Industrial Relations Commission New South Wales Medium Neutral Citation: Hudson v Commissioner of Police [2016] NSWIRComm 1031 Hearing dates: 23, 24 & 25 March, 21 June 2016 Date of orders: 15 July 2016 Decision date: 15 July 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by Jason Hudson under section 181D of the Police Act 1990 for review of an order of the Commissioner of Police is dismissed Catchwords: POLICE – removal of police officer – s.181D Police Act 1990 – application for review of order of Commissioner of Police – failure to properly investigate a case – failure to promptly identify and declare an association – disclosure of confidential information concerning a covert police licensing operation – failure to seize a small resealable plastic bag containing an off white powder suspected to be a prohibited drug – failure to report discovery to police – making untruthful representations to the Commissioner – giving untruthful evidence in these proceedings – removal not harsh, unreasonable or unjust – application dismissed Legislation Cited: Police Act 1990 Cases Cited: Briginshaw v Briginshaw [(1938) 60 CLR 336 at 362) Commissioner of Police v Eaton ([2013] HCA 2 (8 February 2013) Starr v Commissioner of Police [2001] NSWIRComm 226 (5 October 2001) Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 (5 November 2004) Category: Principal judgment Parties: Jason Hudson (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr J Darams (Applicant) Mr Y Shariff (Respondent) Solicitors: Clayton Utz (Applicant) K&L Gates (Respondent) File Number(s): IRC 250 of 2015 & 2015/00375940 DECISION 1. The applicant, Jason Hudson, has applied to the Commission under section 181E of the Police Act 1990 for a review of an order of the Commissioner of Police ('Commissioner') made pursuant to section 181D of that act on 16 April 2015. The effect of the Commissioner's order was to remove the applicant from the NSW Police Force. The application is for a review of the order on the ground that the removal is harsh, unreasonable or unjust. Background 1. The applicant was accepted into the NSW Police Academy in 2000 and sworn in on 5 January 2002. He initially served at a number of locations in the Barwon Local Area Command ('LAC'), primarily at Moree. 2. In 2006 the applicant transferred to the Blue Mountains LAC. He was initially stationed at Springwood but moved, after a short time, to Katoomba Police Station. 3. The applicant's career in the police force has been something of a mixed bag. 4. The applicant gave evidence that he had received a Commander's Commendation for the arrest of an offender, as well as a letter of appreciation from the Minister of Police for the help and professionalism he displayed towards visitors to Moree who had their motor home broken into and robbed. In addition, the applicant received numerous letters and cards of appreciation from members of the public during his time at Moree. He also received numerous letters of appreciation from the NSW Police Recruitment Branch for his help in recruiting indigenous people into the police force. 5. In 2008 the applicant was contacted by the head of the Aboriginal Employment Programs Unit based at Police Headquarters, Parramatta, and asked if he wanted to do a secondment as the Programs Officer within the unit promoting the NSW Police Force as a preferred employer to indigenous people. The applicant agreed and spent 12 months in that role, working closely with Local Area Commanders and Education Constables, before returning to the Blue Mountains LAC, initially at Springwood and then returning to Katoomba. 6. On the other side of the ledger, the applicant's disciplinary record is not good. Issues going back as far as 2005 have resulted in the applicant being counselled over a range of matters, placed on a number of Conduct Management Plans, issued with a Local Area Commander's Warning Notice and issued with a Region Commander's Warning Notice. Section 181D Notice and Order 1. On 1 September 2014 the applicant was served with a Notice pursuant to section 181D of the Police Act. The Notice contained four allegations which can be summarised as follows: 1. Failure on the part of the applicant to properly investigate a case which had been allocated to him. 2. Failure to promptly identify and declare an association with a licensee of licensed premises, Mr John Cope. 3. Disclosure of confidential information to Mr Cope, in particular, information concerning a covert police licensing operation targeting Mr Cope's bar. 4. Failure to seize a small resealable plastic bag containing an off white powder that the applicant found in his partner's wallet and suspected to be a prohibited drug, and failure to report this discovery to police. 1. On 21 October 2014, the applicant provided to the Commissioner a comprehensive response to the section 181D Notice. 2. On 16 April 2015, the Commissioner issued an Order under section 181D removing the applicant from the NSW Police Force. The Order was accompanied by a Statement of Reasons in which each of the four allegations was found by the Commissioner to have been sustained. Section 181F Proceedings on a review 1. Section 181F(1) of the Police Act provides that, in conducting a review of a Commissioner's removal Order, the Commission must: 1. firstly, consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, 2. secondly, consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, 3. thirdly, consider the case presented by the Commissioner in answer to the applicant's case. 1. Subsection 181F(2) provides that the applicant has, at all times, the burden of establishing that the removal is harsh, unreasonable or unjust. However, the generally accepted approach in this jurisdiction has been that, once an applicant establishes a case for the Commission's intervention, then a burden may shift to the Commissioner to respond to relevant aspects of that case (Starr v Commissioner of Police [2001] NSWIRComm 226 (5 October 2001) per Walton VP at [162]-[184]). This approach may need to be revisited in light of certain observations made by the High Court in Commissioner of Police v Eaton ([2013] HCA 2 (8 February 2013) per Heydon J at [26]; per Crennan, Kiefel and Bell JJ at [69]). 2. In any event, the outcome of this case does not depend upon which party the burden of proof falls. Even if it were the case that the Commissioner bore the onus of proving allegations (1), (2) and (3), for the reasons set out below, that burden has been satisfied. Allegation (4) is in a different category, as is also discussed below. 3. In conducting the review, the Commission must have regard to: 1. the interests of the applicant, and 2. 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). 3. (subsection 181F(3)) 1. In a matter such as this, the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted (Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 (5 November 2004) at [134]). It is open to the Commission, having conducted a fresh and independent review, to concur with the findings and order made by the Commissioner, or to make different findings and orders. Allegation (1) – failure to properly investigate a crime 1. On 2 January 2013 the applicant was working at Springwood Police Station on restricted duties following a work related injury sustained in August 2012. At that time the applicant was unable to attend locations outside the police station to investigate crime. On that date the loss prevention officer from a local store attended the police station and reported to the applicant the theft of $1,000, allegedly committed by another employee of the store. The applicant created a record of this report on the Computerised Operational Policing System ('COPS') database as an event E10168254. This led to an investigation which was created into a case C50068214 on 18 January 2013. Shortly thereafter this case was allocated to the applicant for further inquiries. From that time the applicant was stationed back at the Katoomba Police Station. The applicant was certified fit to perform full operational duties without restrictions from 23 January 2013. 2. On 6 February 2013 the applicant commenced Stage One of a six month Remedial Performance Plan as a consequence of deficiencies in previous investigations conducted by the applicant. On 27 March 2013 the applicant was placed on an Interim Management Plan as a consequence of a decision by Superintendent Darryl Jobson, the Commander of the Blue Mountains LAC, to investigate the matter which is the subject of allegation (4) in these proceedings. 3. Between 15 February and 17 May 2013 the applicant received a total of six online comments from supervisors directing him to conduct inquiries and update the COPS database with the progress of the investigation. The dates of these directives were 15 February, 1, 6 and 27 March, 17 April and 17 May 2013. During that period the applicant took no steps to investigate the case, other than leaving a message for the store manager on 1 March 2013. The COPS database only contains one action created by the applicant on 3 March 2013, where he states that arrangements had been made to obtain witness statements. However, this COPS entry fails to identify the witnesses which the applicant had spoken to, or the precise arrangements which had been made. 4. In his response to the section 181D Notice the applicant effectively conceded that his actions were contrary to the Police Act, the NSW Police Force Code of Conduct and Ethics, and the NSW Police Force Handbook. However, the applicant claimed that, when he created COPS event E10168254, he was on restricted duties and that it should have been turned into a case and allocated to an officer not on restricted duties. 5. The applicant also claimed that, as a consequence of the shift pattern he worked throughout this four month period, he had only limited opportunities to pursue this investigation. He further claimed that he did not deliberately disobey or ignore a senior officer. 6. The findings of the Commissioner, in relation to this allegation, were as follows: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were allocated Case C50068214 on 18 January 2013, being an investigation into the offence of 'larceny by clerk or servant', and that you failed to promptly and diligently progress this investigation between 18 January 2013 and 18 May 2013. You failed to comply with the directions of senior officers by failing to promptly and diligently address the comments and action items included on Case C50068214 by senior officers. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Handbook. Section 7 of the Police Act 1990 relevantly states: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (e) strives for citizen and police personal satisfaction, Point 2 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must act with care and diligence when on duty. As an employee of the NSW Police Force you must carry out your work professionally. This means paying all due care, attention and diligence to your duties, fulfilling them to the best of your ability and supporting other employees to do the same. 