also worked on commercial fishing boats on the Coral Sea. I've done a lot of different things, I've worked in sales. I've had my own business. Sales business. I've done a lot of different things, trying different things because I get bored easily because I like challenges. When I finally took up the job as a police officer basically when I was 49 years old I had never done any academic studies, I'd only every done trade studies. The first time I've ever been to university, done an essay so I had to change all my learning curves dramatically with the way I write and everything else. But it's the first time I found a job that made me happy. It filled all my things. It satisfied all my, like you know, challengers, because I found a lot of jobs once I start to learn it too good and there's no challenge there I started to get bored with it. But police work is one of the jobs where you never know it at all. It's always a learning curve, there's always something you can learn. You get too good in one area there's always another area you can move into and it has given me satisfaction both in working and in life. 592I refer again, in this respect, to Mr Nagle's submission that the applicant "wants to go back to work because he loves being a police officer. He finds it gives him real purpose. He likes the people that he works with and he likes getting the results". 593I accept the applicant's submission that he has suffered personally and these factors do give particular dimension to this case given the applicant's age. I accept that the applicant finds a strong sense of fulfilment from work as a police officer and that it became a significant part of his life. I note also that the applicant's health has suffered due to the long and ongoing investigation. I have taken these matters into account. The Financial Impact on the Applicant 594There can be no doubt that the applicant's economic and financial circumstances have suffered since his removal. The consequences, given the applicant's age, are potentially quite severe and, on his evidence, the prospects of future employment are limited. 595The applicant stated in his letter dated 27 March 2012 addressed to "The Commander" at Burwood police station that he had suffered financially and lost $8,375 net in wages between 18 April 2011 and 22 July 2011. He also stated that further financial hardship would "ruin me and make a secure retirement in 10 years approximately time a fantasy". 596As at March 2012, the applicant was renting a house and paying off a personal loan. The applicant stated that he had very little disposable income. The evidence presented to me as to the current financial circumstances of the applicant was limited. The applicant stated, in his affidavit of 19 July 2013, that his finances were very low and he had experienced minimal success with finding employment since his termination. However, he gave evidence that he had become accredited as a private investigator and had obtained some contract work in this respect. The applicant has had varied careers prior to becoming a police officer. He also, commendably, attended university in his late forties. All of these are testament to his personal drive and work ethic. 597I have also taken into account that the applicant's financial position will be adversely impacted by his removal. The fact that removal has occurred late in his life after a shift in his career to policing means that the impact (both in financial and work fulfilment terms) is likely to be more acute. 598I will refer to my conclusions as to harshness after considering matters arising under s 181F (3)(a). Public Interest 599I have earlier referred to a passage from Lawrance (No 1) which addresses the concept of public interest under s 181F(3). Further relevant passages (at [16] to [18]) are set out below: 16 I would propose to set out, for the purposes of adoption (as the Full Bench did in Collins), at [218] to [220] of Van Huisstede as illustrating the proper process for the balancing of public interest considerations. Those passages are as follows: 218 The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context) :Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. 219 In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals carry out those responsibilities in a manner which is both just and reasonable. 220 In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner). 17 In relation to issues concerning integrity, the Court of Appeal in Sewell No 2 (at [72]) indicated that s 181F(3)(b) uses the language of institutional integrity rather than personal integrity, as identified in s 7(a) of the Police Act but, in the particular context of a reference to the integrity of the Police Service, the provision should be understood as encompassing any issue of integrity which arises with respect to the Order for removal of a particular officer to which the review by the Commission relates. 18 In Commissioner of Police v Brennan (2008) 172 IR 56, the Full Bench, after considering the terms of s 7 of the Police Act and the common law office of a constable, observed (at [66]): The appellant submitted that the public interest, reflected in the conferral of the power in section 181D of the Police Act is concerned with maintaining a police force whose members are not only sworn to uphold and enforce the statutory mission and functions referred to above, as well as undertake the special responsibilities of the public office, but do so in fact. We agree with this submission. 