Industrial Relations Commission New South Wales Medium Neutral Citation: Morris v Commissioner of Police [2016] NSWIRComm 1034 Hearing dates: 29, 30 August 2016 Date of orders: 08 September 2016 Decision date: 08 September 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application upheld Catchwords: POLICE – removal of police officer – s.181D Police Act 1990 – review under s.181E Police Act - statutory scheme – powers of Commission – hearing de novo ONUS – Onus on applicant to demonstrate decision 'harsh, unreasonable or unjust' POLICE – discipline – Commissioner entitled to expect that officers will not consume illicit drugs – allegation that officer consumed illicit drug not made out POLICE – hierarchical rank structure can be relevant to consideration of conduct PRACTICE AND PROCEDURE – s.181F Police Act – Commissioner to answer applicant's case – Commissioner only required to answer the case mounted by applicant EVIDENCE - strength of evidence required to make out matters at the civil standard increases proportionally to the gravity of the matter to be made out PUBLIC INTEREST – in each case a matter of fact and degree – public interest the integrity of the Police Force – public interest under Police Act specifically defined and differs from meaning of public interest under Industrial Relations Act – public interest in maintaining capable and experienced Police Force Legislation Cited: Evidence Act 1995 s.140 Industrial Relations Act 1996 Part 6 Police Act 1990 s.181D, 181E, 181F, 181G Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 14 Commissioner of Police v Collins (2008) 180 IR 191 Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 Commissioner of Police v Reid-Frost (2010) 192 IR 363 Commissioner of Police v Sewell (2008) 180 IR 91 Hosemans v Commissioner of Police (2004) 138 IR 159 Hudson v Commissioner of Police [2016] NSWIRComm 1031 Lawrance v Commissioner of Police (2010) 199 IR 139 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113 Paul Gardiner and Commissioner of Police [2009] NSWIRComm 84 Police Service Board v Morris and Martin (1985) 156 CLR 397 Qantas Airways Ltd v Gama [2008] 167 FCR 537 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police (2009) 181 IR 420 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Walsh v Commissioner of Police [2011] NSWIRComm 26 Category: Principal judgment Parties: Roderick Guy Morris – Applicant Commissioner of Police – Respondent Representation: Counsel: R Reitano (Applicant) E Raper (Respondent) File Number(s): 2016/00113665 Judgment 1. This is an application brought under s.181E of the Police Act 1990 ('the Act') by Roderick Guy Morris. Mr Morris seeks a review of an order made by the Commissioner of Police, pursuant to s.181D of the Act, removing Mr Morris from the Police Force. He does so on the grounds that the Order providing for his removal was harsh, unreasonable or unjust. 2. The Commissioner's Order was made on 23 March 2016. The application was brought within time. Powers of the Commission on review 1. It is useful at the outset to set out the statutory structure and the Commission's established jurisprudence in a matter of this kind. 2. Section 181D of the Act gives the Commissioner of Police power to remove an officer where the Commissioner no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. 3. A person who is the subject of a decision to remove him from the Police Force may apply for a review of that decision of the Commission pursuant to s.181E of the Act. 4. Section 181E relevantly provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission… for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 1. A statutory code, prescribing in mandatory terms the manner in which the Commission is to conduct the review, is set out at s.181F of the Act: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (a) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (i) the interests of the applicant, and (ii) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1). 1. The jurisprudence of the Commission has been developed in a number of decided cases, most extensively in Little v Commissioner of Police (No 2) (2002) 112 IR 212. 2. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 at [134]; Commissioner of Police v. Reid-Frost (2010) 192 IR 363 at [11]. As I have elsewhere observed, there is in my view a tension between this prescription and the evidentiary structure imposed by s.181F(1) and the provisions of s.181G(1)(f) and s.181G(2), but that it is a hearing de novo is well-established law binding on me. 3. There is also in my view a tension in the application of the tripartite test of 'harsh, unreasonable or unjust,' terms used to assess the quality of the termination of a contract, to a finding by the Commissioner that he does not have confidence in an officer. Again, though, that is the effect of the statutory provisions, and statutory provisions must be read and applied as they are, and must be read so as to work, rather than so as not to work: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113. Process on review 1. As to the process to be adopted on application for review, s 181F requires this Commission first to 'consider' the Commissioner's reasons for the decision to remove the applicant from the Police Service. The Commissioner's reasons are those set out accompanying the Order the Commissioner has made under 181D. It is then for the applicant to make out a case that the decision to remove him from the Force was harsh, unreasonable or unjust: Act, s.181F(2). 