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 and effectively you need to understand and act in accordance with the standards that govern your duties. Point 5 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with any lawful and reasonable direction given by someone in the NSW Police Force who has the authority to give the direction. As an employee you will, from time-to-time, be subject to direction from others. Compliance with lawful and reasonable directions is essential for ensuring the NSW Police Force operates safely and effectively. The NSW Police Force Handbook relevantly states: Investigation Priorities Conduct a thorough initial investigation and gather all evidence. Ensure all information is recorded on COPS and exhibits are recorded in EFIMS. Examine all COPS entries and case file materials to determine whether an investigation should be continued. Take into account the broad principles and any local criteria when allocating available resources or seeking more. Record your decision and reason in the Work priority Section of COPS Case Management System (CMS). 1. The Commissioner expressed his concern that the applicant appeared to have deliberately ignored his responsibilities over a significant period of time. The Commissioner expects all sworn officers to discharge their duties with the highest standards of care and diligence, and to comply with the directions of senior officers in regards to the work to be performed. Case for the applicant 1. Whilst the applicant disputed that he had deliberately ignored his responsibilities, he accepted that his performance in relation to this investigation, and other matters during his employment, could have been better. 2. The applicant claimed that the structure of his roster during the period March through to May 2013 limited his ability to pursue this investigation. 3. The applicant also claimed that, during the period between January and April 2013, he was suffering considerable stress, both in his personal and professional life, which he believed affected his performance at work. The applicant was dealing with issues associated with the breakdown of his previous de-facto relationship. 4. Further, the applicant believed that he was being marginalised and discriminated against at work by reason of his aboriginality. 5. Despite these claims, the applicant accepted that his performance was below the necessary standard required of a police officer 6. Further, it was claimed that at the relevant time, February to May 2013, the applicant was part way through a performance management process which was specifically designed and implemented in order to help him improve his performance. He was unable to complete this process due to sick leave taken by him from 20 May 2013 and his subsequent suspension prior to his removal from the police force. Determination with respect to allegation (1) 1. I reject the submission put on behalf of the applicant to the effect that the findings of the Commissioner were, in some way, unfair because consideration was not given to the fact that the applicant was part way through a performance management process which he was unable to complete. On the contrary, the fact that the applicant, on 6 February 2013, had commenced Stage One of a six month Remedial Performance Plan as a consequence of deficiencies in previous investigations conducted by him, should have instilled in him the importance of being more than diligent in the criminal investigation which had been assigned to him. The fact that he was so lax in the conduct of this investigation discloses an attitude which is incompatible with his continuation as a member of the NSW Police Force. 2. I concur with the findings and reasons of the Commissioner in relation to this allegation. 3. Given the applicant's poor performance and disciplinary record, his failures in relation to this allegation, without more, justified his removal from the police force. Allegation (2) - failure to promptly identify and declare an association 1. This allegation is that the applicant failed to promptly identify and declare his association with John Cope, the licensee of the Station Bar and Wood Fired Pizza ('the Station Bar'). 2. Following the breakdown of the relationship between the applicant and his former de-facto partner, on 18 March 2013 the applicant moved out of the house they had been sharing and moved into a spare room in the premises occupied by Mr Cope and his partner. 3. On 21 March 2013 the applicant had a meeting with A/Superintendent Kenneth Schack-Evans to discuss his personal circumstances. The applicant informed the A/Superintendent that he was moving in with Mr Cope and that Mr Cope was the licensee of the Station Bar. Further, the applicant told the A/Superintendent that this living arrangement was for the "short term" only. 4. In relation to this allegation the Commissioner noted that the evidence suggested that the applicant appeared to have known and associated with Mr Cope for several years prior to 18 March 2013, while being aware that he was the licensee of the Station Bar. Further, despite the applicant indicating that he only intended to live with Mr Cope for the "short term", it appeared that he continued to live with Mr Cope for at least six months after advising A/Superintendent Schack-Evans of the change in his living arrangements. 5. In his response to the section 181D Notice the applicant stated as follows: 41 I strongly refute any allegation that I knew John Cope on a personal basis for years or even months prior to notifying the Command of my intension to reside in a property where he also resided. I would describe my relationship with John Cope prior to submitting my report to the Command as merely a licensee of a local bar located in my patrol. The relationship was no different to any other licensee in the Command. I know all of them on a first name basis, and I have always acknowledged their presence both on and off duty. …………………….. 44 Prior to submitting my report, I did not socialise with John Cope off duty, I did not attend his residence off duty, I did not attend any function with him, I did not drive his vehicle, nor did he drive mine, and if I did attend his bar it was not due to an invitation by him but with friends and family not connected to him. It is well known among my family and friends that I very seldom drink alcohol and thus have no reason to attend pubs and clubs. I reject the suggestion that I frequent the Station Bar, or for that matter, any other licensed premises in the Command or anywhere else. 45 I disagree that I have had a long-term relationship with John Cope. There is no direct evidence in the 181D Notice and supporting documents apart from conjecture and hearsay by persons who have doubtful credibility and possible underlining motives for alleging there was a relationship. 1. In response to that aspect of this allegation concerning the applicant's representation to A/Superintendent Schack-Evans that his new living arrangement was for the "short term" only, the applicant claimed that, once the subject matter of allegation (3) was raised with him, he was informed that his Commander no longer wanted him to work in the Blue Mountains LAC. However, according to the applicant, he was not offered a suitable location to which he could comfortably and financially move. 2. The Commissioner, in relation to this allegation, stated, in the Statement of Reasons which accompanied the section 181D(1) Order, as follows: I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to promptly identify and declare your association with Mr John Cope. From this regard, I note that the evidence suggests that you appear to have known and associated with Mr Cope for several years prior to 18 March 2013, while being aware that he was the licensee of the 'Station Bar and Wood Fired Pizza' at Katoomba. Further, despite indicating that you only intended to live with Cope for the 'short term', it appears that you continued to live with Mr Cope for at least six months after advising A/Superintendent Schack-Evans of the change in your living arrangements. In the circumstances, I find that your conduct was contrary to the Police Act 1990, NSW Police Force Code of Conduct and Ethics and the NSW Police Force Declarable Associations Policy. Section 7 of the Police Act 1990 relevantly states: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all… 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 and effectively you need to understand and act in accordance with the standards that govern your duties. Point 7 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must take reasonable steps to avoid conflicts of interest, report those that cannot be avoided and co-operate in their management. The NSW Police Force must effectively manage conflicts of interest. This ensures we provide the community with fair and impartial services, maintain public confidence, prevent corruption and manage allegations of misconduct. You are responsible for identifying and avoiding conflicts of interest that relate to your employment with the NSW Police Force. These conflicts may be actual, perceived or potential. You must report in writing any conflict of interest that cannot be avoided and co-operate in managing it appropriately. All conflicts of interest will be managed in favour of the public interest. The NSW Police Force Declarable Associations Policy relevantly states: A declarable association exists when an individual is associated (to varying degrees) with a person, group or organisation that is involved in (or perceived to be involved in) activity that is incompatible with activity conducted on behalf of the NSW Police Force. These associations create a conflict of interest between the individual's responsibility to the NSW Police Force and their personal relationships/private interests. The NSW Police Force is committed to managing declarable associations in the public interest. This commitment requires that all individuals engaged in activity on behalf of the NSW Police Force: • identify declarable associations • avoid declarable associations where possible • seek advice if uncertain whether a declarable association exists • report any declarable association regardless of whether or not it can be avoided • cooperate in the management and resolution of declarable associations • report any noticeable change in circumstances relating to a managed declarable association. Case for the applicant 1. In his primary affidavit tendered in the proceedings, the applicant stated as follows: 67 I deny having known or associated with Mr Cope for several years prior to 18 March 2013. I deny having maintained any other relationship with Mr Cope prior to 18 March 2013 which warranted disclosure to the Police. …………………… 70 Prior to 18 March 2013, Mr Cope was simply another member of the general public to me – we had no special relationship. I enjoy drinking coffee and would often visit a café in Katoomba called The Savoy. Sometimes I would visit the Cassiopeia, which is another place I like to visit for coffee. I would make an effort to meet and greet the other patrons at the café as well. I strongly believe that it is important for members of the police to have positive interactions with members of the community. 