Industrial Relations Commission New South Wales Medium Neutral Citation: Baker v Commissioner of Police [2015] NSWIRComm 14 Hearing dates: 12 March 2015 Date of orders: 06 May 2015 Decision date: 06 May 2015 Jurisdiction: Industrial Relations Commission Before: Kite AJ Decision: The application is dismissed. Catchwords: POLICE - Removal of police officer – Allegation against police officer performing duties as Police Prosecutor regarding conduct and integrity - Random drug test – Admitted use of prohibited drugs – Serious misconduct – Person likely to have supplied drugs known to applicant – No identification of person who supplied drugs – Right to silence - Public interest and interests of police officer considered - Held applicant demonstrated a lack of insight into the implications of his actions for the integrity of the Police Force - Held removal of the applicant from the Police Force was not harsh, unjust or unreasonable - Application for relief dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985 Industrial Relations Act 1996 Police Act 1990 Police Regulation 2008 Cases Cited: Baff v New South Wales Commissioner of Police [2013] NSWSC 1205 Commissioner of Police v Alyson Reid-Frost (No 2) [2010] NSWIRComm 2 Commissioner of Police v Brennan [2008] NSWIRComm 52; 172 IR 56 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 Hosemans v Commissioner of Police [2004] NSWIRComm 285; (2004) 138 IR 159 Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 Police Service Board v Morris and Martin (1985) 156 CLR 397 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Reid Frost and the Commissioner of Police (No 2) [2010] NSWIRComm 86 Toshack v Commissioner of Police [2009] NSW IRComm 31; (2009) 181 IR 420 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Vouden v Commissioner of Police [2014] NSWIRComm 25 Walsh v Commissioner of Police [2011] NSWIRComm 26 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64; 88 ALJR 52 Texts Cited: NSW Police Force Code of Conduct and Ethics NSW Police Force Drug and Alcohol Policy NSW Police Force Handbook Category: Principal judgment Parties: Matthew Baker (Applicant) Commissioner of Police (Respondent) Representation: Counsel: E Raper of counsel (Respondent) Solicitors: K & L Gates Solicitors (Respondent) File Number(s): IRC 755 of 2014 JUDGMENT 1. Matthew Baker ("applicant") has made an application under s 181E of the Police Act 1990 ("the Act") for review of an order of the Commissioner of Police ("Commissioner" or "respondent") made on 9 October 2014, removing the applicant from the NSW Police Force. The Commissioner had determined that he did not have confidence in Mr Baker's suitability to continue as a member of the NSW Police Force. In the context of s 181D of the Act the determination was based on the grounds of 'integrity' and 'conduct': see Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [214]. 2. The Commissioner's reasons for his decision to remove the applicant from the NSW Police are set out in a document entitled "Statement of Reasons" which accompanied the s 181D order. Included in those Reasons, set out more fully below, was the following statement: As an experienced Senior Constable performing prosecuting duties, you are aware of the seriousness and criminal consequences of prohibited substance use. Your misconduct falls well short of the community's expectations of any police officer, and particularly, a police officer attached to the Command that is responsible for prosecuting offences, including those related to drug misuse and trafficking. 1. From the outset, the applicant had admitted to having used cocaine, albeit for a limited period. The applicant submitted to the Commissioner that he had, in respect of such conduct, discretion under cl 83 of the Police Regulation 2008 ("the Regulation") to consider whether the alternatives set out in the Regulation are more appropriate than dismissal. In support of his argument for the exercise of that discretion, Mr Baker relied on the personal circumstances leading up to his misconduct, his otherwise long and satisfactory record as a police officer and prosecutor and his willingness to follow a regime of testing to ensure there was no repetition of the misconduct. 2. Mr Baker appeared for himself. Ms E Raper of counsel appeared for the respondent. Legislative Framework 1. Section 181D of the Act provides: 181D Commissioner may remove police officers: (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (6) (repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 1. Sections 181E, 181F and 181G, contained in Division 1C of Pt 9 of the Act, provide for the review of a Commissioner's decision under s 181D. They relevantly provide: Division 1C – Review of Commissioner's decision under Division 1B 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. The Allegation 1. The allegation was set out in the notice served on Mr Baker pursuant to s 181D(3)(a) of the Act on 9 July 2014. It was expressed as follows: There appears to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that you consumed a prohibited drug, resulting in you testing positive for cocaine and cocaine metabolites. 1. It is not contested that the applicant's actions amounted to misconduct, although confined to a period specified by the applicant to be from in or about late October 2013 to 2 December 2013 when the random drug test, which revealed the use, took place. The Order 1. On 9 October 2014, the applicant was issued an order under s 181D(1) along with, in accordance with s 181D(4), a Statement of Reasons from the Commissioner. 2. The Order was expressed as follows: Order under section 181D(1) of the Police Act 1990 I, Andrew Phillip Scipione, Commissioner of Police, having considered your conduct and integrity do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Force. In reaching my decision, I have carefully considered the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the evidence contained in the supporting documentation, which were served on you. I have also taken into your account your written response to my Notice. The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this Order. 1. In the Statement of Reasons, the Commissioner wrote: I expect the highest standards of conduct and integrity from all sworn officers. The use of prohibited drugs is an extremely serious issue. As an experienced Senior Constable performing prosecuting duties, you are aware of the seriousness and criminal consequences of prohibited substance use. Your misconduct falls well short of the community's expectations of any police officer, and particularly, a police officer attached to the Command that is responsible for prosecuting offences, including those related to drug misuse and trafficking. I note that you have raised your previous good record and I take into account the serious personal circumstances you were facing. You have also presented references and medical reports which commend your commitment to your work and confirmed that you were under stress at the time that you partook in illegal drug usage. However, I am extremely concerned by your admitted behaviour. As you are aware, officers of the NSW Police Force are charged with upholding the law. NSW Police Force policy clearly provides that there is no place in the NSW Police Force for officers who use prohibited drugs. The risks to the integrity, reputation, effectiveness and health and safety of the NSW Police Force are grave. I am concerned that the testing results appear to suggest usage greater than an isolated incident. While you have neither confirmed nor denied your amount of usage in your response, based on other evidence available, I am inclined to conclude that this was more than a one-off incident (albeit you state confined to a period). Despite this, I still consider that one-off usage would amount to serious misconduct that is inimical to the duties of a police officer and particularly a police prosecutor. 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. I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics and the NSW Police Force Drugs and Alcohol Policy. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer. The Application 1. The respondent named in the application is the "NSW Police Force". It should be noted that the proper respondent to these proceedings is the "Commissioner of Police", being the employer for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction over industrial matters: see s 85 of the Act. 2. No issue was raised about this irregularity, which I regard as one of form. The Notice of Appearance filed on behalf of the respondent on 14 November 2014 was by the "General Counsel, NSW Police Force". The respondent was described as the NSW Police Force in a number of documents, but by the time of the hearing the respondent was being correctly referred to as the Commissioner. It is appropriate that the Respondent be correctly named. 3. I therefore direct pursuant to s 170 of the Industrial Relations Act 1996 (the IR Act) that a reference in these proceedings in any document to the NSW Police Force as respondent be taken to be a reference to the Commissioner. Further, I waive any requirement to formally amend the documents. 4. In his application for review the applicant set out the following grounds: 1. That the Commissioner failed to take into account future drug testing to ensure my integrity in the future; 2. The Commissioner took no account of the statutory provisions of cl 83 of the Regulation; 3. That having regard to the circumstances leading to the misconduct the sanction of dismissal is harsh; 4. Having regard to the circumstances of my length of service and exemplary previous history the sanction of dismissal is unreasonable; 5. In all the circumstances the decision to dismiss is unjust. 1. In a Notice of Contentions filed for the purpose of the hearing Mr Baker submitted the following as being the primary issues to be considered in this review: 1. That the Commissioner of Police has applied the wrong test to the application of s 181D of the Police Act 1990 in that he has dealt with the matter on a punitive rather than a protective manner. 2. That the Commissioner of Police has made no reference and appears to have taken no account of Division 3 of the Police Regulation 2008. 3. That the Commissioner of Police has not dealt with and paid no regard to the mechanisms and offer to be tested for drugs in the future to guarantee that no misconduct will occur in the future. 4. That the matter of my dismissal has been dealt with on a zero tolerance basis as a matter of Policy and not dealt with the on its merits 1. The applicant submitted, in summary, that in all the circumstances which gave rise to the misconduct, the removal was harsh, unreasonable and/or unjust: see Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139. Evidence Applicant's Evidence 1. The applicant read the affidavit of Matthew Baker filed 20 January 2015. The applicant was cross-examined. Respondent's Evidence 1. The respondent relied upon the following evidence in the course of the proceedings: 1. The "Commissioner's Confidence Submission", which contained all the material that was before and considered by the Commissioner at the time he issued the s 181D Notice to Mr Baker. This folder of documents became Exhibit 4 in the proceedings. 2. Affidavit of Miriam Davis filed on 16 February 2015, tendered without objection. The witness was not required for cross-examination. 3. Affidavit of Dianne Sutton filed on 16 February 2015, tendered without objection. The witness was not required for cross-examination. 