2. It follows from the statutory structure that if an applicant cannot advance a case that has a capacity to establish that the order to remove was harsh, unreasonable or unjust, the application for review cannot succeed. In that circumstance an applicant has not carried his onus. I here observe that the meaning of the words 'harsh, unreasonable or unjust', which are disjunctive terms, in review proceedings under the Act must be the same as the meaning to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996. ('the IR Act') As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104]) 3. However, notwithstanding what was said in Hosemans, the test in coming to a view as to whether a given removal was harsh, unreasonable or unjust is not identical to that test in the IR Act. That is because the Commission in proceedings under s.181E must take into account matters, set out in s.181F(3)(b), which the Commission in an application brought under s.84 of the IR Act does not have to consider in addressing that question. Amongst other things, the Commission is to have regard to a 'public interest' which, because it is partly defined at s.181F(2)(ii), is not the same as the 'public interest' in the IR Act: Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 at [27] per Heydon J. 4. To return to the question of onus, if the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the Commissioner. 5. As the Full Bench held in Hosemans: "The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s181B of the Police Act was [sic] discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2)." (at [131]) To the same effect is Starr v Commissioner of Police [2001] NSWIRComm 226. The purpose of the Commissioner's case is, as the Act expressly provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. 1. In all this it must be borne in mind in every case that, as was held in Starr, 'each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case.' (at [140]) 2. To be specific, in each case the matters advanced by both the applicant and the Commissioner must be examined in their context. There would be, no doubt, some kinds of conduct by a police officer which would render a decision to remove him or her from the Force not open to any practical challenge regardless of the context in which they occurred, but those kinds of conduct would be few. In general there must be an assessment of the context in which the conduct which has caused the Commissioner to lose confidence in an officer occurred for a fair review to be carried out, and such an approach is mandated by the relevant provisions of the Act and the IR Act. 3. I make the point here that I have elsewhere held that the Commissioner of Police is entitled to act on the basis that there is no place in the NSW Police for a user of illicit drugs. I maintain that view and have applied it throughout my consideration of this matter. It is unsurprising that, as counsel for the Commissioner correctly submitted, prohibited drug use has been recognised by this Commission justifying dismissal: Walsh v Commissioner of Police [2011] NSWIRComm 26; Baker v Commissioner of Police [2015] NSWIRComm 15. 4. With all that in mind I turn to the instant matter. Facts 1. I do not propose here to set out the facts exhaustively. Where they are relevant and in contest I address them in the consideration of the matter below. However, the Commissioner's reasons for removing Mr Morris, Mr Morris' case and the consideration in this decision are to be understood in the following factual context. 2. The events in question took place in October 2010, almost six years ago. 3. At that time Mr Morris was a serving member of the Force with the rank of Sergeant, and had been a police officer for 20 years. He was at the time of these events subject to disciplinary action orders involving reduction in rank from Sergeant Year 5 to Sergeant Year 1 for conduct outside work. His own evidence was that he was an effective and well-regarded police officer. 4. On 8 October 2010, Mr Morris attended an apartment on the Gold Coast which had been rented by a group of present and former NSW police officers for the purposes of a reunion weekend. These were men with whom Mr Morris had played rugby league football in the NSW Police team in the 1990's. Some, particularly Mr Fitzgibbon and Mr Kolosque, were described by Mr Morris as friends with whom he was keen to catch up. Others were men whom he knew only a little or not at all. 5. Mr Morris did not stay in the apartment that the group had rented, but over the course of the weekend attended it twice from his nearby home, where he lived with his wife and children. 6. Unbeknownst to Mr Morris the apartment was subject to surveillance in the form of audio and video monitoring by the Queensland Crime Commission and the NSW Police Integrity Commission, on the basis of suspicion of illegal conduct by at least one person to be present on the weekend. Mr Morris was not one of the persons suspected of illegal activity, and he was not aware that any persons who would be present on the weekend were suspected of any illegal activity. 