71 I ran into Mr Cope a few times at the café and we would say "hello" to each other. We would also have brief conversations about the general goings on in our lives. I recall that in late 2012, I told Mr Cope of some of the personal issues that I was undergoing. Although I broke up with Ms Harris (my ex-partner) in April 2012, I continued to live with her and we would, on occasion, have arguments, one of which, almost turned violent. Mr Cope said words to the effect of: "I know how tough it can be having those sorts of issues. Fi and I recently bought a new house and we've got a spare room downstairs. You're more than welcome to come and stay for a while if things get too tough." 72 I responded with words to the following effect: "Thanks for the offer. I'll certainly keep it in mind but I hope things will improve with Katrina and I. If I need to move out, I'll let you know". ……………………… 81 In accordance with the Declarable Associations Policy, an officer is required to declare a relationship if there is or could be a perceived perception from someone or a group that a relationship could be seen as a conflict of interest. Prior to 18 March 2013, my association with Mr Cope was limited. I did not see any reason to disclose a relationship before that time, as one did not exist. As I say above, my relationship with Mr Cope was no different than the one that I had with a number of other business owners at that time, including licensees. I treated Mr Cope the same way that I would treat any licensee in the Katoomba area. However, following 18 March 2013, when I decided that I would move in with Mr Cope, I thought this act could be seen as a conflict of interest and, in keeping with the Declarable Associations Policy, I reported the association. It was my understanding that by declaring the possible conflict of interest to the Command, I was ensuring the Command was aware of it and could direct me to not move in, if required. 1. Superintendent Jobson gave the following evidence: 94 In relation to paragraph 81 of the Hudson Affidavit, Mr Hudson's suggestion that a relationship did not exist between him and Mr Cope before 18 March 2013 is not correct. It is apparent from Mr Hudson's affidavit that they were meeting for coffees and discussing details of Mr Hudson's personal life. As Mr Cope is a liquor licensee, this association placed Mr Hudson in a position of conflict. As such, the association should have been declared immediately. However, Mr Hudson failed to do so until 18 March 2013. Accordingly, Mr Hudson's understanding of the NSW Police Force Procedures to Manage Declarable Associations – Individual Responsibilities is not correct. 1. In his reply affidavit, the applicant stated: 11 In reply to paragraph 94, I repeat paragraph 70 of my First Affidavit. I deny that I intentionally met with Mr Cope for coffee prior to 18 March 2013. Any interactions that I had with Mr Cope were purely incidental and would only occur while I was out in the Katoomba area walking my dog and having coffee at my local café. Mr Cope is a resident in the Katoomba area. It is not unusual to bump into other locals in the street. Prior to 18 March 2013, I had never actively sought Mr Cope's company. 1. During the applicant's cross-examination, the following exchange occurred: Q. You're telling this commission under your affirmation that Mr Cope was simply another member of the general public and you had no special relationship. Do you see that? A. Yep, pretty much. Q. At paragraph 71 what you're saying is that you ran into Mr Cope a few times? A. Yep. Q. ie a handful of occasions, correct? A. Yeah, I don't remember how many times, but yeah. Q. But what you're trying to convey is that these interactions were sporadic, correct? A. Yes. Q. And they were spontaneous? A. Yeah. Q. Your dealings with Mr Cope you're trying to say were random, spontaneous interactions, correct? A. Pretty much, yeah. Q. Bumping into each other - sorry, limited to bumping into each other at the café, correct? A. Yeah. 1. Mr Cope gave evidence that he first got to know the applicant in or about 2010. He gave similar evidence to that given by the applicant about the nature of their relationship and dealings. Determination with respect to allegation (2) 1. Unhappily for the applicant, his own mobile phone records and those of Mr Cope, which were tendered into evidence in the proceedings, told a very different story to the one put forward by the applicant and Mr Cope as to the sporadic, random and spontaneous nature of their encounters prior to 18 March 2013. These records were not before the Commissioner when he was considering this allegation against the applicant. 2. During the period 12 May 2012 to 18 March 2013 the applicant called or sent an SMS text message to Mr Cope's mobile phone on 314 occasions. Apart from retrieving voicemail messages, this made Mr Cope's mobile phone number the tenth most frequently contacted number from the applicant's mobile phone during this ten month period. 150 of these contacts occurred before 18 March 2013. 3. At paragraph 4.7(b) of the applicant's final written submissions the following analysis of the applicant's calls and text messages to Mr Cope is set out: 2012 May…….........3 over 2 days June……........8 over 3 days July…………..19 over 9 days August……….11 over 5 days September…...6 over 5 days October……...13 over 6 days November……27 over 9 days December.......6 over 4 days 2013 January………10 over 3 days February……..27 over 11 days To 18 March…20 over 6 days 1. It is difficult to accept that this pattern of contacts by the applicant with Mr Cope could be described as sporadic, spontaneous and random. But this analysis does not tell the whole story. During the same period, 12 May 2012 to 18 March 2013, there were a total of 50 calls or MMS text messages to the applicant's mobile phone from Mr Cope's mobile phone. 2. If the contacts which Mr Cope initiated are included, the analysis would look follows: 2012 May……..........4 over 3 days June……........17 over 4 days July…………..29 over 12 days August……….13 over 6 days September…...10 over 5 days October……....16 over 6 days November……32 over 10 days December.......9 over 5 days 2013 January………13 over 4 days February……..36 over 114 days To 18 March…21 over 6 days 1. Over this period of approximately ten months there were a total of 200 phone calls or text messages exchanged between the applicant and Mr Cope. This equates, on average, to 20 such contacts per month. 2. The calls and text messages occurred at all hours of the day and night. The calls were of varying duration, on occasions lasting between five and twelve minutes. 3. I reject the submission put on behalf of the applicant to the effect that the statements made about his relationship with Mr Cope, both in his response to the Commissioner and in these proceedings, reflected the applicant's "subjective view" of that relationship. The applicant put forward a number of objective criteria against which his relationship with Mr Cope could be considered: • I strongly refute any allegation that I knew John Cope on a personal basis for years or even months prior to notifying the Command of my intension to reside in a property where he also resided. • Mr Cope was merely a licensee of a local bar located in my patrol. • The relationship was no different to any licensee in the Command. • I disagree that I have had a long-term relationship with John Cope. • Prior to 18 March 2013, Mr Cope was simply another member of the general public to me – we had no special relationship. • …my relationship with Mr Cope was no different than the one that I had with a number of other business owners at that time, including licensees. • Any interactions that I had with Mr Cope were purely incidental and would only occur while I was out in the Katoomba area walking my dog and having coffee at my local café. • Mr Cope was simply another member of the general public and you had no special relationship. Agreed to by the applicant. • Your dealings with Mr Cope you're trying to say were random, spontaneous interactions. Agreed to by the applicant On any view, the number and frequency of phone and text message contacts between the applicant and Mr Cope, prior to 18 March 2013, completely contradicts the above statements. I find these statements by the applicant to be untruthful. 1. I find the evidence given by Mr Cope to similar effect to also be untruthful. 2. I concur fully with the Commissioner's finding that the applicant failed to promptly identify and declare his association with Mr Cope. 3. The applicant's culpability in relation to this matter is compounded by the making of untruthful representations to the Commissioner, and by the giving of untruthful evidence in these proceedings, as to the nature of his relationship with Mr Cope prior to 18 March 2013. 4. These matters are sufficient, without more, to justify the removal of the applicant from the police force. Allegation (3) – disclosure of confidential information The covert operation 1. It was alleged that the applicant tipped off Mr Cope about a covert police operation which targeted his bar, the Station Bar, and the Katoomba Family Hotel on the evening of 11 May 2013, using two plain clothes female police officers, Sergeant Kylie Hedges and Senior Constable Rochelle Blue. Such a tip off, if it occurred, would have nullified the utility of the covert operation and could have potentially placed the two plain clothes officers in harm's way. The applicant acknowledged that, if he had engaged in such conduct, he should not remain in the police force. 2. In his Statement of Reasons the Commissioner relied upon claims by Sergeant Hedges and Senior Constable Blue that they had been "made" by Mr Cope, that is identified as plain clothes police officers, shortly after entering the Station Bar, after which Mr Cope walked across the road and was seen to be in conversation with security staff at the Harp and Fiddle Bar, another licensed establishment in Katoomba. 3. The Commissioner also relied upon a subsequent exchange of text messages between the manager of the Harp and Fiddle Bar, Kelly Walls, and Senior Constable Christopher Jayne, who had been involved in the covert operation as back up for the two plain clothes officers. In this exchange Ms Walls advised Senior Constable Jayne that her security staff had been tipped off about an "operation" by Mr Cope who, in turn, had been tipped off by his "roommate", the applicant. 