4. Affidavit of (then) Inspector Kirsty Heyward (who at the time of giving evidence had the rank of Acting Superintendent) filed on 16 February 2015. Certain paragraphs of Ms Heyward's affidavit were objected to by the applicant on the basis of prejudice. Ms Heyward was cross-examined. Applicant's Evidence 1. I note that in summarising the applicant's evidence it is convenient from time to time to refer to documentary evidence contained in Exhibit 4 so as to better understand the context. Background 1. The applicant deposed to his employment within the NSW Police Force and the circumstances that gave rise to his misconduct. Much of this information was also set out in his submissions in reply to the s 181D Notice dated 28 July 2013, which were identified as annexed to his affidavit, along with his Police Service History and his response to adverse findings dated 23 March 2013. The documents were not annexed but were identified as contained within Exhibit 4. 2. Mr Baker was attested as a Probationary Constable on 17 May 1996. His first posting was to the City of Sydney Patrol and he remained there until December 1996 when he was transferred to the Kings Cross Patrol. At this time he performed General Duties at Kings Cross primarily in the "Beat" Policing unit. As will be seen, the applicant relied on this experience to explain his ability to identify the cocaine. 3. In June 2002, Mr Baker was transferred from the Kings Cross Patrol to the Legal Services Unit (Police Prosecutions). He completed his training as a Prosecutor and was appointed a Prosecutor in December 2003. He performed his duties at the Downing Centre, Manly, Newtown and Bidura courts up until June 2012. In June 2012 he was transferred to the Senior Advocates unit of the Police Prosecutions Command, where he remained until his suspension in December 2013. 4. Mr Baker deposed that in the more than 18 years as a sworn officer he was not subject to any disciplinary proceedings resulting from his conduct as a police officer while on or off duty. 5. The applicant stated that the misconduct was a result of his emotional state due to the circumstances leading up to his drug use, namely, his father's death in October 2013. He referred also to the death of his long term friend and colleague in 2007 after which, he said, he became socially isolated and totally committed to his work. 6. In cross-examination, Mr Baker indicated that he took personal leave between 8 October 2013 and 15 October 2013 after his father's death. He accepted that in the month of November 2013, specifically between 4 November 2013 and 2 December 2013, he did not take any further substantial leave. The Drug Test 1. In respect of the events leading to the allegation, Mr Baker deposed: 14: On Monday 2 December 2013 I attended work at the Downing Centre Local Court. Upon entering the office I was told that Healthy Lifestyles were conducting Random Drug tests. About 15 minutes later I was called out as being selected for a test from the roster. About 9am I was called to do the test and admitted that I had used Cocaine. I submitted to the test which was positive. About 10 30 I was dismissed from work and sent home. I collected my belongings and left. About 15 minutes after I left work I was contacted by Senior Sergeant SYKES and requested to return to work for a hair sample to be taken. I returned to the Downing Centre and awaited for the Drug testers to return. I then submitted to the test. I again left work and returned home. 15: I was suspended with pay on the following day being 3 December 2013 and advised the following week that the suspension was to continue "without pay". 1. The random drug test was conducted by Drug and Alcohol Testing Officers Ms Dianne Sutton and Ms Miriam Davis, who gave evidence to that effect by way of affidavit. Consistent with the applicant's admissions their evidence was not challenged. The drug test included taking urine and hair samples. The investigation 1. On or shortly after 5 December 2013, following receipt of the urine test results (included in Exhibit 4) the Professional Standards Command commenced an investigation. The applicant's suspension without pay commenced on 10 December 2013. 2. On 12 December 2013, Mr Baker provided a written submission seeking a review of his suspension without pay. The document was included in Exhibit 4. Mr Baker stated the circumstances "temporal to the current matter" as follows: On 7 October 2013 my father Peter Baker died at home. Police from Gordon LAC attended the death. I was approved a period of FACS leave for the period following this. I was supported at the funeral by two officers from the Police Prosecutions Command at the funeral being Inspector Heyward and Senior Sergeant Arnold. My father had previously suffered many health problems and I was assisted in providing support to him and my mother over the period of 2007 till his death. Upon return to work I disclosed a self harm attempt by my mother to my manager and others. As a result of this I had difficulties continuing work at the Senior Advocates Group due to being needed to assist her. The travelling and pressure of substantial preparation of matters in my own time that I have done while at the Senior Advocates unit was not sustainable in those circumstances. I was assisted by Police Prosecutions to work for a period of 3 months at the Downing Centre rather that (sic) Senior Advocates to facilitate my personal difficulties. The above matters were formally known and as such verifiable as occurring prior to the test on 2 December 2013. 1. Mr Baker submitted to the Commissioner's Delegate that the misconduct, being the taking of prohibited drugs, was a breach covered by cl 83 of the Regulation. 2. The applicant requested that the Commissioner give consideration to his circumstances prior to making a determination pursuant to cl 83(5) that the provisions under s 181D are the only appropriate action. 3. I interpolate that the toxicology report (included in Exhibit 4) relating to the hair sample was dated 18 December 2014. It confirmed that cocaine had been consumed within the preceding 1.5 months. 4. With regard to the investigation Mr Baker deposed: In late January 2014 I was contacted by professional standards command and offered an interview about the misconduct. I obtained legal advice prior to this and again immediately after receiving the request. The nature of the suspension as served on me indicated that it related to drug use. As a result I declined to be interviewed as the offences I committed were within the statute of limitations period in which criminal proceedings could be commenced. I am now free to describe the incident as I have above as the statute of limitations for any offence I may have committed has passed. 1. On 27 February 2014 the investigators report (which was attached to Ms Heyward's affidavit) was provided to the applicant. The investigator found the allegation of illicit drug use sustained. He was advised by notice dated 3 March 2014 that consideration was being given to the taking of reviewable action against him under ss 173 or 181D of the Act resulting from this finding. 2. By document dated 23 March 2014 (labelled annexure 5 to his affidavit but included in Exhibit 4) the applicant responded to the investigator's adverse finding of illicit drug use. In that response the applicant: reiterated the submissions earlier made as to his personal circumstances; acknowledged the seriousness of his misconduct, describing it as a "fundamental breach of the trust given to all Police by the Commissioner"; offered to participate in a rigorous testing regime; and observed that the conduct was out of character given his record as a police officer. He submitted in these circumstances that "confidence could be entrusted to me in the future if permitted to remain in the Police Force". Submissions in reply to s 181D(3)(a) Notice 1. On 9 July 2014 a Notice pursuant to s 181D(3)(a) of the Act was served on the applicant. The Notice was accompanied by supporting documentation. Mr Baker made a submission in reply to the Notice, reiterating matters that the Commissioner should consider in determining whether he may be able to retain confidence in Mr Baker's suitability to continue as a police officer. The submission titled "Submissions in reply to Loss of Confidence notice Section 181D" and dated 28 July 2014, was identified in the applicant's affidavit as Annexure 3 (but again was part of Exhibit 4). In that submission he stated: I ask you to give consideration to the options available under Regulation 83 of the Police Regulations 2008. Action under Section 181D is available if appropriate in all the circumstances but I ask you to consider whether the alternatives set out by parliament in the regulation are more appropriate. It is my key submission that Parliament has set forth mechanisms whereby you could retain confidence in an officer after a failed drug test. It is these verifiable mechanisms that I ask you to allow me to use to demonstrate that I am an officer who does not use drugs. 1. The applicant further submitted in that document other circumstances which were not included in his earlier submissions. He stated: As I now realise my difficulties commend (sic) in November 2005. Prior to that time my social life revolved around a single friend. This friend Patrick [surname redacted]….is one I was best friends through high school with and in the period prior to us joining the Police. In fact we submitted our applications to join the police together in early 1995 and commenced preparing ourselves for the academy. Patrick was accepted in the class before me Class 263 and I was then accepted in class 264. After joining together the Police became the focus of our lives. Most of the friends we both had fell away as they had no reference to the all encompassing focus the Police had on our interests. In the next years through to 2005 our friendship remained as girlfriends came and went. It was with Pat that I socialised other that the temporary expansion of our group to include our newest partners. My friendship with Pat was the orbit of my social life and this remained so until 24 October 2005. Pat was having problems at JIRT Chatswood where he was team leader and simultaneous problems with his then girlfriend. I was fixated on my then girlfriend and missed the signs that he was in as much trouble as he was in. It was then on 24 October 2005 that Pat went to the JIRT office at Chatswood and killed himself I (sic) the locker room with his service glock. My notification of his death was less than ideal as a trainee assigned to me at Bidura whom was unaware of my close relationship informed me whilst I was in submissions at the bar table. As I think now my actions at this stage were wrong as I finished the matter I was in so not to let anyone see a sign of weakness in me. I kept my stoic façade delivering the eulogy at the Police funeral and getting back into work. The refuge of work then dominated my life since. I felt safest and most comfortable at the Bar Table with the most difficult prosecution available as my challenge. My social life from that point dissolved and my life was my work. I maintained a couple of friends I saw infrequently but effectively became a loner with work the function of my existence. My non work time mostly spent with preparation and research for my matters. 