7. Mr Morris attended the apartment for rather more than two hours on the afternoon of Friday 8 October 2010. He and the others present were drinking. Toward the end of the time Mr Morris was present, a man named Reid, not at that time a NSW police officer, produced a plastic bag full of what have consistently been described since as 'hash cookies,' although there has never been any testing of these items. It is however the case that all those present at that time, including Mr Morris, held the belief that the items were what Reid said they were, that is, some form of cooked biscuit containing cannabis, colloquially known as 'hash cookies.' 8. Reid produced the bag of cookies in the kitchen of the apartment. Mr Morris was present in the kitchen when Reid did this. So was Shane Diehm, at that time an Inspector, a commissioned officer, in the NSW Police. Diehm was at that time the then-Sergeant Mr Morris' Crime Commander at the Tweed/Byron Local Area Command, and was accordingly a superior officer in Mr Morris' direct line of report. As a sergeant, Mr Morris stood in the same position to Diehm as any NCO in any rank structure to an officer; that is, he was subordinate to Diehm, looked to Diehm for leadership and was obliged to obey Diehm's orders. 9. A more detailed analysis of events that then occurred appears later in this decision as the parties' respective cases are considered. For the moment it is sufficient to say that the allegations that Mr Morris failed to report the illegal activity of consumption of a prohibited drug, that he consumed an illicit drug, and that he failed to report Diehm's misconduct in consuming an illicit drug, stem from the events of Friday evening, indeed of a period of about 20 minutes, because Mr Morris left the apartment about 20 minutes after the hash cookies were produced by Reid. 10. The next day, Saturday 9 October, Mr Morris spent the afternoon with the same group of men, including Reid, in a public bar. Mr Morris' evidence was that he expected that Reid would be present, but decided that Reid was unlikely to produce further prohibited drugs in a public place. It is from this interaction that the Commissioner found that Mr Morris had failed to avoid a conflict of interest. Mr Morris returned to the apartment for a short time on Saturday evening. He had been drinking for about seven hours and was, on any of the evidence, significantly intoxicated. In the apartment at that time a number of the others consumed cocaine and ecstasy, both prohibited drugs. On the evidence this occurred behind Morris' back. None was offered to Morris, on the evidence, and he did not on the evidence consume any. It was not put to the Commission that Mr Morris was aware that this illegal activity was occurring and it can properly be observed here that on the evidence before me I could not, and do not, find that he had any awareness of the presence of those drugs in the apartment. 11. Neither on Friday 8 October, Saturday 9 October, or at any subsequent time before he was questioned about these matters a year afterward did Mr Morris make any report of Reid's conduct in producing what Morris believed were hash cookies, or of any persons consuming them. That was in circumstances where Mr Morris remembered, the next day and thereafter, that Reid had produced the hash cookies. 12. Morris was not subject to any drug testing, within any period that would have detected drug use, following these events. 13. A year later, in October 2011, Mr Morris was required to give evidence before the Police Integrity Commission. ('PIC') He was, on the evidence, unaware that there had been surveillance of the apartment. He was asked a question about the presence of illegal drugs in the apartment and volunteered that there had been what he suspected to be hash cookies. By so saying he inculpated himself, because while he had come into and indeed retained that knowledge, he had not reported it to either the Queensland or NSW police. 14. He was then shown some of the video footage with soundtrack. Having seen it Mr Morris made a number of concessions about what had occurred, not, it is clear, from memory or refreshed memory, but based on seeing the footage When asked about, for example, whether he remembered seeing anyone consume any illicit drugs, he said that he didn't recall seeing that occur, but accepted, from viewing the video evidence, that it appeared it had occurred. 15. Based on the evidence he gave, Mr Morris was charged with five counts of giving false evidence to the PIC. 16. He continued carrying out his normal policing duties until August 2013, when he was suspended. 17. The charges of giving false evidence to the PIC were heard in the Local Court in April 2014. He was found not guilty on each of the five counts. 18. Those findings, made in another court and considered against the criminal standard of proof, are not binding on the Commission. 19. A year later again, in April 2015, Mr Morris attended a directed interview with the NSW Police dealing with the same subject matters. He gave evidence very similar to that which he gave to the PIC. 20. On 1 December 2015 Mr Morris was served with the Commissioner's s.181D(3) Notice, to which he responded. 21. On 23 March 2016 the Commissioner issued an Order under s.181D(1) removing Mr Morris from the Police Force. 