4. In his Statement of Reasons the Commissioner stated: I find on the balance of probabilities, although having regard to the seriousness of the allegation, that you disclosed confidential information of the NSW Police Force to John Cope and in particular, you informed him of a covert Police licensing operation targeting the 'Station Bar and Wood Fired Pizza' at Katoomba. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2008, the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Declarable Associations Policy. Section 7 of the Police Act 1990 relevantly states: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which places integrity above all, … (h) ensures that authority is exercised responsibly. 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. … You must always act lawfully and never in a way that brings, or is likely to bring discredit to the NSW Police Force. You must act honestly, truthfully and with integrity in all your dealings with other employees and the public. 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 and effectively you need to understand and act in accordance with the standards that govern your duties. Point 7 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must take reasonable steps to avoid conflicts of interest, report those that cannot be avoided and co-operate in their management. The NSW Police Force must effectively manage conflicts of interest. This ensures we provide the community with fair and impartial services, maintain public confidence, prevent corruption and manage allegations of misconduct. You are responsible for identifying and avoiding conflicts of interest that relate to your employment with the NSW Police Force. These conflicts may be actual, perceived or potential. You must report in writing any conflict of interest that cannot be avoided and co-operate in managing it appropriately. All conflicts of interest will be managed in favour of the public interest. Point 8 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy. The community places significant trust in the NSW Police Force to appropriately manage confidential information. … The [confidential] information can only be used and/or disclosed for lawful purpose and in accordance with legislative requirements and NSW Police Force policy. Before disclosing [confidential] information you must be satisfied that you are authorised to release the information. Point 9 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must not make improper use of their position or NSW Police Force information or resources. Employees of the NSW Police Force hold positions of authority and have access to a range of resources and confidential information. Use of any of these must only be for lawful purposes and in the course of your duties. You must not improperly use your position, or access NSW Police Force resources and information, for personal gain or the gain of any other person or organisation. Clause 75 of the Police Regulation 2008 relevantly states: 75 Confidential information (1) A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. (2) In particular, a member of the NSW Police Force or a student of policing must observe the strictest secrecy in regard to NSW Police Force business, and is forbidden to communicate without proper authority in any way to any person outside the NSW Police Force any information in regard to police or other official business connected with his or her duties, or which may come to his or her knowledge in the performance of them. 1. The applicant denied that he was aware of the covert operation on 11 May 2013 or that he warned Mr Cope about it. Mr Cope denied that he had been advised of the covert operation or that he was aware of the presence of plain clothes police officers in the Station Bar on that evening. He explained his conversation with the security staff at the Harp and Fiddle Bar on the basis that he had earlier seen two large black trucks, which looked like the black riot trucks used by police, driving down Bathurst Street, Katoomba. These vehicles are clearly marked "PUBLIC ORDER & RIOT SQUAD" and are known as PORS vehicles. There was evidence that two such vehicles were active in the Blue Mountains area on the evening of 11 May 2013. Mr Cope claimed that he assumed that "there must be a police operation going on or something" and advised the security staff at the Harp and Fiddle Bar accordingly. 2. There is no direct evidence to support the allegation that the applicant tipped off Mr Cope about the covert police operation targeting the Station Bar. All of the evidence is circumstantial in nature. 3. The three most significant areas of circumstantial evidence are: 1. Evidence as to the time at which Senior Constables Tony Kustro and Jayne, of the Blue Mountains LAC, and Sergeant Hedges and Senior Constable Blue, left the Katoomba Police Station on 11 May 2013, being at or around 6.30pm, to conduct the covert operation. The timing of their departure is significant because of the evidence that they were seen leaving by the applicant and evidence that a text message was sent from the applicant's mobile phone to Mr Cope's mobile phone at 6.31pm, followed by a call from Mr Cope's mobile phone to the applicant's mobile phone at 6.34pm, which lasted two minutes. 2. Evidence that, shortly after Sergeant Hedges and Senior Constable Blue entered the Station Bar, they were "made" by Mr Cope as plain clothes police officers. 3. Evidence that Mr Cope told the security staff at the Harp and Fiddle Bar about the undercover police in his bar and that the tip off about the operation had come from Mr Cope's "roommate", being the applicant. Agreed Statement of Facts 1. According to an Agreed Statement of Facts, which became an exhibit in the proceedings, the covert operation was organised by Senior Constable Kustro, the Licensing Officer at Blue Mountains LAC. Sergeant Hedges and Senior Constable Blue, who were attached to the Parramatta and Hawkesbury LACs respectively, attended Katoomba to perform duties in plain clothes inside the licensed premises. Senior Constable Jayne worked on the operation as back up available to the plain clothes officers, if they required assistance. 2. At around 6.00pm Senior Constable Kustro conducted a briefing for the operation with Sergeant Hedges, Senior Constable Blue and Senior Constable Jayne. At around 6.30pm the four officers departed Katoomba Police Station to conduct the covert operation. The applicant observed the officers departing the police station. At around 10.00pm Sergeant Hedges and Senior Constable Blue arrived at the Station Bar and commenced performing plain clothes duties. Mr Cope was working inside the Station Bar. 3. During final submissions counsel for the applicant withdrew the applicant's agreement to the time at which the four officers left the police station as being at or around 6.30pm. 4. Ms Walls was, at the time, the manager of the Harp and Fiddle Bar within the Carrington Hotel in Katoomba. As at 11 May 2013 Ms Walls was friends with Senior Constable Jayne. 5. As at May 2013 Robert Morris was a contractor working for a company engaged by the Carrington Hotel to perform security at the front door of the Harp and Fiddle Bar. Mr Morris was working on the front door to the bar on 11 May 2013 along with two other security personnel, Mark Manning and Ahmed Masri. At 10.23pm CCTV footage from the Harp and Fiddle Bar shows Mr Cope at the front entrance of the bar with Messrs Morris, Manning and Masri. 6. At around 11.00pm Sergeant Hedges and Senior Constable Blue exited the Station Bar and terminated the covert operation. Between 11.32pm and 1.19am the next morning Ms Walls and Senior Constable Jayne exchanged several text messages. In that exchange Ms Walls advised Senior Constable Jayne that Mr Cope had warned Mr Morris that he (Cope) had been told about the operation by his "roommate", the applicant. Ms Walls later advised Senior Constable Jayne that the applicant was seen at the Station Bar and told Mr Cope to close up. 7. At around 12.15am the applicant was recalled to Katoomba Police Station where Sergeant Hedges put an allegation to the applicant that he had disclosed the covert operation to Mr Cope. The applicant denied the allegation. Sergeant Kylie Hedges 1. Sergeant Hedges gave evidence by way of an affidavit sworn on 6 November 2015 that she arrived at Katoomba Police Station shortly before 6.00pm on 11 May 2013. During the briefing by Senior Constable Kustro she and Senior Constable Blue were fitted with covert cameras. At around 6.30 to 6.45pm Sergeant Hedges and Senior Constables Kustro, Blue and Jayne left Katoomba Police Station and were driven in an unmarked car by Senior Constable Jayne to a location away from the venues which were the targets of the covert operation. 2. At around 7.00pm Sergeant Hedges and Senior Constable Blue attended the Family Hotel. Senior Constables Kustro and Jayne remained in the car. 3. At around 10.00pm Sergeant Hedges and Senior Constable Blue departed the Family Hotel. Shortly after, they entered the Station Bar, sat down at a table near a window which looked out over Bathurst Street and discussed what drinks to buy. Sergeant Hedges recognised Mr Cope. Mr Cope walked directly to the table where the two officers were sitting and "he looked at me intently". Mr Cope stood close to Sergeant Hedges and began wiping the table before returning to the bar area. Sergeant Hedges observed a number of other empty tables with used glasses and spilled liquid on them. Sergeant Hedges found Mr Cope's actions to be very unusual and suspicious. She formed the impression that Mr Cope knew that Senior Constable Blue and her were plain clothes police officers and that he was trying to intimidate them. Despite this, the two officers continued with their plan. Senior Constable Blue went to the bar to get drinks for the two of them. 4. Shortly after, Sergeant Hedges observed Mr Cope walking across Bathurst Street to the Harp and Fiddle Bar where he had a conversation with two or three security staff near the front door to that venue. The conversation lasted around five to ten minutes. Sergeant Hedges told Senior Constable Blue that she suspected that Mr Cope was informing the security guards that she and Senior Constable Blue were plain clothes police officers conducting a licensing related operation. Sergeant Hedges' concern for their safety increased. She then observed Mr Cope walk back across Bathurst Street and return to the bar area in the Station Bar. 5. The two officers remained at the Station Bar until around 11.00pm but detected no criminal offences or licensing breaches during that period. Sergeant Hedges then terminated the operation and they left the bar. They were driven back to Katoomba Police Station by Senior Constable Jayne. Senior Constable Kustro was also in the car. Sergeant Hedges told the two officers that she was surprised that Mr Cope had identified her and Senior Constable Blue and had tried to stand over them. 6. While they were in the vehicle either Senior Constable Kustro or Senior Constable Jayne told Sergeant Hedges that they had received text messages from a woman working at another licensed venue suggesting that the operation had been compromised. Senior Constable Kustro then told Sergeant Hedges that he suspected that the person who had compromised the operation was the applicant who was living with Mr Cope. 7. Upon returning to the Katoomba Police Station, Sergeant Hedges was shown the text messages between Ms Walls and Senior Constable Jayne. Sergeant Hedges asked the Duty Officer and the other supervising Sergeant on duty to recall the applicant to the station. 