1. Mr Baker further elaborated on the circumstances immediately preceding his prohibited drug use: I now realise that In the period preceding and following my fathers death I found myself isolated and ill equipped to deal with emotional issues appropriately. My father Peter died on 7 October 2013 which was within 2 months of my drug use and failed drug test. In the period after his death I was faced as are most persons at one time or another with the inevitable grief that follows. Beyond the natural grief that all suffer when dealing with a loss I was subjected to further pressures. My mother had greater that normal difficulties dealing with the loss of her husband and I took responsibility for dealing with this. She suffered from both physical and mental health issues resulting from my fathers death. 1. The applicant submitted these matters should be considered by the Commissioner in his determination whether an order under s 181D is the only appropriate course of action with respect to the applicant's misconduct. Evidence in the Review proceedings 1. In his affidavit Mr Baker elaborated even further in relation to the events which gave rise to his possession of the illicit drugs, he deposed: … 10: About 3 weeks after my fathers death I went to the Greengate Hotel at Killara and met with a group of friends None of these persons were present or former Police officers. I have known these friends since school. I had been with mum during the earlier part of the day and was upset. I had about 4 alcoholic drinks over a period of hours. I am a cigarette smoker and had a packet of cigarettes with me. About 5pm I had been there for several hours and went to the bathroom. When I returned I collected my cigarette packet and mobile phone that I had left on he (sic) table and went outside for a smoke. In the cigarette packet I found what was probably two grams of cannabis and a quantity of white powder in a plastic bag. I do not know which of my friends gave me the drugs as there were about 7 people at the table. I deduced that the drugs had been given to me on purpose. I tool (sic) possession of the drugs at that time knowing what they were and made no inquiry to locate the provider. I kept them and took them home when I left the pub a sort time after. 11: When I got home I placed the drugs in a drawer. The next day I took the drugs out and disposed of the cannabis. I retained the white powder which looked to be cocaine. I worked at Kings Cross for many years and was more than familiar with drug types and there appearances. I estamate (sic) the quantity of cocaine was more than a gram but less than two grams. I did not have any of the drug and put it back into a drawer. 1. This was the first occasion on which Mr Baker revealed anything as to the means by which he had come into possession of the drugs. 2. By leave, the applicant gave additional evidence in chief. He said that he remained unemployed despite daily efforts to secure employment. He was currently in receipt of Centrelink benefits "on a notional basis" but was financially dependent on his mother. He described his home situation as tenuous. He summarised his position in these terms: The loss of my job in October has meant that I have lost my house. I had to sell that. I have not only lost my job, I have lost my house. There is a strong possibility of becoming homeless which is a long way down from where I was on 2 December 2013 so it has had a substantial effect on me personally as well as financially. Serious Misconduct 1. In cross-examination, Mr Baker accepted that his actions amounted to a criminal offence and that it was a serious matter. He did not necessarily concede that the offence constituted a 'serious criminal offence' for the purposes of the Drug Misuse and Trafficking Act 1985. He also accepted that a Prosecutor committing criminal offences could undermine public confidence in prosecutions by the police and that his conduct in this instance undermined the integrity of the police and the capacity to prosecute. 2. Mr Baker frankly agreed that he knew at the time of his misconduct that the Police took a "zero tolerance" approach to illicit drugs and despite that knowledge he took illicit drugs on multiple occasions in November 2013. 3. The applicant reiterated that he could have identified the persons who provided him the illicit drugs. He gave the following evidence: Q. And also to protect your own interests in the sense you want to maintain the friendships with those people? A. I don't have any friendships floating around at the moment so I've got no‑one to protect. Q. These are people you have known since school? A. And no‑one has done anything to help me since this has happened so I've got no‑one going out of my way to protect. ... Q. And you accept also that you should have disclosed your association with these people, the seven people at the table? A. I should have thinking back working appropriately I should have reported it then and then and they would have got the CCTV. ... Q. You accept don't you that it is very serious isn't it that you did not take steps to identify who the person was? A. That is what I should have done and that is where the failings commenced. Q. And you accept don't you that it is very serious in the sense that it shows that you are prepared to choose to do things that are in your own interests above that of the New South Wales Police? A. At the state of mind I was in then, yes I did and I've never denied it. Q. It is the case isn't it as well as a prosecutor you were placing yourself in a very compromised position weren't you? A. These proceedings have borne that out. Q. But in the sense that you could then come to prosecute the person that supplied you with that drug couldn't you? A. Because they weren't gonna go and say Mac here it is, so no‑one's ever said here it is, take this. No‑one put their hand up and gone through that step so there's no‑one who could then come back and say I need you to do this in reply. Q. Of course they could, any one of those seven people could come to you and say at the point that they are about to be prosecuted and say hey mate I gave you those drugs and you took them and you never reported me for it? A. I've got no‑one specifically to report. Q. Yes you do ‑ you know ‑ on your version you knew it was one of seven people at that table? A. Yes and it could have been and I recognise it could have been determined if I had got the CCTV at that point that could have been identified that was the ‑ I don't expect them to come and say yes it was me but it would have been identified through the CCTV. Q. You appreciate don't you that it looks, doesn't it, very concerning that on your version that someone who's known you for over 20 years would assume that you would take drugs that they gave you? A. It's concerning but at the same time they know well enough not to have said here you go here it is. Q. That also is concerning, isn't it, because there is an assumption in that potentially and that is the way that it appears is that that person who knew you very well knew or anticipated with risk that you wouldn't take steps to identify them? A. Yes I have to agree with that. Q. And so you accept, don't you, that you were duty bound to arrest whoever supplied the drug, do you? A. If I'd known who the person was at that stage I should have but. Q. You would have found out wouldn't you? A. But I could have, that's the thing, I had no‑one I can go you're under arrest now but that doesn't help me a great deal because if I had investigated it those issues could have been got around. ... Q. And you accept don't you that it is in the public interest and New South Wales Police that you make sure that your personal interests do not cloud or inhibit your job as a police officer ‑ you accept that don't you? A. Would you repeat that. Q. You accept don't that you're required to put the public interest and the interests of New South Wales Police above personal interests? A. Yes. Q. And that includes of course having associations with people who engage in criminal activities like social drug use? A. There's an assumption that I associate with people who socially use drugs, I don't. Q. Okay you accept don't you though that you associated with people who supply drugs? A. I agree that I associated with persons who on that occasion supplied drugs. Q. So you accept by virtue of that association that that is not putting the public interest and the interests of New South Wales Police above your own interest? A. That I did wrong on that day is without doubt. 1. I observe that in the above passages Mr Baker departs somewhat from his candid admissions of wrongdoing and takes a rather more semantic approach to his answers. His responses drawing a distinction between associating with persons who use drugs and those who supply them was no doubt thought by him to diminish the seriousness of the association. While neither association would in the ordinary course be thought to be desirable for a police officer, associating with suppliers would to my mind be significantly worse particularly when the officer is doing nothing to apprehend the supplier. This is a matter which I regard as relating to the applicant's insight (or lack of it) into the nature of his conduct and the implications for his role as a police officer. 2. Mr Baker relied on the right to silence as a reason for not declaring his purported associations with persons who supply drugs. He gave the following evidence: Q. And you were required to declare that association weren't you? A. I somewhat have to disagree in respect of that answer because of the right to silence. Q. The right to silence occurs doesn't it at the point you are the subject of an investigation? A. Yes. Q. You accept don't you that you can't excuse away your conduct by accepting possession of them and using them and by saying you had a right to silence can you? A. If I at that stage ‑ well the correct decision would have been to do as you said to have declared immediately in relation to taking the drugs straight to court got the CCTV but once I'd gone past that point then to do anything else would have led to adverse consequences. Q. So you are entitled to protect yourself are you, is that what you're saying? A. Once I had made that choice. 1. One cannot deny the right to silence of a person who may be open to be charged with a criminal offence. However, the right is not always relied upon. Mr Baker, as I have noted above, from the very outset admitted his consumption of cocaine. That admission having been made, and never withdrawn, it seems an incongruous choice to rely on the right to silence so as to "protect" oneself but also, in the result, to limit the capacity of the police to apprehend the supplier. A better choice, from the perspective of the community and the applicant's desire to remain a member of the Police Force, may have been to offer assistance in the apprehension of the supplier. One would expect Mr Baker, as an experienced, prosecutor to understand the implications of such cooperation for any sanction to be administered to him. Again, this is a matter which relates to the applicant's insight. 2. As regards his use of illicit drugs, Mr Baker deposed: 12: The drugs remained in my possession at home untouched for the next two weeks. On a date I believe to be the 9th November 2013 I was at home by myself. I had returned from seeing mum and was feeling depressed and sad. I made a decision to remove the cocaine from the drawer and had a small amount. I returned the remaining drug to the drawer. 