22. I refer above to the proposition that in each case the matters advanced by both the applicant and the Commissioner must be examined in their context. The context of the matters that emerged from the evidence in this case and which I go on to address is this; Mr Morris decided to attend what he described as a 'boys' weekend' with a group of men, some of whom he regarded as good friends with whom he had played competitive sport at a reasonably high level. Put in ordinary terms, it was Mr Morris' express intention to have a big weekend drinking and punting with some mates; that is what precisely he did, and that was the mindset with which he evaluated the events of the weekend as they unfolded. The other contextual aspect, of course, is that he was a serving police officer at the time. The Commissioner's reasons 1. With that outline of facts in mind I first turn, as the Act requires, to the Commissioner's reasons for having come to the view that he had lost confidence in Mr Morris as a police officer. They are set out in the Statement of Reasons accompanying the s.181D(1) Order. 2. The Commissioner has set out his reasons at some length, covering some 20 pages. He cites significant portions of the evidence on which he has relied to form his view, and refers to and addresses the exculpatory arguments advanced by Mr Morris in his response to the original Notice. Such a detailed approach is entirely appropriate. The Commissioner followed a process which was procedurally fair. 3. Counsel for the Commissioner summarised the five grounds on which the Commissioner determined to remove Mr Morris as follows: 1. on 8 October 2010, Mr Morris consumed a prohibited drug in the form of a 'hash cookie'. (I add that it is necessarily the case that this refers to a deliberate or knowing consumption.) 2. Mr Morris failed to report the criminal activities (or suspected criminal activities) of those individuals present on 8 October 2010, including the supply of prohibited drugs by Mr Robert Reid, the drugs supplied being cannabis in the form of 'has cookies'; 3. Mr Morris failed to report the misconduct of Mr Shane Diehm in consuming a prohibited drug, in circumstances where Mr Diehm was an Inspector of Police employed by the Commissioner at the relevant time; 4. Mr Morris failed to avoid a conflict of interest; and 5. Mr Morris was evasive and less than fully frank in giving his evidence before PIC on 24 October 2011. 1. Having made those findings the Commissioner, with reference to relevant provisions of the Act, the Police Regulation as then in force, the NSW Police Handbook, the NSW Police Force Drug and Alcohol Policy, the NSW Police Force Code of Conduct and Ethics, and the NSW Police Force Conflict of Interest Policy and Guidelines, determined that he did not have confidence in Mr Morris's suitability to remain a member of the NSW Police Force. For the purposes of s.181D, the grounds for the Commissioner's decision were 'conduct' and 'integrity'. 2. I have considered the Commissioner's reasons, as the Act requires. The reasons must explain why the decision has been taken: Baker at [98]. In my view that requirement extends to a need for the reasons to show, on their face, why removal was found to be an appropriate response to the matters considered. On their face the reasons here given comply with the requirements of s.181D(4) of the Act, in that they demonstrate that the Commissioner considered the alleged conduct and Mr Morris' response to the show cause notice issued to him, as the Commissioner is required to do: Act, s.181D(3); Lawrance v Commissioner of Police (2010) 199 IR 139 at [274] - [276], and they provide on their face a basis for the removal action taken. The Applicant's case 1. It then fell to Mr Morris to advance his case as to why the Commissioner's decision to remove him was harsh, unreasonable or unjust.. 2. It is to be remembered that, as set out above, the hearing before the Commission is a hearing de novo. The determination of the question posed by the Act of whether the decision to remove was harsh, unreasonable or unjust depends on the case an applicant brings to this Commission. That is the meaning of the words 'the case presented by the applicant' in s.181F(1)(b). The case on review turns on the evidence and argument put before the Commission. 3. In his evidentiary case and his argument Mr Morris addressed each of the five findings, set out above, on which the Commissioner based his decision to remove him from the Force. I here refer to Mr Morris' evidence before the Commission, except where I specifically indicate otherwise. The determination of this matter, as a hearing de novo, depends essentially on the evidence in these proceedings. 4. As to the finding that he had consumed an illicit drug, that is, cannabis in the form of a hash cookie, Mr Morris flatly denied that he had done so. He did not assert that he could not remember whether he had or not, he asserted squarely that 'as a fact' he had not done so. 5. As to the finding that he had failed to report the criminal activities (or suspected criminal activities) of those individuals present on 8 October 2010, including the supply of prohibited drugs by Reid, the drugs supplied being cannabis in the form of 'hash cookies', Mr Morris admitted that he failed to do so. He admitted also that he had a duty to do so. He conceded in his response to the Commissioner that he 'did not act appropriately'. 