600The serious misconduct engaged in by the applicant referred to in Allegations 1 to 3 and 5 to 7 respectively adversely reflected, in certain respects (as I have found), upon the applicant's personal integrity, as contemplated by s 181D(1). The Commissioner's findings as to integrity were, in my view, reasonably open to him. 601The factors productive of those conclusions also resonate with public interest considerations under s 181F(3)(b). In particular, the engagement by the applicant in an improper association of the kind earlier described and his decision to make an intelligence report with respect to Mr Roberts bear upon the integrity of the Police Force. 602Thus, the applicant's conduct is not only most incompatible with the trust and responsibility residing in a police officer but also reflects upon the integrity of the Police Force as a public institution engaged in law enforcement. 603The applicant's improper association has the capacity to erode public confidence in the integrity of the Police Force as an independent and impartial police force in which police officers are bound by oaths of office. 604The abuse of COPS, with respect to the entry of an intelligence report concerning Mr Roberts, has the potential to raise doubts about that system by undermining the confidentiality and security precepts underpinning the system (designed, inter alia, to prevent exploitation by police officers disaffected in their private or professional lives). 605To those considerations must be added my conclusions as to the lack of insight by the applicant into aspects of his misbehaviour and prospects he may reoffend. Those matters concern future adverse implications for the integrity of the Police Force. Conclusion re Harshness 606It is against this background and the findings earlier made in this decision as to the seriousness of the applicant's misconduct that an overall assessment as to 'harshness' must be undertaken by the Commission. 607As earlier mentioned, that consideration requires an evaluation as to whether the removal of the applicant was harsh because of his personal and economic circumstances or because it was disproportionate to the gravity of the misconduct (in itself or when examined in the light of the personal and economic circumstances of the applicant). 608I have earlier discussed the applicant's personal and economic circumstances and the consequences of his removal. He joined the Police Force as a late career change. He is clearly passionate about that role as a police officer and his enthusiasm and exuberance have been recognised in promotions and awards. The loss of his position will, therefore, deprive him of a career which has a particular personal and professional significance to the applicant. There are also reasonably significant adverse financial implications for the applicant which are compounded by his age and a stigma attached to his removal. Those are matters also relevant to my considerations under s 181F(3)(a). 609The applicant's past good service record and references attesting to his personal character, work ethic and performance, as earlier found, are also factors which contribute (in favour of the applicant) to an assessment of whether his removal was harsh. 610Those conclusions do not necessarily result, however, in a finding that the removal was harsh. They must be balanced or weighed against earlier findings as to the seriousness of the applicant's conduct and public interest considerations arising under s 181F(3)(b). 611If public interest questions are put aside for one moment, I do not consider, on the evidence in these proceedings, that it may be concluded, even when exculpatory or mitigating factors are taken into account, that the applicant's removal was disproportionate to the gravity of his misconduct. As earlier found, his misconduct was very serious. 612The assessment of harshness may not stop there. I am sympathetic to the applicant because his removal will be keenly felt and will have adverse personal and financial consequences for him. His past good conduct and assessments of character in references and evidence (including as to future service) must act, subject to my earlier reservations, in his favour. However, after close deliberation, I do not consider that it may be properly concluded that the removal was, when weighed against the gravity of the applicant's conduct, harsh. 613Those assessments have, to this point, not included public interest questions. In my view, the conclusion is a fortiori when that factor is introduced into consideration. The removal here was of a police officer and the adverse public interest considerations I have found weigh heavily both with respect to the question of whether the removal was harsh, unjust or unreasonable and, ultimately, as to whether the application made could properly be granted. 614I find that the removal of the applicant was not harsh. Conclusions 615In all the circumstances, I find that the removal of the applicant from the Police Force was not harsh, unreasonable or unjust and that, when assessed in that light and in the light of public interest considerations, the application must be dismissed. Orders 616The application filed in these proceedings by the applicant on 5 March 2013 is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2014