13: I used a small amount of cocaine on about 5 separate occasions over the next month leading up to the drug test on 2 December 2013. Although I used small amounts the drug it had an appreciable affect (sic) upon me. The last time I used the drug was on Saturday 30 October. I was alone on each time I used the drug and was at home. 1. In cross-examination, it was accepted that Mr Baker's medical records represented a more accurate account of the number of times the applicant had taken the illicit drugs during the relevant period, in contrast to his affidavit. The medical records were marked as "Exhibit 3" in the proceedings and tendered by the respondent. According to those records he used the drugs on three occasions – 11, 13 and 30 November 2013. 2. Mr Baker, in his affidavit, outlined the personal and financial consequences to himself as a result of his removal from the NSW Police Force. He deposed: 17: Since being Suspended from employment and my subsequent dismissal I have suffered dire personal and financial consequences. I obtained a substantial part of my self worth from my job. It was not merely employment but a way of life for me. I have lost it as a result of my dismissal. As a result of the loss of income I am currently unemployed and have made application for assistance through Centrelink. I was forced to sell my unit were (sic) I live and now rent the same unit on a month by month basis. At this stage I will be forced to become homeless in the next month or so. 18: I have been assisted by my General Practitioner and a Psychiatrist to assist me dealing with the issues I currently face. 1. I have noted above the additional evidence given by the applicant updating and emphasising these consequences. The respondent's evidence 1. The "Commissioner's Confidence Submission" included the Commissioner's Statement of Reasons. The latter identified the primary considerations and reasons for his determination as follows: Allegation 1 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you consumed a prohibited drug, resulting in you testing positive for cocaine and cocaine metabolites. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2008, the NSW Police Force Handbook, the NSW Police Force Drug and Alcohol Policy, and the NSW Police Force Code of Conduct and Ethics. Section 7 of the Police Act 1990 relevantly states: Statement of values and members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, … Clause 9 of the Police Regulation 2008 relevantly states: Responsibilities of off-duty police officers (1) A police officer who is off-duty (whether rostered off-duty, on annual leave, suspended or otherwise absent): (a) is subject to the provisions of this Regulation and the Police Code of Conduct, and (b) will be held responsible for any misconduct by the officer while off-duty, and … Section 3 of the Drug Misuse and Trafficking Act 1985 relevant states: prohibited drug means any substance, other than a prohibited plant, specified in Schedule 1. Schedule 1 to the Drug Misuse and Trafficking Act 1985 relevant states: Prohibited plant or prohibited drug … Cocaine Clause 78 of the Police Regulation 2008 relevantly states: Code of Behaviour (1) A member of the NSW Police Force must not use any prohibited drug. … The NSW Police Force Handbook relevantly states: Prohibited Drugs NSW Police Force employees and contractors must not use any prohibited drug at any time. There is no place for any person within NSW Police Force who uses, sells or supplies prohibited drugs. … KEY MESSAGES All NSW Police Force Employees and contractors are expected to be free of impairment by alcohol or any other form of drug including prescription medication in the workplace. All NSW Police Force employees or contractors are not permitted to use illegal drugs at any time, whether on duty or off duty. This includes so called 'recreational or party' drugs. There is no place for any NSW Police Force employee or contractor who uses illegal drugs, sells illegal drugs or abuses prescription drugs. Illegal drug use by a NSW Police Force employee or contractor is in contravention of the Code of Conduct and Ethics and the Statement of Values and a Police Officer's Oath of Office. … Contravention of the NSW Police Force Drug and Alcohol Policy places the safety of employees and the community at risk and compromises the integrity, reputation and effectiveness of the NSW Police Force. The NSW Police Force Drug and Alcohol Policy relevantly states: Commissioner's Foreword All employees of the NSW Police Force are required to comply with the policy's general principles of total abstinence from using illicit drugs. The use of anabolic steroids is also prohibited unless lawfully prescribed and monitored by appropriate medical practitioners. My message to all staff is very simple. If you take illicit drugs, if you sell illicit drugs, if you abuse prescription drugs, there is no place for you in the NSW Police Force. … Policy Position This policy reiterates the conditions of employment by all NSW Police Force Officers that drug and alcohol testing is a standard procedure and abstinence from using prohibited drugs is mandatory. … Code of Behaviour All NSW Police Force employees and contractors are expected to present operationally fit for the commencement of any rostered duty to remain so, free of impairment by alcohol or any other form of drug. … [T]he use of prohibited drugs and or non prescribed anabolic steroids is not permitted at any time on or off duty. … Prohibited Drugs NSW Police Force employees and contractors must not use any prohibited drug at any time. There is no place any person within the NSW Police Force who uses, sells or supplies prohibited drugs. … Positive drug tests Any police officer who tests positive to the presence of a prohibited drug is liable to dismissal. Point 1 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. You must always act lawfully and never in a way that brings, or is likely to bring discredit to the NSW Police Force. … Point 3 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must know and comply with all policies, procedures and guidelines that relate to their duties. If you are going to work lawfully an effectively you need to understand and act in accordance with the standards that govern your duties. Point 6 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with the law whether on or off duty. The NSW Police Force is responsible for upholding the law. Unlawful and/or criminal conduct by employees of the NSW Police Force is incompatible with that role and also unlikely to bring the NSW Police Force into disrepute. All employees of NSW Police are expected to comply with the law at all times. 1. Acting Superintendent Kirsty Heyward gave evidence and was cross-examined by the applicant. I note that the Acting Superintendent had provided a statement dated 29 July 2014 which the applicant annexed to his "Submissions in reply to Loss of Confidence Notice". 2. Four subparagraphs ([53](b), (c) and (g) and [54](a)) of Ms Heyward's affidavit were objected to by the applicant on the ground that they raised fresh allegations of misconduct which were not raised at all in the initial investigation and were not considered by the Commissioner at the time of his determination. The objection was disallowed having regard to the nature of the review proceedings: see Hosemans v Commissioner of Police [2004] NSWIRComm 285; (2004) 138 IR 159. A further reason was that the evidence was responsive to evidence led by the applicant. 3. Acting Superintendent Heyward was, at the time of the random drug test, the applicant's immediate manager and held the position of Manager, City and Specialists Courts in the Police Prosecutions Command. At the time of giving evidence she was Acting Director of Operations at Police Prosecutions Command. She is admitted as a Solicitor. 4. The Acting Superintendent's affidavit evidence was directed to: the role of a Police Prosecutor; the role of the Special Advocates Unit; her knowledge of the applicant and his role as a prosecutor; her knowledge of the random drug test and her actions following it, including providing the reference to Mr Baker; and her opinion as to whether Mr Baker is capable of returning to work as a police officer. In this respect, for reasons detailed in her affidavit, she concluded it would be very difficult for him to return as a police prosecutor or member of the Senior Advocates Unit. 5. Under cross-examination the Acting Superintendent gave the following opinion of the applicant's performance as a prosecutor: Q. In court and out of court. As a manager was I a person of concern to you? A. No, the only issue, and we've discussed this a number of times, was your time management and your organisational skills. And as a manager that was, yes, that was the extent of the concerns with you, which, at times, led to circumstances where you'd take on so much work where the matters that I thought were not being properly prepared. Q. In relation to those matters, firstly, you agree I took on a lot of matters? A. Yes, I agree. Q. You wouldn't have any issue with my diligence as a prosecutor, or eagerness, I'll rephrase it? A. Eagerness, yeah, I'd agree with that. Q. In relation to the conduct ‑ sorry, the results, were you receiving concerns through others about how matters were being conducted as a result of the time management issue, or were they coming through as they should, despite what was perceived to be a time management issue? A. I, on a number of occasions, spoke to you about your time management issues, whether it would have been from a moment ‑ I recall attending Bankstown police station and speaking with victims of crime for a matter you prosecuted; four hours I was there speaking with them. And I would put that back to some issues with your time management where, perhaps, things were being withdrawn at the last minute, sometimes incurring costs. 1. As to the practicality of returning as a prosecutor she gave the following evidence in cross examination: Q. In relation to the practicality of re‑employment, if I can delve down into that particular issue, how does that particular issue of integrity relate to how I may deal with my day to day job as a prosecutor? A. I'm not sure what you want me to say? Q. I'm giving you an opportunity to explain where the problem is? A. You have no credibility, that's my belief. Your credibility, your integrity, whether ‑ if you are reinstated to the police, would cause Magistrates concern, I believe, other police officers concern and the community. 