6. As to the finding that he failed to report consumption of an illicit drug by a serving NSW Police officer, Inspector Diehm, Mr Morris said that he was not certain that Diehm had consumed an illicit drug; he had not seen Diehm do so. 7. As to the proposition that he failed to avoid a conflict of interest, Mr Morris said that on the Friday evening he left the apartment once it had properly registered on him that there were illicit drugs present, and that he left earlier than he planned to leave. He said that he did not regard there to be a risk of a conflict of interest on Saturday, because he was confident that no illegal activity would be essayed in a public bar. He conceded that it was poor judgment to return the next day, but pointed to the fact that he had wished to catch up with, in particular, Fitzgibbon and Kolosque, whom he regarded as friends, and was not going to be thwarted in that by the presence of Reid. 8. As to the finding that he was evasive and less than fully frank in his evidence to the PIC, Mr Morris asserted that he was frank, that he answered the questions to the best of his ability, that while he now accepted that persons had consumed hash cookies while he was in the apartment on 8 October 2010 he could not remember precisely who had. He pointed to the fact that Magistrate Favretto in the Local Court had found him not guilty of five charges of giving false evidence to PIC, and in doing so had made comments and observations to the effect that Mr Morris had been, contrary to the Commissioner's finding, frank before the PIC. The Commissioner's case 1. The Commissioner's reasons, set out above, necessarily set out the initial elements of the Commisisoner's case. Once Mr Morris set out his case, which included flat denials of some elements of the Commissioner's findings and in other parts assertions that his removal was harsh, unreasonable or unjust in the admitted factual circumstances, the Commissioner, as the jurisprudence of this Commission has been developed, bore the onus of meeting the applicant's case. 2. The allegations against Mr Morris are all serious. The provisions of s.140 of the Evidence Act 1995 apply to all of them. It must be understood that s.140, and the reasoning in Briginshaw v Briginshaw (1938) 60 CLR 336 that underpins the statutory provision, do not alter the civil standard of proof. That always remains on the balance of probabilities. Nor does s.140 set any kind of fixed level of heightened satisfaction that is to be reached to render a finding than an event occurred available. 3. Rather, s.140 prescribes that, as was held in Qantas Airways Ltd v Gama [2008] 167 FCR 537 at [10], "the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved." The graver the allegation that is sought to be proved, the greater the strength of the evidence necessary to make it out. The allegations here are, as I say, grave. 4. The Commissioner's case that Mr Morris consumed an illicit drug is based on video footage and on audio-recorded remarks made by Mr Morris while in the apartment on the afternoon of 8 October 2010. 5. The video footage is of poor quality. It shows Mr Morris being handed by and taking from Reid an object, which Mr Morris said in evidence he believed to be a hash cookie, and bringing it to his mouth. In his oral evidence he confirmed that he did that. The video then shows him quite quickly taking his hand away from his mouth. His oral evidence was that he took the cookie away from his mouth without consuming any of it. It appears from the video that he places the object he was holding on a counter top. It is impossible to see whether or not he puts anything into his mouth, whether or not he bites at the object he is holding, and whether or not the object that he appears to return to the counter top is whole or has been partially consumed. 6. No finding that Mr Morris consumed an illicit drug could be made on the video footage alone. The Commissioner's case, however, relies on that footage in conjunction with the audio recordings. 7. In particular, the Commissioner points to the following extracts from the recording. I point out here that the recordings are of poor quality and are of several men talking, often all at once. A document said to transcribe the recorded conversations was provided by the Commissioner, but I could not satisfy myself that everything in the transcript was an accurate reflection of the sound recording that I heard as part of the evidence. Only that recording is evidence, of course, the transcript is not. 8. The Commissioner asserted that certain things said by Mr Morris on the recording, said to be contemporaneous submissions, supported a finding that Mr Morris knowingly consumed an illicit drug. They are set out in counsel's submissions. I am satisfied that these comments as written fairly reflect the relevant parts of the recording I heard. The extracts all come from the period between 17:29 and 17:44 on Friday 8 October: 1. at 17:29:01 Mr Morris says, shortly after the words 'hash cookies' are said by someone else, "They're fucking terrible anyway," 2. there is a conversation extending from 17:41 to 17:45, in which Mr Morris and others discuss how long cannabis remains detectable by a drug test, in the course of