8. When the applicant returned Sergeant Hedges put to him the she and Senior Constable Blue had reason to believe that he had compromised the operation by alerting Mr Cope. The applicant denied the allegation. 9. Annexed to Sergeant Hedges' affidavit were a report she had prepared on 12 May 2013 and a written statement to police which she had made on 24 July 2013. The contents of both of these documents are broadly consistent with the contents of her affidavit. 10. Under cross-examination, Sergeant Hedges conceded that she and Senior Constable Blue may have arrived at the Family Hotel around 7.15pm having left the police station around 7.00pm. 11. Sergeant Hedges also acknowledged that she held suspicions about Mr Cope, before she went to the Station Bar, that he may have been involved in drug activity. Sergeant Hedges agreed that she and Senior Constable Blue remained in the Station Bar for 55 minutes after the time when they believed that their cover had been blown, despite the very real risks to which they were exposed. 12. Sergeant Hedges also accepted that she might be wrong about Mr Cope knowing that she and Senior Constable Blue were plain clothes police officers. Senior Constable Rochelle Blue 1. Senior Constable Blue swore an affidavit on 23 October 2015 in which she stated that, on 11 May 2013, she arrived at Katoomba Police Station at around 6.00pm after which Senior Constable Kustro conducted a briefing at which Sergeant Hedges and Senior Constable Jayne were also present. The licensed premises which were to be the subject of the operation were the Katoomba Family Hotel and the Station Bar. The briefing commenced shortly after 6.00pm and lasted about half an hour. After the briefing, Senior Constable Blue and Sergeant Hedges waited around the police station until it was time to commence the operation. 2. At around 7.30pm Sergeant Hedges and Senior Constable Blue left the Katoomba Police Station and travelled in an unmarked police vehicle with Senior Constables Kustro and Jayne. This is approximately 45 to 60 minutes later than the time Sergeant Hedges stated that they left the police station. The two plain clothes officers attended the Katoomba Family Hotel and remained there for nearly two hours before moving to the Station Bar where they arrived at around 9.48pm. 3. Senior Constable Blue's evidence as to what happened while they were in the Station Bar was generally consistent with the evidence of Sergeant Hedges but with some notable discrepancies. Senior Constable Blue stated that, before they were approached by Mr Cope, Sergeant Hedges went to the bar, ordered drinks and returned with them to the table. 4. Senior Constable Blue did not give evidence that Mr Cope returned to the Station Bar, after talking to the security staff at the Harp and Fiddle Bar, before she and Sergeant Hedges left. Further, she could not recall if they were informed by Senior Constable Jayne about the text messages he received from Ms Walls, during the return trip to the station or after they arrived back there. 5. In a written statement to police by Senior Constable Blue, made on 17 May 2013, she nominated the time of leaving the Katoomba Police Station on 11 May 2013 as about 7.30pm, and the time of returning to the police station as about 10.30pm. She stated that the conversation with Senior Constable Jayne about the text messages from Ms Walls occurred at the police station. 6. Under cross-examination Senior Constable Blue confirmed that Mr Cope had not returned to the Station Bar before she and Sergeant Hedges left the bar. 7. Neither Senior Constable Blue nor Sergeant Hedges gave evidence that they were seen by the applicant when they were leaving Katoomba Police Station to conduct the covert operation. Senior Constable Tony Kustro 1. According to Senior Constable Kustro, on 11 May 2013 he, Sergeant Hedges and Senior Constables Blue and Jayne left Katoomba Police Station at around 6.20pm – 6.30pm. In his police notebook, which he wrote up early on the morning of 12 May 2013, Senior Constable Kustro made the following entry: "Commence op 8.20pm". In his evidence in chief Senior Constable Kustro said the time should have been recorded as 6.20pm, not 8.20pm. 2. Senior Constable Kustro stated that he and the other three officers were seen leaving the police station by the applicant. 3. Senior Constable Kustro put the time that the two plain clothes officers left the Family Hotel at around 9.30pm. At around 10.00pm the two officers indicated that they had arrived at the Station Bar. Based on a text message from Sergeant Hedges informing him about Mr Cope cleaning their table, Senior Constable Kustro considered that it was likely that Mr Cope knew that the two officers were plain clothes police. At around 11.00pm he decided to terminate the operation. The two plain clothes officers returned to the unmarked vehicle and were driven back to Katoomba Police Station. 4. Back at the station Sergeant Hedges informed Senior Constable Kustro that Mr Cope had walked over to the security guards at the Harp and Fiddle Bar and had a conversation with them. 5. At around 11.30pm Senior Constable Kustro was approached by Senior Constable Jayne who indicated that he had received a text message from Ms Walls. The content of the text message suggested that the Station Bar had warned the Harp and Fiddle Bar about a police operation and the Station Bar was in the process of closing for the night. In Senior Constable Kustro's experience the Station Bar usually closed around 2.00am every Saturday night/Sunday morning. Senior Constable Jayne then informed Senior Constable Kustro that he had received a text message suggesting that Mr Cope had become aware of the operation through his roommate. Senior Constable Kustro knew this person to be the applicant. Senior Constable Kustro was not present when Sergeant Hedges put the allegation to the applicant. 6. In a written statement to police made by Senior Constable Kustro on 30 July 2013, he did not record the time on 11 May 2013 when he and the other three officers left Katoomba Police Station. He did, however, record that they were seen leaving by the applicant and that he said to Senior Constable Jayne "Well, that was bloody suss". 7. In that statement Senior Constable Kustro stated that for "the next three (3) hours" the two plain clothes officers attended the Katoomba Family Hotel and the Station Bar. They arrived at the latter premises at approximately 10.00pm. The operation was completed at approximately 11.00pm and they returned to the police station. Senior Constable Kustro also recorded that Sergeant Hedges told him that she observed Mr Cope walk across the road and engage in a conversation with members of the Carrington Hotel's security staff. Upon Mr Cope's return he approached the two plain clothes officers and commenced to wipe down the table. 8. Under cross-examination Sergeant Kustro initially confirmed that the time between the four officers leaving the police station and arriving back there at 11.30pm was three hours. He later stated "No, that's not correct. I didn't return back to the station after three hours". Senior Constable Christopher Jayne 1. In his affidavit Senior Constable Jayne did not specify a time on 11 May 2013 when he and the other three officers departed Katoomba Police Station, but he did say that it was after the briefing by Senior Constable Kustro which commenced at around 6.00pm and was "fairly short". 2. As the four officers left the station, Senior Constable Jayne noticed that the applicant looked at them. Senior Constable Jayne knew, at that time, that the applicant was residing with Mr Cope. Senior Constable Jayne drove the other three officers to the staff car park of the Carrington Hotel in his own vehicle, a four wheel drive Outlander VRX. 3. To the best of Senior Constable Jayne's recollection, the two plain clothes officers would not have been at the Station Bar for any longer than around 20 minutes. He also recalled them returning to his vehicle at around 11.15pm. They both seemed very angry. They explained how Mr Cope wiped down their table and eyeballed them in a suspicious fashion and, a short time later, began removing patrons from the bar like he was closing for the night. 4. After the four officers returned to the police station the following text message exchange occurred between Ms Walls and Senior Constable Jayne: 11.32pm Walls: Hey station bar just warned us to watch out for operation and they just locked out wtf 11.33pm Jayne: Who did that come from? 11.34pm Walls: John 11.35pm Jayne: What did he say about it? Was he told or did he see people? 11.37pm Walls: He was told. He actually told bob bout 2hour ago said his roomate knew. U guys have a dog at cop shop 11.38pm Walls: I thought it was just bull shit but not now. He just closed his pub never seen that …………………………….. 11.48pm Jayne: What exactly did john say? 11.51pm Walls: Ask bob he was ther. Said to watch out operation happening tonight ……………………………. 11.55pm Walls: Fatso just been at station bar …………………………… 12.15am Jayne: Did you see what happened 12.16am Walls: They wer just talking out front station bar he went ther first then came over to us said hi and by 12.17am Walls: Hey security told me John roommate told him to close Senior Constable Jayne understood "John" to be a reference to Mr Cope, "bob" to be a reference to Mr Morris and "Fatso" and "roomate/roommate" to be a reference to the applicant. 1. Senior Constable Jayne concluded that the applicant must have disclosed the operation to Mr Cope shortly after watching the four officers leave the police station. 2. Senior Constable Jayne made a written statement to police on 27 June 2013. In that statement he did not nominate the time on 11 May 2013 when he and the other three officers left the police station. He did record that the applicant would have seen them leaving. He also recorded being told by Sergeant Hedges about Mr Cope looking at her and Senior Constable Blue and wiping their table down, while they were back at the police station. Kelly Walls 1. Ms Walls gave evidence that, at around 10.30pm on 11 May 2013, she was approached by Mr Morris, who was working on the front door of the Harp and Fiddle Bar. Mr Morris said words to the effect of "John has just come over and told us that his roommate has just told him that a police operation is happening and to be careful". Ms Walls understood "John" to be a reference to Mr Cope. 2. Ms Walls found this very unusual and decided that she should immediately pass the information on to the police. She was friends with Senior Constable Jayne so she sent him a text message which is the first in the exchange recorded at paragraph 100 above. Ms Walls later noticed the delivery receipt for this message on her mobile phone. Her phone does not always get reception inside the Harp and Fiddle Bar, which explains the delivery time of 11.32pm even though she had tried to send this message around an hour earlier. 