1. The applicant continued his cross-examination directed to the possibility of implementing controls to ensure there would be no repetition of his misconduct or impact on his work. Acting Superintendent Heyward did not agree. The following evidence is illustrative: Q. Looking at the practicality of re‑employment, if there was an officer, such as myself, who had had an identified issue in the past, it would be possible to maintain supervision to ensure no inappropriate advice was provided, i.e., someone getting access to the brief handling system or brief legal advising; it's all there in paper to determine whether anything inappropriate is going on, correct? A. No, I don't agree with that. Q. Why? I don't need to ask the why question but I always do? A. Well, are you referring to if you were being tasked with checking briefs; is that what you're referring to? Q. Yes? A. Whether or not I could supervise your advice, which is given to other police? Q. In writing? A. If you put it in writing, probably. Q. And if that was part of their return to duties for a period it has to be in writing to verify, that would be able to be done, correct? A. On that particular point, are you asking if you were to return in that duty and there was a specific indication that you had to put everything in writing? Q. Yes? A. What's the question? Q. Is that something that would able to be accomplished by a diligent manager? A. That's really difficult to answer because there's a number of different considerations that we need to take into account. Q. Have any of those other considerations been looked at? A. I'm talking about considerations about your general integrity. I'm talking about considerations about the fact there is no such ‑ there is no such thing as brief managers any more. So if you're asking me specifically about that, that's not an option. So I'm not ‑ what do you want me to say? What are you actually asking me? Q. In relation to legal advising, I assume you still do that? A. Yes. Q. Would that be an available position where appropriate supervision could be maintained if that's where I was return to? A. You would be able to be supervised, but you will still be required to give advice about drug related matters. Q. In relation to the ‑ I'll ask you this way ‑ obviously there is no dispute from my point that there has been a period of drug use covering a period of weeks. If I was tested daily would that provide any comfort to you that there would be no reoccurrence in respect of my integrity? A. My answer to that is that the damage to your reputation, that effect on the New South Wales Police has been done. Q. Yes? A. So I don't think that allowing you to return with mechanisms in place would resolve that. 1. The cross-examination also sought to test the concepts of rehabilitation and persisting reputational harm and risk. In the opinion of the Acting Superintendent reputational harm had occurred and would persist if Mr Baker were reinstated. Reputational risk was continuing. She gave the following evidence: Q. In relation to your affidavit do you say that there would be an expectation that members of the legal profession ‑ and I'm paraphrasing ‑ that my reputation would be destroyed and, therefore, unable to be rehabilitated. That's a summation; do you agree with it? A. Your reputation ‑ in my belief your reputation was destroyed. Q. In respect of being rehabilitated, as I understand you say there's no capacity to be rehabilitated in respect of the field I would seek to work? A. You as a person being rehabilitated or your reputation? Q. My reputation? A. Are you asking whether I think it can be? Q. Yes? A. No, I don't. Q. The reason for that is what? A. Because you are a police officer; you swore an oath to do certain things, to not do certain things. The community expects you or us police to live by that oath. So do Magistrates, so do, you keep referring to, the legal practitioners. Apart from that, you are a police prosecutor. You were prosecuting people who had been charged with drug related offences. The compromise there can't be fixed. Q. Would you agree that relates to what I'd done in the past? A. Of course I'm talking about ‑ I'm talking about what happened as in the past. But as in when I say now, I don't think that can be overcome. I'm saying that now. Q. What is ‑ I'll ask the question why which I always do ‑ why is it that's going to continue on in the future in your mind, that the damage is done and that's going to be maintained? If there's testing, if there's supervision, why is there then in your mind still a risk of the damage ongoing? A. The risk is the perception from the community, the police, the courts, whether it be Magistrates, that you were a police officer, you took drugs; that will be a risk. In my opinion that will continue if you return to the Police Force. Q. What is the risk? What is the risk to which you are concerned of? A. You're talking about ‑ I'm ‑ the opinion I'm offering, you're asking me is about other people's opinion, so it's‑‑ Q. I asked you what do you think the risk is if I was to return? A. To the reputation of the Police Force, that's what I'm saying. Q. By doing what? A. By letting you in, back into the Police Force. Q. Do you say there is a risk that I'm going to use drugs in the future? A. I'm saying there is a risk it would damage the community's expectation about police officers in the Police Force. I say that there is a risk that that damage will ‑ that occurrence will damage the reputation of police in the Police Force. I believe that that risk will damage the reputation of prosecutors in the Police Force. Q. But if I can address you towards the risk in the future, do you say that there is a risk that I will do drugs in the future? A. I can't say yes or no. Q. That I'm going to associate with persons who are accused? A. Bearing in mind the fact that you've never disclosed who these seven people were, who you say it was one of those who supplied you drugs, yes, that risk is still continuing. The question about your continued integrity is still continuing. Q. In relation to those seven persons, when do you say I should have disclosed that? A. Well, do you want to go back to the night first? Q. So on the night, yes? A. And then perhaps any day up until 10am this morning. 1. The Acting Superintendent agreed that Mr Baker was upset following his father's death and was concerned about his mother. The Command took steps to assist including transferring the applicant from the Senior Advocates Unit to the Downing Centre. 2. Ms Davis, Drug and Alcohol Testing Officer, gave evidence in relation to the random drug and alcohol test conducted by Mr Baker. The evidence of Ms Davis included the terms of an admission made by the applicant just prior to the administration of the test. Ms Davis was not required for cross-examination. 3. Ms Sutton, Drug and Alcohol Testing Officer, also gave evidence attesting to the events at the time of the random drug and alcohol test conducted by Mr Baker. Ms Sutton was not required for cross-examination. Consideration 1. It is undisputed that Mr Baker had breached the relevant provisions of the Regulation, the NSW Police Force Handbook, the NSW Police Force Code of Conduct and Ethics ("Code of Conduct") and the NSW Police Force Drug and Alcohol Policy ("Drug Policy"). 2. I have earlier set out the grounds contained in the Application and the Notice of Contentions advanced by the applicant prior to hearing. Not surprisingly there is a degree of repetition between the two documents. In essence the applicant submitted: 1. The Commissioner took no account of cl 83 of the Regulations (Application Ground 2 and Contention 2); 2. The Commissioner failed to take into account the offer to participate in a future testing regime (Application Ground 1 and Contention 3); 3. The Commissioner applied the wrong test, taking a zero tolerance approach, and acting to punish rather than protect (Contentions 1 and 4); 4. In view of the circumstances leading to the misconduct the sanction of dismissal is harsh (Application Ground 3); 5. In view of the applicant's service history the sanction is unreasonable (Application Ground 4); 6. In all the circumstances the decision is unjust (Application Ground 5). 1. The applicant developed these submissions and added to them in his final oral submissions. I will not traverse the detail of him doing so but some of his oral submissions put these submissions in the context of a s 181F review. It is appropriate therefore to note them. 2. Mr Baker emphasised the lack of any reference in the Commissioner's Statement of Reasons to points (i) and (ii) above. He submitted that in cl 83 Parliament had prescribed what the consequences should be for use of illicit drugs. He accepted that it did not completely fetter the Commissioner's discretion but required the Commissioner to consider the range of options. To adopt a "zero tolerance" approach, such that dismissal was the only option, contradicts Parliament's intention and was unjust or unreasonable. 3. The applicant stressed that the matter had been investigated over a substantial period but no further grounds were put forward. The Commissioner acted on the result of a single random drug test. The only other criticisms advanced by the respondent are those contained in Acting Superintendent Heyward's evidence which he maintained could not be responsive to his evidence because the witness had not read his affidavit before swearing her affidavit. 4. I pause to observe that one would expect an experienced prosecutor to understand that witnesses give evidence. They do not run cases. Advocates have the responsibility to determine what evidence they will lead and ask witnesses questions to elicit that evidence. Counsel for the respondent submitted, and I accepted, that the evidence to which the applicant objected was relevant to evidence the applicant gave for the first time in his affidavit. In that sense it was responsive to his evidence. That he could not perceive that to be the case was further evidence as to his lack of insight. 5. The applicant perceived that Ms Heyward's evidence suggested in some way that he had fabricated an aspect of his evidence. I did not understand that to be the case. The Acting Superintendent's evidence was directed to the implications of the applicant's admitted action and inaction. It is correct, as he submitted, that her evidence is only her opinion but it is the opinion of an experienced and senior police prosecutor. I observe as well, that Acting Superintendent Heyward appeared to me to bear no ill will towards the applicant. To the contrary she was sympathetic to him. She gave her evidence, whether in favour of Mr Baker or against him, directly and candidly. 6. Mr Baker submitted that he was not trying to protect any particular person. If he knew who the person was who supplied the drugs he would say so, he said. He didn't know the identity of that person. All that he could say, he submitted, was that it was one or more of the seven people with him at the hotel that evening. The applicant knew the identity of those people but has not identified any of them. 7. Aligned with this submission was the applicant's submission as to his right to silence. He argued that by December 2013 there was "no great utility" in investigating the supply (although there was no elaboration on why he took that view). Therefore, he submitted, it is wrong now to assert that he is seeking to protect somebody. He referred to the decision of Baff v New South Wales Commissioner of Police [2013] NSWSC 1205 and said that it stood for the proposition that no adverse action can be taken against him for declining to be interviewed. 8. The applicant referred to the dire financial and personal circumstances confronting him as relevant to harshness. He acknowledged there was a need to balance that against the harm to the reputation of the Police Force. 9. He submitted that the refusal to accept the steps in which he had offered to engage to mitigate the risk of future reputational harm to the Police Force, demonstrated that the Commissioner's decision was directed to punishment not protection and was unjust or unreasonable. 10. Finally, in relation to practicality of re-employment the applicant submitted there was little evidence of consideration of the alternatives. It would be a waste if his accumulated experience as an officer and prosecutor were to be thrown away when the risks attached to his re-employment can be completely mitigated. Conduct of review matters 1. A number of the applicant's contentions appear to be more appropriate to proceedings concerned with judicial review of administrative action. The respondent made submissions to the effect that such an approach is misconceived. It is convenient therefore to refer briefly to the nature of these proceedings before turning to a detailed consideration of the submissions. 