which Mr Mr Morris says at three discrete points: 1. "…had one bit…and thought oh fuck." 2. "I had one little nibble of it…I had one little (untranscribable) oh fuck me drunk"; and 3. "if I had a little nibble of it it won't affect me will it?" 1. I am asked to conclude from this, that an allegation, which is necessarily a grave allegation, that a serving NSW police officer knowingly consumed a prohibited drug is made out. 2. I am not able to do so to the level of satisfaction that s.140 of the Evidence Act requires. The video footage simply does not show that to occur at all. Of course the extracts from the audio recording to which the Commissioner points might be construed to mean that Mr Morris was saying that he had consumed some of a hash cookie. I am not satisfied at the level required that that is what they do mean. But even if they could be taken to mean that he was conveying to the others in the group that he had eaten a portion of a hash cookie, that does not prove that he did so as a matter of fact, at the requisite level of satisfaction required for such a serious allegation to be made out. 3. The second basis for removal was that Mr Morris failed to report the supply of a prohibited drug to, presumably, the local police when he had an obligation to do so. 4. This allegation is made out on the evidence before me. Mr Morris believed that he was handed a biscuit containing a prohibited drug. Others were also being handed these biscuits. He left the place where this was occurring shortly afterward, but it is clear on the evidence that the next day he recalled that he had been given what he believed to be a prohibited drug. 5. If Mr Morris observed any person consume, use or possess a prohibited drug, his duty as a police officer was to report that activity to the appropriate authorities for investigation: Baker at [131]-[135]. He did not report it then or later. 6. I return to the consideration of this finding below, but it must be observed that neither Inspector Diehm nor Inspector Dennis, both of whom were present at the time this occurred, reported the matter. I draw the inference that Mr Morris would have been reasonably certain, from the fact that neither Diehm nor Dennis, both commissioned officers in the NSW Police, made any protest or expressed any disapproval about the handing round of the 'hash cookies', that neither was going to report the matter, either to the local police or to the NSW Police. That was so in circumstances where Diehm was Morris' direct superior officer in Mr Morris' LAC, and was a commissioned officer to Mr Morris' sergeant. Mr Morris' failure to carry out his duty must in my view be assessed in that context. I return to this point below. 7. The next matter is the ground that Mr Morris failed to report Inspector Diehm for consuming a prohibited drug. Mr Morris maintained in his evidence that he had no recollection of seeing Diehm eat a hash cookie, and therefore could not report him for doing so. That was the account he gave to the PIC, in his directed interview, and before the Commission. Again, he readily conceded that now, looking at the video, it does appear that Diehm ate a hash cookie in his presence. But he is not being tested against what he can now conclude from the video; he is being tested against an alleged failure by him to report, at the time, his observation of a criminal act carried out by a then-serving NSW police officer. 8. The Commissioner advances his case that Mr Morris certainly knew at the time that Diehm ate a hash cookie (and that therefore Morris not only failed to report a criminal act by a serving police officer, but necessarily gave false evidence to the PIC, in interview and before this Commission) on the basis of video and audio evidence. 9. This is again a grave allegation and it must be made out on the evidence, at the civil standard, to the degree of satisfaction appropriate to such an allegation. 10. At issue is whether Morris saw Diehm consume a hash cookie. In my view of the video footage it is far from clear that that is so. Counsel for the Commissioner correctly submits that the CCTV footage shows that when Reid hands out the cookies, Mr Morris is present in the kitchen with Fitzgibbon, former Superintendent Jonathan Alt and Diehm. It shows that Morris was standing next to Diehm when Diehm appears to consume the cookie. As counsel also submits, Mr Morris conceded under cross-examination that he was standing next to Diehm and there was nothing to impede his actual or peripheral vision of Diehm. 11. Doing the best I can with the video footage, I am unable to see that Mr Morris is looking at Diehm when the latter appears to consume a cookie. At that time Morris is looking directly ahead; Diehm is standing to his side, and I cannot see any change to Morris' head or eye position as Diehm appears to consume the cookie. Diehm makes no unusual or extravagant movement. It might be argued that if a man is standing next to you, you will know if he is eating a hash cookie, but that inference depends on the assumption that the viewer is having special regard to any consumption because a hash cookie is involved. It can be accepted that neither Morris nor anyone in his position would have registered or remembered whether, for example, Diehm drank from his can of beer while standing next to him. The video evidence does not, as I say, show that Morris paid any regard to what Diehm was doing. It does not allow a finding that Morris knew Diehm ate a hash cookie. 