3. At around 11.30pm Ms Walls observed patrons leaving the Station Bar. It seemed to her that Mr Cope was trying to close the bar urgently. 4. With respect to her text message sent at 11.37pm, "He was told. He actually told bob bout 2hour ago said his roomate knew. U guys have a dog at cop shop", Ms Walls' evidence was that, on review, it was, in fact, only around one hour earlier that the conversation between Mr Cope and Mr Morris had occurred. Ms Walls was not aware, at this time, that Mr Cope's "roomate" was, in fact, the applicant. 5. In relation to her text message sent at 11.38pm, Ms Walls explained that she meant that she had never seen Mr Cope close the Station Bar so early on a Saturday night. In her text message sent at 11.55pm, Ms Walls referred to the applicant as "Fatso" but could not recall why, other than she recalled that the applicant was a larger individual. 6. At around 1.00am Ms Walls provided the police with the CCTV footage from the cameras at the front of the Harp and Fiddle Bar. Still photographs taken from the CCTV footage show Mr Cope standing with Messrs Morris, Manning and Masri at 10.23 – 10.24pm on 11 May 2013. 7. In a written statement dated 18 July 2013, Ms Walls stated that, on Saturday 11 May 2013 at about 10:30pm, Mr Morris told her that Mr Cope had just come over and told them that his "roommate" had told him that a police operation was happening and to be careful. Ms Walls stated that she immediately sent a text message to a friend of hers, Senior Constable Jayne. 8. Under cross-examination Ms Walls confirmed that she sent the first text message to Senior Constable Jayne on 11 May 2013 at about 10.30pm, not at 11.32pm as is shown on the printout of the text message exchange. 9. In her handwritten notes, which Ms Walls prepared for her benefit to give evidence in these proceedings, she had written: john came over approx 10.30 Message was sent approx. 11:30 john closed at 11pm, could have been 11:30pm approx 60 patrons in station bar Mobile phone records 1. The mobile telephone records of the applicant and of Mr Cope were produced in answer to summonses for production and tendered into evidence. These records disclose that, on 11 May 2013 at 6.31pm, the applicant sent a text message to Mr Cope. At 6.34pm Mr Cope called the applicant and they had a conversation which lasted for approximately two minutes. The applicant sent a further text message to Mr Cope at 11.11pm that evening. Case for the applicant 1. The applicant denied that he had any knowledge of the covert police operation which was conducted on 11 May 2013. He denied that he had informed Mr Cope about the operation. He could not recall the content of the two text messages he sent to Mr Cope at 6.31pm and 11.11pm that evening, or the content of the telephone conversation at 6.34pm. He said that probably they were normal communications about routine living arrangements. 2. In his response to the section 181D Notice, the applicant stated that it could be concluded, on the balance of probabilities, that Ms Walls had been advised about the covert police operation by Senior Constable Jayne before it commenced. Under cross-examination, the applicant conceded that this was just his speculation. John Cope 1. Mr Cope swore two affidavits and gave oral evidence in the proceedings. He stated that he was not aware that there were any undercover police officers present at the Station Bar on the evening of 11 May 2013. He claimed that, during the early evening of Saturday 11 May 2013, whilst on duty at the Station Bar, he looked out the window and saw two large black cars driving down Bathurst Street. He thought they looked like the black riot trucks used by police. Later that evening he walked across the street to the Harp and Fiddle Bar and spoke with Mr Morris and possibly with Mr Manning. There may have been other security guards present. Mr Cope made reference to the vehicles he had seen earlier and said words to the following effect "I think there must be a police operation going on or something". 2. Mr Cope denied that he had said that the applicant had told him that the police were conducting an operation that night in the Station Bar or in any other bar. Further, Mr Cope denied that the applicant had said anything to him to the effect that the police were conducting an operation that day. 3. Initially, Mr Cope could not recall closing early on 11 May 2013, but claimed that it was not unusual to do so if the evening had been particularly profitable or if it had been quiet. In his reply affidavit Mr Cope stated that, on 11 May 2013, he closed the Station Bar at around midnight. A schedule prepared by the respondent from subpoenaed records shows that the till was cashed out at 11.50pm. 4. Mr Cope could not recall wiping a table in a peculiar fashion and was unaware that there were any undercover police officers present in the bar that evening. 5. Under cross-examination Mr Cope maintained his denial that he passed on any information about a covert police operation to the security staff at the Harp and Fiddle Bar, or that he had been told about such an operation by the applicant. He maintained his denial that, when Sergeant Hedges and Senior Constable Blue entered the Station Bar on the evening of 11 May 2013, he was aware that they were undercover police officers. Robert Morris 1. Robert Morris is a freelance security guard and the former owner of All Aussie Security which, as at May 2013, was contracted to provide security services to the Harp and Fiddle Bar. 2. In a written statement to police, dated 16 July 2013, Mr Morris stated: I remember being told by someone that some undercover police were inside the Station Bar on that evening of 11 May 2013 but I don't remember now if it was John Cope or another person. I may have told Kelly Walls that information. I may have come to the conclusion that Jason Hudson had told John Cope about the undercover police but do not remember Cope saying that. 1. In his primary affidavit in these proceedings, Mr Morris recalled that, on the evening of 11 May 2013, he was on duty at the Harp and Fiddle Bar together with two other security guards, Mr Manning and Mr Masri. Mr Morris did not specifically recall speaking with Mr Cope that evening, but did recall seeing Mr Cope speaking with Mr Manning. Annexed to Mr Morris' affidavit were images taken from the Harp and Fiddle Bar CCTV footage showing Mr Cope in the presence of Messrs Morris, Manning and Masri at 10.23pm – 10.24pm that evening. 2. Mr Morris denied saying the words attributed to him in Ms Walls' statement to police of 18 July 2013, "John has just come over and told us that his roommate has told him that a police operation is happening and to be careful", or any words to that effect. 3. Mr Morris stated that Ms Walls, at some point that evening, told him about a covert police operation at the Station Bar. 4. Mr Morris denied that he told Ms Walls, or any other person, that Mr Cope told him that he, Mr Cope, knew about the police raid because he had been told by his "roommate". 5. Mr Morris did recall having a subsequent conversation with Mr Manning in which the latter said words to the effect "John came over earlier and said there were undercover police around tonight". 6. Under cross-examination, Mr Morris would not accept that Mr Cope was the only person, of the four who were seen on the CCTV footage, who could have provided the information about undercover police being inside the Station Bar that evening. 7. Mr Morris subsequently conceded that it was Mr Cope who told him that "undercovers were doing walkthroughs that evening". Mr Morris maintained his denial that Mr Cope said that he had been told this by his "roommate". Mark Manning 1. Mr Manning was not called as a witness in the proceedings but a written statement to police by him dated 30 July 2013 was tendered into evidence as part of the "Commissioner's Confidence – Supporting Documents" bundle. 2. In that statement Mr Manning referred to the images from the CCTV footage where he is seen with Messrs Morris, Masri and Cope. Mr Manning stated: I can not remember the conversation but think is may have been about unmarks about that night. I think this is the night he closed about midnight which is unusual; he normally closes about 2:00am. When I say unmarks I mean usually licensing police and they are around almost every Saturday night. Ahmed Masri 1. Mr Masri was also not called as a witness in the proceedings, but a written statement to police by him dated 23 July 2013 was tendered into evidence as part of the "Commissioner's Confidence – Supporting Documents" bundle. 2. Mr Masri stated: John spoke mostly to Bob Morris who is proprietor of All Aussie Security. I hardly know John. John said words similar to "The police are coming to do walk throughs". He was not there long and I do not know how he knew the police were going to do walk throughs. John then walked back to the Station Bar and closed early. I then carried on my duties and finished my shift between 3:00am and 4:00am. Until I spoke to Bob Morris on the phone last week and he told me that Jason Hudson who is a local police officer may be in cahoots with John. I know Jason Hudson as a local policeman who comes to do his checks at the Harp & Fiddle when he is working. I have never really had a conversation with him, I'd just say hello. I did not suspect he had anything to do with John coming over on the evening of 11 May until the conversation last week. I have come to the police station to make this statement at the request of Detective Chapman Determination with respect to allegation (3) 1. The standard of proof to be applied to the determination as to whether this allegation against the applicant is made out is the balance of probabilities to be determined by adopting the cautious approach of Dixon J in Briginshaw v Briginshaw [(1938) 60 CLR 336 at 362). In other words, the Commission must be reasonably or comfortably satisfied, having regard to the seriousness of the alleged misconduct and the gravity of the consequences, that the alleged misconduct did, in fact, occur. 