2. Section 181F of the Act relevantly provides: 181F Proceedings on a review In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 1. The principles as to the conduct of police review matters are conveniently set out in Lawrance at [19]-[25], where his Honour Walton J, Vice President (as he then was) set out: [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]). (emphasis added) 1. These principles were recently confirmed and applied in Vouden v Commissioner of Police [2014] NSWIRComm 25. As noted in Vouden at [508]-[509] per Walton J, President, such matters as procedural unfairness, when considered in the light of the parties' respective cases, do not alone constitute a basis upon which the determination can be considered harsh or unreasonable. However, such matters can be considered as part of the overall merits of the applicant's contentions that the removal was harsh, unreasonable or unjust in the circumstances. 2. I have emphasised certain parts of the extract from Lawrance because those passages encapsulate, in my respectful view, the key elements of a review of this kind. It will be seen that one of those elements is procedural fairness (encapsulated in the highlighted passage from Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231). That is of course a ground of administrative review but it may also be the basis of injustice or unreasonableness in this context. First and Second Submissions– Alternative Mechanisms 1. Mr Baker argued the decision was unjust as the Commissioner had failed to consider possible alternatives to an Order under s 181D of the Act. In particular, that the Commissioner had failed to consider the possibility of a mitigation of risk by future drug testing. 2. In this context the applicant referred to a perceived inconsistency between the Act and the Regulation in the Commissioner's application of his discretion. It was submitted: In relation to the actual misconduct that has been found, it is key to note that that relates specifically and on the Commissioner's declaration under section 181D only to the failure, and those are things which are incumbent with it, failure of a random drug test. There is no outside evidence of misconduct or any grounds which relate to my competency as an officer which has been brought forward. The Commissioner relies solely on page 6 of the 181D notice in his key comments, that there is a failure of that drug test and as a result of that failure there are then consequences which flow. I return momentarily to section (sic) 84. That is a section which I say must have some relevance. I don't say that it binds the Commission totally but it is trite to say the Commissioner acting judicially in his discretion would at least pay heed to what Parliament has prescribed in its regulation as to what the consequences should be, and if the consequences that are put forward give a range of options, then it would seem trite that the Commissioner should at least engage his mind to those options to which the Parliament has determined that he should. In this case that hasn't happened. 1. Mr Baker relied on Div 3 of Pt 5 of the Regulation and in particular cll 83 and 84. I set out the relevant parts of cll 83 and 84: 83 Consequences for police officers using prohibited drugs or steroids (1) This clause applies if: (a) the Commissioner considers, as a result of a test (other than an initial screening test) conducted under section 211A or 211AA of the Act or this Part, that a police officer has breached the code of behaviour by using a prohibited drug or steroid, and (b) the police officer has not breached the code of behaviour in that manner in the 5 years preceding the breach. (2) In such a case, the Commissioner may ask the police officer to choose whether to undergo counselling and rehabilitation or whether to face the possibility that a section 173 order may be made with respect to the officer. … (5) The Commissioner is not required to ask the police officer to choose whether to undergo counselling if the Commissioner, having regard to all the circumstances, considers that it would be more appropriate to make a section 173 order or section 181D order with respect to the officer. 84 Consequences for police officers repeatedly using prohibited drugs or steroids (1) This clause applies if: (a) the Commissioner considers, as a result of a test (not including a screening test) conducted under section 211A or 211AA of the Act or this Part, that a police officer has breached the code of behaviour by using a prohibited drug or steroid, and (b) the police officer has breached the code of behaviour in that manner in the 5 years preceding the breach. (2) In such a case, the Commissioner may make a section 173 order or a section 181D order in relation to the breach of the code of behaviour by any such police officer 1. The applicant observed that the alternatives identified in the regulation were not mentioned in the Commissioner's reasons and therefore contended that the Commissioner had not had regard to them or to his submissions as to the mitigation of risk. 2. In response to Mr Baker's first and second and submissions the respondent submitted: First, the Commissioner is not required to take into account, as part of the section 181D removal process, the drug testing mechanisms available under reg. 83. As the regulation states, at reg. 83(5), the Commissioner is not required to consider this option where it would be more appropriate to make a section 181D order. Secondly, and consistent with the first proposition, the police officer does not have a right to be subject to this regime, rather the Commissioner always maintains the discretion (if the conditions in reg. 83(1) are satisfied) to ask to (sic) the police officer to undergo counselling and rehabilitation (reg. 83(2)). Thirdly, reg. 83 has no scope where serious integrity issues arise, as they arise in this case: Walsh v Commissioner of Police [2011] NSWIRComm 26 at [94]. Mr Baker's drug use was not accidental (by inadvertent exposure) or a one-off. Mr Baker possessed and used drugs over a two month period prior to being caught. Mr Baker failed to disclose his association with drug suppliers and/or users and continues to protect them. Mr Baker has been at least less than frank in his evidence or at its highest untruthful as to the circumstances leading to and occasions on which he used drugs. Each of these matters raises serious integrity questions. Fourthly, even if there were a procedural deficiency arising from obligations under the regulations (which is disputed), such a deficiency will have little bearing to the Commission's overall determination where it would not have made a material difference: Reid-Frost and the Commissioner of Police (No 2) [2011] (sic) NSWIRComm 86 at [144]-[153]. 1. Mr Baker's submission in relation to a failure to consider is based upon the proposition that the Commissioner has not said anything about these matters in his Reasons. While it may be correct to say they have not been separately referred to, it does not follow that the alternatives were not considered. In terms, both the Order and the Reasons refer to consideration of the applicant's response dated 29 July 2014. In his Reasons the Commissioner states that he has given "careful consideration to all the material that has been presented to me in this matter". The response of 29 July 2014 refers expressly to cl 83 and to the applicant's willingness to participate in a testing regime. In the context of this particular matter it cannot be safely concluded that the Commissioner has not considered these propositions in light of his statement and the observations which follow; cf Lawrance at [281]. 2. The terms of the Reasons lend weight to this conclusion in several respects. The Commissioner refers, in the extracts quoted at paragraph [11] above, particularly to the applicant's role as a prosecutor in the context of: 1. the awareness that flows from that role of the seriousness of the use of prohibited drugs; 2. the impact on community expectations; 3. even one-off drug usage being inimical to the role. 1. It seems clear that the Commissioner regards it to be an aggravating factor that the usage is by an experienced senior constable performing prosecuting duties. Such matters are likely to inform the exercise of discretion under cl 83(5). 2. The Commissioner also refers to his concern that the testing results suggested the usage was not an isolated incident and he expresses his inclination to conclude that this was more than a one-off incident. In this respect he notes the applicant neither confirmed nor denied that it was "one-off" but did submit it was confined to a period. These sorts of factors relate to the considerations specifically raised in cll 83 and 84 of the Regulation. Similar propositions were advanced in Walsh v Commissioner of Police [2011] NSWIRComm 26. In that case it was contended that usage of steroids over a period should be considered as "one-off". Staff J rejected that suggestion as "an abuse of the meaning of the phrase one-off'". I agree. More importantly though, it suggests in this context that the Commissioner was alert to the options under cl 83. 3. In addition, the Commissioner said in connection with these conclusions that he had "difficulty in seeing how your integrity as a police officer could be relied upon if you were to perform policing duties in the future". Such a conclusion is inconsistent with either of the alternative sanctions (s 173 or counselling) which by their nature involved continuing to perform policing duties. 4. Finally, in this respect the Commissioner refers to the duty of officers to uphold the law. He cites, in his Reasons under the heading "Key Messages", the following passage: Illegal drug use by a NSW Police Force employee or contractor is in contravention of the Code of Conduct and Ethics and the Statement of Values and a Police Officer's Oath of Office. (emphasis added) 1. A breach of the Oath is undoubtedly a matter going directly to integrity. In Walsh Staff J said of the operation of cl 83 of the Police Regulation : [94] Clause 83 of the Police Regulation applies to situations where prohibited drug or steroid use by a police officer has been detected following a urine test of on-duty police officers conducted pursuant to s 211A and s 211AA of the Police Act. Clause 83 does not apply to the circumstances of this case. It has no scope when serious integrity issues arise. 1. The Commissioner is obliged by s 181D(4) of the Act to give reasons. This statutory duty is an exception to the common law position in relation to administrative decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The adequacy of the content of those reasons is to be determined, absent any express requirements in the legislation, by an exercise of statutory construction: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64; 88 ALJR 52. 2. The statutory purpose may be inferred from the surrounding provisions, in particular s 181D(7) and Division 1C of the Act. One purpose which may be inferred is to inform the officer directly affected as to why the decision has been taken so as to allow that officer to decide whether to commence review proceedings. Another purpose which may be inferred is to facilitate any such review. 3. That then requires a consideration of the nature of these proceedings. As observed above, while the starting point in such proceedings is the Commissioner's reasons, the burden is upon the applicant to establish "that the removal was harsh, unreasonable or unjust". The Commission hears the applicant's case and the Commissioner's case in response, and then makes a "fresh and independent review decision itself". 