2. The evidence led by the respondent in support of this allegation is circumstantial in nature. The approach to be adopted by the Commission in cases such as this case, where the incriminating evidence is circumstantial in nature, was discussed by Walton VP in Starr v Commissioner of Police at [240]-[244]: 240 The Commissioner relied entirely on circumstantial evidence which, it was contended, established that the applicant used the air rifle found in the boot of his car to wound himself. Proof on the balance of probabilities or, indeed, proof on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage [1875] 1 AC 278 at 279: My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel. 241 In WorkCover Authority of NSW v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246 at 294, Hungerford J noted the decision of Davidson and Street JJ in R v Cable [1947] 47 SR (NSW) 183 at 184 where it was said: In many cases, circumstantial evidence is stronger than direct evidence, which is subject to the fallibility of human observation and recollection. 242 However, where a particular fact or course of conduct is sought to be established by circumstantial evidence alone, that evidence must, when taken together, rationally and persuasively lead to the conclusion alleged. In Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, for example, Dixon J (with whom Latham CJ agreed) stated (at 375): If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. See also Haynes v CI & D Manufacturing Pty Ltd [1994] NSWIRComm 230; (1995) 60 IR 149 at 152 - 153 and Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [6]. 243 In Seltsam Pty Ltd v McGuiness & Anor (1999 - [2000] NSWCA 29; 2000) 49 NSWLR 262, the Court of Appeal considered whether there was sufficient circumstantial medical evidence to establish that the inhalation of asbestos was causally linked to renal cell carcinoma. Spigelman CJ stated (at 278) that: The courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. 244 Any fact can be established by a process of inference which combines primary facts like "strands in a cable" rather than "links in a chain", to use Wigmore's simile (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579); see also Seltsam at 276. In seeking to draw a conclusion from a set of facts, however, it is necessary to distinguish between a permissible inference and mere conjecture. In Seltsam, Spigelman CJ cited (amongst others) the judgment of Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306, where it was said: The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to be quite possible. 1. Thus, the task before the Commission in the present matter is to determine, on the balance of probabilities, whether the applicant tipped off Mr Cope about the covert police operation. This determination is to be made on the basis of a judgement as to the inference or inferences which can be drawn from the facts as disclosed in the evidence or, put another way, a judgement as to whether or not those facts make it reasonably probable that the applicant did tip off Mr Cope as alleged. What time did Sergeant Hedges and Senior Constables Blue, Kustro and Jayne leave Katoomba Police Station on 11 May 2013? 1. As previously stated, the timing of the departure of the four officers from the police station is important because of the evidence that the applicant sent a text message to Mr Cope at 6.31pm that evening and received a call from Mr Cope at 6.34pm which lasted for two minutes. However, the evidence led on behalf of the respondent does not clearly establish the time of departure of the officers. 2. The applicant withdrew his agreement in the Agreed Statement of Facts to the departure time being at or around 6.30pm. 3. Sergeant Hedges put the departure time as at around 6.30pm to 6.45pm. However, in her report prepared on 12 May 2013, Sergeant Hedges does not specify a time of departure from the police station but does specify a time of arrival at the Family Hotel as "about 7pm". In her statement to police of 24 July 2013, Sergeant Hedges, again, does not nominate a time of departure from the police station but does state the time of arrival at the Family Hotel to be 7.00pm. 4. Senior Constable Blue's evidence was that they left the police station at around 7.30pm. However, the time of their departure was not noted in her police notebook at the time. In Senior Constable Blue's written statement to police of 17 May 2013, she nominated their time of departure as about 7.30pm. 5. Senior Constable Kustro gave evidence that his briefing would have commenced shortly after 6.00pm and lasted around 20 to 30 minutes at which time he and the other three officers left the police station to commence the operation. As they left, they were observed by the applicant. However, in his police notebook, Senior Constable Kustro's contemporaneous entry was "Commence op 8.20pm… Arrived back at station approx. 11:30". In his oral evidence, the Senior Constable stated that the 8.20pm entry should have been 6.20pm. In a report prepared on 12 May 2013, Senior Constable Kustro did not nominate a time of departure but stated "About 11.30 we arrived back to Katoomba for debrief". In his statement to police of 30 July 2013, Senior Constable Kustro, again, does not nominate a time of departure from the police station, but does state that they were observed by the applicant as they left. The statement continues "For the next three (3) hours, SGT HEDGES and S/CST BLUE attended Katoomba Family Hotel and the Station Bar & Woodfired Pizza,… At the completion of the operation at approximately 2300 11/5/13, we returned to Katoomba Police station for a debrief…". If accepted, this evidence would have put the time of departure at approximately 8.00pm, which is more consistent with the 8.20pm entry in the Senior Constable's police notebook, than it is with the 6.20pm correction he made during oral evidence. Under cross-examination, Senior Constable Kustro initially confirmed his previous statement that the covert operation lasted for a period of three hours and the four officers returned to the station at 11.30pm. However, when pressed, Senior Constable Kustro maintained that the covert operation commenced at 6.20pm, not 8.20pm as recorded in his police notebook. However, he was unable to reconcile a departure time of 6.20pm with his evidence that the duration of the covert operation was three hours and a return time to the police station was 11.30pm. 6. Senior Constable Jayne did not specify a time on 11 May 2013 when he and the other three officers departed Katoomba Police Station, but he did say that it was after the briefing by Senior Constable Kustro, which commenced at around 6.00pm and was "fairly short". He also claimed that the four officers were seen leaving the station by the applicant. 7. Ultimately, the evidence led by the respondent as to the time of departure from the police station of the four officers was inconsistent and, in some respects, contradictory. This may well be a product of a lack of attention to this detail when making notes in their police notebooks, preparing reports, making statements to police and drafting their affidavits for the purpose of these proceedings. 8. Also relevant is the applicant's concession, during cross-examination, that it was possible that he saw Senior Constable Kustro in the company of two plain clothes officers at the police station prior to 6.30pm. However, this concession as to a possibility does not really advance the argument very far. 9. Based on this evidence alone, a positive finding that the four officers left the police station, and were seen leaving by the applicant, before he sent his 6.31pm text message to Mr Cope, would have been unsound. However, when considered with the other "strands" of circumstantial evidence dealt with below, the requisite level of satisfaction that the applicant did, in fact, see the four officers at the police station prior to sending his text message to Mr Cope, in which he alerted Mr Cope to the possibility of an undercover operation at the Station Bar that evening, is achieved. Were Sergeant Hedges and Senior Constable Blue "made" by Mr Cope as plain clothes police officers? 1. The evidence of both officers as to the behaviour of Mr Cope after they entered the Station Bar that evening is compelling. Both officers are experienced in undercover operations in licenced premises. Despite some factual discrepancies between the evidence of the two officers, they were consistent with each other on the issue of Mr Cope's behaviour after they arrived at the Station Bar. 2. Sergeant Hedges recorded her opinion that Mr Cope was aware that they were licensing police in the report she prepared on 12 May 2013 and in her statement to police of 24 July 2013. This opinion was based on the manner in which Mr Cope approached their table, invaded their personal space in an intimidating manner and wiped down their table. It was not long after this that Mr Cope left the bar, walked across Bathurst Street and engaged in a discussion with the security staff at the Harp and Fiddle Bar. 3. Sergeant Hedges was unshaken in her conclusion during cross-examination. 4. Senior Constable Blue reached the same conclusion as Sergeant Hedges that they had been "made" by Mr Cope. This was based on Mr Cope staring at them and the manner in which he approached and wiped down their table. Senior Constable Blue also recorded her opinion that she and Sergeant Hedges had been identified by Mr Cope as police officers in her statement to police of 17 May 2013. 5. Like Sergeant Hedges, Senior Constable Blue's opinion was unshaken in cross-examination. 6. Despite his denial, I am comfortably satisfied on the evidence that, when Sergeant Hedges and Senior Constable Blue entered the Station Bar on the evening of 11 May 2013, Mr Cope, having been previously tipped off by the applicant, picked them out as plain clothes police officers and began to behave accordingly, which included walking across the road to alert the security staff at the Harp and Fiddle Bar. Did Mr Cope tell the security staff at the Harp and Fiddle Bar about the covert police operation in the Station Bar, about which Mr Cope's "roommate'' had tipped him off? 1. The email exchange between Ms Walls and Senior Constable Jayne suggests that Mr Morris was told by Mr Cope that there was an operation occurring and that he, Mr Cope, had been advised of it by the applicant. Both Mr Morris and Mr Cope deny this happened. On its own, this email exchange is third or fourth hand hearsay and of very little probative value. However, there is other evidence which tends to support the hypothesis that the applicant warned Mr Cope of the undercover operation and that Mr Cope, in turn, but only after he had concluded that there were plain clothes police in his bar that evening, alerted the security staff at the Harp and Fiddle Bar. 2. In a statement to police dated 16 July 2013, Mr Morris remembered being told by someone that undercover police were in the Station Bar on the evening in question. He did not remember if it was Mr Cope or another person who told him. He stated that he may have told Ms Walls that information and that he may have come to the conclusion that the applicant may have told Mr Cope about the undercover police, but he did not remember Mr Cope saying that. 3. Mr Manning, who was also present when Mr Cope came across the road and had a discussion with the Harp and Fiddle Bar security staff, recalled, in his statement to police dated 30 July 2013, a conversation about "unmarks" meaning licensing police. Mr Masri, in his statement to police dated 23 July 2013, stated that Mr Cope told Mr Morris about police coming to do "walk throughs". 