4. The adequacy of the content of the reasons is to be measured in this context. The essence of the reasons is to explain why the decision has been taken. It is not necessary, in the reasons, expressly to negate every possibility: cf Lawrance at [274]-[276]. It remains open to the applicant in the review to establish that the removal was harsh by reason of a failure to adopt an alternative and appropriate sanction. 5. The foregoing is not intended to deny that in an appropriate case a failure by the Commissioner to address a particular matter might lead to a conclusion that a decision was unreasonable, unjust or harsh. A failure to address some important exculpatory evidence for example, may lead to such a conclusion but it will never be the end of the matter: see Commissioner of Police v Alyson Reid-Frost (No 2) [2010] NSWIRComm 2 at [36] and [41]-[45] and Reid-Frost v Commissioner of Police (No 2) [2010] NSWIRComm 86 at [144[-[153]. The Commission would be obliged to weigh the respective cases and decide for itself whether the point was made out. Any remedy would then be considered in the light of all of its conclusions. 6. In this case I am not persuaded that the Commissioner has failed to consider the alternatives. It remains to consider whether the Commissioner's conclusions were unreasonable or unjust. I turn then to the substance of the propositions. 7. The first thing to note about cll 83 and 84 is that they are distinguished by whether the officer has or has not, in the previous 5 years, been found to have used prohibited drugs or steroids. If not, the Commissioner has three options: 1. Make an offer of counselling and rehabilitation; 2. Make a s 173 order; or 3. Make a s 181D order. 1. If the officer has been found to have breached the code of behaviour in this respect within the previous 5 years the options are reduced to two: 1. Make a s 173 order; or 2. Make a s 181D order. 1. As the respondent submitted, it is clear from the words of cl 83, in particular sub-section (5), that the Commissioner at all times has the discretion to consider any of the relevant alternative mechanisms as provided under the regulation. The same may be said of cl 84. A point which may be noted is that, although circumstances will no doubt play a significant role, the regulation contemplates there may be cases in which a first breach will not necessarily lead to removal. The question remains whether the applicable circumstances warrant that action. 2. I am satisfied that there was nothing unjust or unreasonable in the Commissioner deciding to initiate a s 181D order in this case. The various circumstances I have identified in paragraphs [83]-[93] above provide a justifiable and reasonable basis for the Commissioner initiating action under s 181D. From the time of selection for the random drug test the applicant admitted using illicit drugs. It was, to a limited extent, a factor in his favour that he made the admission but, as he said at the time according to the unchallenged evidence of Ms Davis: "I have taken cocaine, it's no good me lying to you as you will find out" 1. The circumstances may be quite different had the applicant volunteered his use of the drug. This is not a case of an officer coming to his senses, admitting he has an issue and seeking help. Even when he knew of the possibility of the random test he did not volunteer his use of the prohibited drug. It was not until he had been selected and was about to be tested that he made the admission. It is clear he was hoping to get away with his misconduct. Facing inevitable discovery he made the admission, but even then he did not go further and assist with information which could identify the supplier(s). He exercised his right to silence when invited to be interviewed. The decision in Baff is of limited assistance to him in this regard. 2. In Baff at [114] Adamson J held that the privilege against self-incrimination had not been abrogated by the Act or Regulation. Her Honour went on to say at [115]-[116]: The effect of this conclusion is that the plaintiff is not obliged to answer questions put to him at an interview convened to ask him about the incident in May 2011. The Commissioner, or relevant superior officer, is entitled to direct the plaintiff to attend the interview and is entitled to ask him questions. However, once the privilege is claimed, the Commissioner or his delegate is not entitled to direct the plaintiff to answer any question in respect of which privilege has been claimed. Once the plaintiff claims the right not to answer any questions at all relating to the incident, the Commissioner or his delegate are not entitled to require the plaintiff to answer any question, whether or not the particular answer would tend to incriminate him. This conclusion follows from the broad nature of privilege (3) in Lord Mustill's list, from the law as stated in R v Petty and also from Woon v The Queen [1964] HCA 23; 109 CLR 529 where it was held that the applicant's selective answers could amount to a consciousness of guilt. The plaintiff's assertion of the privilege does not prevent the Commissioner taking action on the basis of the evidence he has been able to collect from other sources in relation to the incident. The Commissioner is not, however, entitled take any action against the plaintiff by reason of his refusal to answer questions about the incident since his refusal amounts to the exercise of a right which has not been abrogated. Any order or direction requiring him to answer such questions would not be a lawful order. Nor is the Commissioner entitled to draw inferences adverse to the plaintiff by reason of his exercise of the privilege. 1. It is correct, as the applicant submitted, that the Commissioner cannot take action against him for declining an interview in reliance on the privilege. But her Honour also observes that it does not prevent the Commissioner from taking action against the applicant based on other evidence. 2. The scientific evidence in this case showed that the applicant had consumed prohibited drugs within a period of about 1.5 months prior to the test. No innocent explanation had been offered. To the contrary, the applicant's admission indicated a deliberate and knowing breach. That in my view is sufficient to justify the exercise of discretion under cl 83 to initiate action under s 181D. It was a view shared, at least in part, by the applicant. In his submission dated 23 March 2014 he said: As with the sustained adverse finding I do not dispute that reviewable action is warranted in the circumstances of the sustained finding. It would appear that the key question is whether continued employment in the New South Wales Police Force by me could be appropriately allowed following the adverse finding. 1. He then relied upon his career record, personal circumstances and the offer of participating in a rigorous testing regime. While no action could flow against him because the applicant declined to reveal more about his use of prohibited drugs, it also followed that he did not have the advantage of mitigating factors such as submitting to the Commissioner that he had co-operated fully and assisted the Police in their investigation. 2. The applicant's first and second submissions are not made out and I find that the Commissioner's decision to proceed pursuant to s 181D was neither unjust nor unreasonable. Third Submission - Incorrect Test and Zero Tolerance 1. Mr Baker submitted, in effect, that the Commissioner's determination was "punitive", whereas it should have been "protective". He cited in support the decision in Commissioner of Police v Brennan [2008] NSWIRComm 52; 172 IR 56. In that case the Full Bench said 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. …. 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 1. I understood Mr Baker's submission to be that the Commissioner was obliged to balance the protection of the integrity of the Police Force and his personal interests. His submission was that the Commissioner simply sought to punish him for his conduct. 2. The first argument in support was the absence of consideration as to alternative mechanisms. That showed, the applicant submitted, that the Commissioner was seeking to punish him rather than "protect" the integrity of the Force. For the reasons given above that submission must fail. 3. Next it was submitted that the conduct relied on was a failure of a single random drug test. There was no other misconduct or lack of performance identified. This led to the final submission in relation to this aspect, and that was to the effect that the Commissioner had taken a "zero tolerance approach" which was indicative of punishment and, as I understood it, a failure to consider his personal circumstances. 4. In response, Ms Raper submitted that the applicant's third submission misconceived the nature of the review before the Commission. The respondent submitted: The question now for determination, is whether the Commission, as part of its own fresh and independent review, is of the view that Mr Baker's removal was harsh, unreasonable or unjust. In any event, contrary to Mr Baker's assertion, the Commissioner's decision was not punitive. The Commissioner's reasons are fulsome and transparent. They reveal that the Commissioner considered the misconduct and Mr Baker's response (as he was required to do under section 181D(3) of the Police Act). There was ample justification on the evidence before the Commissioner for his decision. 1. Specifically as to "zero tolerance" Ms Raper submitted: The Commissioner considered all the circumstances including the fact of drug use, Mr Baker's status as an experienced Police Prosecutor with over 17 years in the police service. Mr Baker's position as a police prosecutor and his conduct being antithetical to his position, Mr Baker's knowledge of the seriousness and criminal consequences of prohibited drug use, Mr Baker's response to the section 181D notice, and the nature of the misconduct. Mr Baker's conduct was serious misconduct justifying dismissal. Illegal drug use has very serious consequences and has been recognised by this Commission and the Federal Fair Work Commission as justifying dismissal: Walsh v Commissioner of Police [2011] NSWIRComm 26; Harbour City Ferries Pty Ltd v Mr Christopher Tom [2014] FWCFB 6249; John Mulder v BHP Billiton Worsley Alumina Pty Ltd [2010] FWA 3150. 1. It is true that included in the Commissioner's Foreword to the Policy (which is dated June 2007 and appears over the signature of K E Moroney, predecessor to the current Commissioner) the following passage appears and is quoted in the Statement of Reasons): My message to all staff is very simple. If you take illicit drugs, if you sell illicit drugs, if you abuse prescription drugs, there is no place for you in the NSW Police Force. (emphasis added) 1. One may speculate this is the source of Mr Baker's phrase of "zero tolerance", however there are balancing items in the Drug Policy. The first (also cited in the Statement of Reasons) is: Positive drug tests Any police officer who tests positive to the presence of a prohibited drug is liable to dismissal. (emphasis added) 1. Also in the Drug Policy, which was annexed to Ms Heyward's affidavit, is a section headed "Availability of Help and Financial Assistance". That section commences with the following sentence: There is a wide range of professional support programs for individuals experiencing dependency problems and NSW Police Force is committed to providing all reasonable rehabilitation support through thes channels for its employees. The procedure for managing officers who disclose personal substance related dependency will be equitable and just. 1. In my view what may appear a blanket statement in the Foreword should be considered in light of the whole Drug Policy. There can be no doubt the Commissioner is seeking to emphasise the seriousness of drug use but the policy makes provision for assistance and rehabilitation. It also states that failing a random drug test renders an officer liable to dismissal. 