4. In his affidavit evidence in these proceedings, Mr Morris denied that Mr Cope had told them that his "roommate" had told Mr Cope that a police operation was happening and to be careful. He claimed that he only knew about a covert police operation at the Station Bar on the evening in question because Ms Walls had told him about it. He also recalled being told by Mr Manning, sometime later that evening, that Mr Cope had told Mr Manning that there were "undercover police around". 5. Under cross-examination Mr Morris resiled from his previous evidence that Ms Walls had told him about the covert police operation at the Station Bar. However, Mr Morris would not accept that the only possible source of that information was Mr Cope. Mr Morris claimed that "Everybody in the Station Bar knew there was undercovers in there. Any of the kids could've told us". 6. I reject this evidence. In my opinion, Mr Morris was not a witness of credit. I am satisfied that the source of the information about undercover police to Mr Morris, and to the other two security guards at the Harp and Fiddle Bar, was Mr Cope. 7. I reject Mr Cope's denial of this fact. I have already found Mr Cope to lack credit as a witness in relation to the nature of his relationship with the applicant. His denial that he told the security guards at the Harp and Fiddle Bar that there were undercover police in the Station Bar on the evening in question, fits this pattern of giving untruthful evidence in order to protect the applicant. 8. Mr Cope's evidence was that, during the early evening of Saturday 11 May 2013, he looked out the window and saw two large black cars driving down Bathurst Street; that he thought they looked like the black riot trucks used by police; that later in the evening he walked across the street to the Harp and Fiddle Bar and spoke with Mr Morris and other security guards present; and, that he made reference to the vehicles he had seen earlier and said words to the following effect "I think there must be a police operation going on or something". I find this evidence to be implausible for a number of reasons: 1. If Mr Cope did, in fact, notice two police PORS trucks in the vicinity earlier that evening, he was not able to offer any explanation as to why he waited until after 10.00pm, and until just after the two plain clothes police officers entered his bar, to walk across the road to alert the Harp and Fiddle Bar security staff of a possible police operation. 2. The sighting of two PORS trucks would not have alerted Mr Cope to a covert police operation. He did not claim that it did. He claimed to be unaware of the arrival of the two plain clothes police officers in his bar just before he left and walked across to the Harp and Fiddle Bar. And yet, on the evidence of Mr Morris, he and Mr Manning were made aware that there were undercover police around and doing walk throughs that evening. I am comfortably satisfied that the warning about the presence of undercover police came from Mr Cope. 1. I am further satisfied that Mr Cope was tipped off about the covert police operation by the applicant during their text and phone call exchange shortly after 6:30pm that evening. There is no other plausible explanation as to how Mr Cope was alerted to the possibility that plain clothes police officers might pay a visit to his bar that evening. 2. When Sergeant Hedges and Senior Constable Blue arrived at the Station Bar later that evening, Mr Cope correctly deduced that they were the plain clothes police officers about whom he had been alerted by the applicant. Mr Cope began behaving in an odd manner towards the two officers, which included staring at them, invading their personal space in an intimidating fashion and wiping down their table when there was no need to do so. Once satisfied as to the true identity of the two officers, Mr Cope walked across the road to alert the Harp and Fiddle Bar security staff as to the presence of undercover police in the Station Bar. He then returned to the Station Bar and closed early. 3. In making his finding on allegations (3), the Commissioner expressed his extreme concern that the applicant had compromised the NSW Police Force's operational effectiveness, including the ability to detect and prevent crime, and exposed plain clothes police officers to real risks to their personal safety. 4. It appears that the Commissioner made his finding in the absence of knowledge that there had been a text message and phone call exchange between the applicant and Mr Cope shortly after 6.30pm on 11 May 2013. Such knowledge would, no doubt, have only served to confirm in the Commissioner's mind, the correctness of his finding. 5. I concur fully with the finding of the Commissioner in relation to allegation (3). 6. The "strands" of circumstantial evidence from which the inference can be drawn that the applicant did, in fact, tip off Mr Cope about the covert police operation include: 1. Evidence as to the time when the officers left the police station, and were seen leaving by the applicant, including the applicant's concession that this may have been prior to 6.30pm. 2. The fact of the applicant's text message to Mr Cope at 6.31pm and Mr Cope's phone call to the applicant at 6.34pm. 3. Evidence that Mr Cope identified Sergeant Hedges and Senior Constable Blue as plain clothes police officers as soon as they entered the Station Bar that evening. 4. The fact that Mr Cope, shortly after, walked over to the Harp and Fiddle Bar and engaged in conversation with three security guards there. 5. Evidence that, following that conversation, those security guards were aware that undercover police were present in the Station Bar. 6. Evidence that Mr Morris advised Ms Walls that Mr Cope had alerted the security guards to the covert police operation, having been tipped off about it by his "roommate", the applicant. 1. This conduct by the applicant, without more, constituted a sufficient basis for his removal from the NSW Police Force. Allegation (4) – failure to seize a small resealable plastic bag containing an off white powder that the applicant found in his partner's wallet and suspected was a prohibited drug, and failure to report this discovery to police 1. The background to this allegation was that, in April 2012 while on annual leave, the applicant discovered in his partner's wallet a small plastic resealable bag which had an off white powder in it. The applicant assumed the off white powder to be an illicit substance but did not seize it or make any formal report about his discovery until 18 May 2012. These facts were admitted by the applicant. 2. The Commissioner found this allegation proven. Case for the applicant 1. The applicant claimed that, at the time when this incident occurred, he had been in a de-facto relationship with his then partner for approximately two years. On making the discovery he was shocked and distressed. He called a fellow officer to report what had happened. 2. When the applicant returned from annual leave he reported his discovery to a sergeant and a leading senior constable. Shortly after, the applicant met with Inspector Wallace and reported what he had discovered. Following this, the applicant ended the relationship with his de-facto partner. 3. On 6 June 2012, the applicant provided a written statement recounting the circumstances in which he discovered the plastic bag. This report was countersigned at the time "NFA at this time". On or about the morning of 6 June 2012, the applicant had a conversation with Inspector Schack-Evans during which, according to the applicant, the Inspector said words to the following effect: The boss had a look at your file and just wants to ask a few further questions so that he can close the file off. Nothing is going to come out of it. 1. The applicant heard nothing further in relation to this matter for over twelve months until after the issue of his association with Mr Cope was first raised with him. Determination with respect to allegation (4) 1. In his response to the section 181D Notice the applicant effectively admitted allegation (4) but claimed that there were extenuating circumstances. Not a great deal of time was spent on this allegation during the hearing before me and, given my findings in relation to the other allegations, I don't propose to deal with it further, other than to observe that, the suspected prohibited drug was discovered in the wallet of the applicant's partner with whom he was living. This occurred in late April 2012. The applicant was on annual leave at the time. 2. The applicant claimed that he had reported his discovery to a colleague on the day he found it. He reported the incident to Inspector Wallace shortly after he returned from annual leave on 18 May and submitted a written report on 6 June 2012. The report went before the Crime Management Team on 11 July 2012 and was endorsed "Place on P File no further action". 3. Had this been the only matter raised against the applicant, it may well have fallen short of sufficient grounds for his removal, despite his poor disciplinary record. During final submissions, counsel for the respondent conceded as much. It was a concession properly made. Unreasonable or unjust 1. Given my findings in relation to allegations (1), (2) and (3), it is clear to me that the removal of the applicant from the NSW Police Force was inevitable. It was neither unreasonable nor unjust. 2. My finding that the applicant was untruthful in his representations to the Commissioner, and in his evidence in these proceedings, provides a further basis to justify his removal. Harshness 1. There remains the question as to whether or not, in all the circumstances, the removal of the applicant was, nevertheless, harsh. 2. In support of such a finding the applicant points to his 14 years of service since beginning at the NSW Police Academy in 2000. This is a double edged sword for the applicant because, despite some commendable achievements over that period, overall his work record was poor. 3. The financial impact of his removal has been severe on the applicant and on his family. Against this is the applicant's concession that, if he did tip off Mr Cope about the covert police operation as I have found that he did, he should not continue as a member of the NSW Police Force. The seriousness of this misconduct is extreme. 4. On balance, a finding that the applicant's removal was harsh is not available on the evidence before the Commission. Conclusion 1. The application before the Commission for a review of the order removing the applicant from the NSW Police Force is dismissed. 2. I so order. ********** 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: 15 July 2016