2. Further, as the respondent submitted, the Commissioner did not stop at the consideration of the positive drug test. There were other features, to which I have already made reference, which may be regarded as aggravating circumstances. 3. The Reasons also refer to the applicant's personal circumstances and the supporting statements. The Commissioner wrote: I note that you have raised your previous good record and I take into account the serious personal circumstances you were facing. You have also presented references and medical reports which commend your commitment to your work and confirmed that you were under stress at the time that you partook in illegal drug usage. 1. In conjunction with my view as to the applicant's first and second submissions, I am not convinced that the Commissioner applied a 'zero tolerance approach'. Rather, the Commissioner considered, as was conceded, that the taking of drugs is a serious issue and would be taken to constitute serious misconduct. Nor am I satisfied that the Commissioner took a punitive approach. A fair reading of his Reasons demonstrates a balancing of the applicant's interests with the public interest, including maintaining the integrity of the Police Force, in the context of admitted serious misconduct 2. The applicant's submission is not made out. Fourth, Fifth and Sixth Submissions – Dismissal Harsh, Unreasonable or Unjust 1. The circumstances leading up to the misconduct and the applicant's good career record are relevant matters in assessing whether the decision to dismiss was unjust, unreasonable or harsh. For the reasons I have already given I do not consider those matters taken separately or together render the decision unjust or unreasonable. The misconduct was serious and, particularly having regard to the applicant's role as a prosecutor, likely to put at risk the public's confidence in the integrity of the Police Force and for that matter, the criminal justice system. 2. One cannot be but sympathetic to the applicant in respect of the circumstances of his parents or indeed those relating to his friend. But the evidence revealed a considered, knowing and repeated breach of the Drug Policy, the Code of Conduct, the Regulation, his Oath of Office and the criminal law. The circumstances referred to do not excuse or explain that behaviour. Moreover, it might have been expected that an officer with such a lengthy career would have been better able to understand the gravity of his actions and the availability of other options through, for example the Employee Assistance Program, to deal with his emotional state. 3. The determination of whether the decision to dismiss the applicant was harsh presents rather more difficulty. As the applicant submitted the decision had its origins in a single random drug test. If the positive result from that test were to be balanced against a long and satisfactory career and the likely result of significant financial hardship flowing from the termination of his employment, it is possible that the sanction of termination would be regarded as harsh. There are several more considerations however, some for and some against that being the ultimate conclusion in this case. 4. To be added to the balance in favour of the applicant is: his admission of using the prohibited drug; his recognition of the seriousness of his misconduct; the personal grief and stress he was suffering as a result of the death of his father and the impact that had had on his mother; the impassioned plea for understanding from his mother in her letter to the Commissioner dated 20 July 2014; the supportive reference from Senior Sergeant Liddle of Police Prosecutions Command; aspects of the measured reference dated 29 July 2014 from then Inspector Heyward; the medical reports from Drs Thesinger and Berman; and his willingness to participate in a rigorous drug testing regime. 5. On the other hand there are factors mitigating the strength of these considerations. It is to be noted that the medical reports refer only to a period following the random drug test. Equally the reference from the Senior Sergeant expresses the opinion that returning to a full time court role in the short term "might be untenable" – a view which tends to support concerns about the integrity of the Police Force. The Inspector's reference refers to her extreme shock at the applicants use of cocaine, expresses her understanding of his personal circumstances but states that she endorses the Drug and Alcohol Policy, the recommendations made by the Complaint Management Team and the Commissioner's comments (which I take to be the comments contained in the s 181D show cause notice to which she refers). 6. There is also the fact that the admission came only at a point when discovery was inevitable and there was no further disclosure (until these proceedings) as to the circumstances which gave rise to his possession and use. This last matter as I have earlier observed seems inconsistent with seeking to persuade the Commissioner that he should be returned to duty as an officer committed to upholding the law. Finally, there is the fact that as an experienced officer working in the role of a Prosecutor he was well placed to understand the gravity of his actions. 7. Balancing all of these factors I conclude that the decision was not harsh. My view in that regard is strengthened by the disclosure in these proceedings that he used cocaine on at least three separate occasions and that he knew the identity of the persons likely to have supplied the drugs. Although he could not specify which person or persons within the group had in fact done so, he had the ability to limit the suspects to a group of seven people or, as he maintained in cross-examination, more likely four people. He has never done so. His cross examination of Acting Superintendent Heyward exposed this weakness in his case. That evidence is set out more fully in paragraph [60] above but some key questions and answers warrant repetition here: Q. Do you say there is a risk that I'm going to use drugs in the future? A. I'm saying there is a risk it would damage the community's expectation about police officers in the Police Force. I say that there is a risk that that damage will ‑ that occurrence will damage the reputation of police in the Police Force. I believe that that risk will damage the reputation of prosecutors in the Police Force. Q. But if I can address you towards the risk in the future, do you say that there is a risk that I will do drugs in the future? A. I can't say yes or no. Q. That I'm going to associate with persons who are accused? A. Bearing in mind the fact that you've never disclosed who these seven people were, who you say it was one of those who supplied you drugs, yes, that risk is still continuing. The question about your continued integrity is still continuing. Q. In relation to those seven persons, when do you say I should have disclosed that? A. Well, do you want to go back to the night first? Q. So on the night, yes? A. And then perhaps any day up until 10am this morning. 1. This passage in the evidence highlights what I have earlier referred to as, and what Ms Raper submitted was, a lack of insight on the part of the applicant. Mr Baker, notwithstanding his long career as a police officer and his lengthy period as a police prosecutor, failed to see that he was, and is, in possession of information which may assist police to identify persons who supply drugs contrary to law. He gave evidence it was more likely that there were four potential suspects rather than seven, because the other three were acquaintances rather than friends, and only friends would make a gift of drugs worth some hundreds of dollars. In so arguing he fails to see that he is likely to be associating with a drug supplier (or suppliers) who is friend, not a mere acquaintance. Again, he did not seem to comprehend that his role as a prosecutor would be compromised by receiving these drugs. If he did not know the identity of the supplier how could he be compromised, he asked rhetorically. The answer was obvious: the person who supplied him knew his identity and role and could use that information against him. That was clearly something which had not occurred to Mr Baker. 2. Ms Raper submitted that the considerations to which I have just referred demonstrated on Mr Baker's behalf a lack of integrity which gave rise to a loss of confidence by the Commissioner. In the circumstances, the public interest in maintaining the integrity of the NSW Police Force is met by Mr Baker's removal. As to institutional integrity she referred to Police Service Board v Morris and Martin (1985) 156 CLR 397 at 412. 3. There are a number of authorities which consider the scope of the term "integrity" as it appears in the Act: see Toshack v Commissioner of Police [2009] NSW IRComm 31; (2009) 181 IR 420 at [44] to [49]; Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 at 469 [72], per Spigelman CJ (with whom Macfarlan and Young JJA agreed); Police Service Board v Morris and Martin (1985) 156 CLR 397 at 412; and Vouden v Commissioner of Police. The following passages from Vouden are apposite to the current considerations and encapsulate key principles from these several authorities: [315] The 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. [316] Integrity 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". [317] The 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 s181E(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). [318] It 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. [319] Reference 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. 1. Applying these principles, I am satisfied that the findings I have outlined above demonstrate that it was open to the Commissioner to conclude both that Mr Baker's integrity and that of the Police Force had been significantly compromised. I am also satisfied that the strength of conviction for that view has been increased by the additional evidence which has emerged in these proceedings. 2. The respondent submitted that public interest considerations weigh heavily against overturning the Commissioner's order. It was submitted: Also set out in your considerations of harshness, necessarily you must take into account the mandatory provisions of review under s 181F, namely, we say, the public interest, which is, the interest in maintaining the integrity of New South Wales police and the fact of the Commissioner making the order. … We say with respect to this in respect to the counterveiling argument of harshness but also public consideration that the nature of Mr Baker's conduct is such that it cannot be said that he has maintained the integrity of the New South Wales police and it cannot be said that by the provision of protective mechanisms in the future that the public interest and maintaining of the integrity of the New South Wales Police can be made out. 1. All of these considerations reinforce my conclusion that the decision to remove him as a police officer was not harsh. 2. I do not accept the applicant's fourth, fifth and sixth submissions. 3. In view of these conclusions I do not need to deal in any further detail with the Respondent's submissions as to the relief sought by the Applicant. Orders 1. I order that the application 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: 06 May 2015