12. But this matter does not end there. Shortly before Morris left the apartment, he appears to have an exchange with Diehm. He appears to point at Diehm and say, in a context that cannot refer to anything else than the hash cookies, "You had one," and then, "You fucken did eat one". I do not accept that Mr Morris was speaking to Kolosque, as was tangentially suggested, when he said these words. 13. I am not able on the evidence before me, including his comments to Diehm, to conclude that Morris saw Diehm eat the cookie. In my view the evidence, including the tone and manner of the words he spoke to Diehm, which are expressed as a challenge, demonstrates that Mr Morris made an assumption, from all the surrounding circumstances, that Diehm had very likely eaten a cookie. That is not knowledge. 14. Again, however, the matter does not end there. Mr Morris then involved himself in a discussion with the others about the consequences of consuming a drug as against a drug testing regime. The subject matter of the discussion was how long cannabis remains detectable in the system after consumption. Mr Morris offered his views about this. His comments can only sensibly be understood as indicating that he was aware that persons there present either had consumed or were considering consuming a prohibited drug. 15. I observe that, consistent with that finding, Mr Morris in his directed interview agreed that, having had the benefit of seeing the footage, he "obviously" saw others consuming what he suspected were 'hash cookies', although he could no longer nominate exactly who had done so: Ex 1, Annexure "C", Q75, page 181. 16. Counsel for the Commissioner submits that this level of knowledge was sufficient to require Morris to report the behaviour of those present to Queensland Police and, in the case of those present who were serving police officers, to the NSW Police. 17. This submission is in my view correct. Mr Morris had a duty to report the fact that a person had supplied a prohibited drug in his presence to Queensland Police. Any report would have necessarily involved not only revealing Reid's conduct, as Mr Morris accepted in his evidence (and in his response to the Commissioner) he ought to have done, but the identity of the other persons present. 18. That brings me to one of the critical elements in the consideration of this case. 19. Mr Morris did not make a report of the events of the Friday night on, say, the Saturday morning, when he certainly, on his own account, remembered that Reid had produced hash cookies in his presence and the presence of serving NSW police officers, even if nothing more had occurred. He had a duty to make such a report. 20. Before the PIC, it was put to Mr Morris that he did not report this criminal behaviour to authorities because some of the persons present were his friends. His answer was, "that would be predominantly the reason, the obvious reason". I do not think that this was an answer to a hypothetical question, but rather, was a frank answer. 21. Mr Morris was a police officer of long standing. In any service, military or 'paramilitary' as the Commissioner described the NSW Police in submissions, serving officers form strong personal bonds, including bonds involving groups. Those bonds of trust and confidence arise from cooperation in, and are necessary to dealing with, dangerous situations. The practical reality is that no service force where members are required to place their safety and potentially their lives at risk can function without those bonds being created and maintained. Loyalty and trust between officers when they are exposed to life threatening situations has to be instinctive. 22. From the evidence, it is clear that Mr Morris regarded himself as having a bond of loyalty to some (although not all) of those present on 8 and 9 October. That loyalty in my view influenced his actions both in his failure to report and in his error in not absenting himself on 9 October from a conflict of interest. 23. Of course it will be said, and correctly said, that these bonds of loyalty must not at any time in any way deflect a police officer from his duty. Indeed the Oath touches on that proposition. The question here is whether Mr Morris' conduct in, as I apprehend it on the evidence, placing reliance on loyalty to other (and more senior) officers has rendered him unfit to be a police officer. 24. In considering that question, this also must be weighed. Morris was at the time of these events a sergeant. To make the report he ought to have made would mean, given that it was apparent to him that the two commissioned officers present had no intention of making any report, inculpating these senior officers. One of them was his direct duty commander at the time. It would also have meant taking, on his own initiative, an action which it was apparent neither of the commissioned officers present was going to take, when the graver responsibility to do so rested on them, commensurate with their commissioned status and higher rank. Mr Morris certainly had a duty to report the matter. It is understandable that he was influenced in his approach to that duty by the conduct of the senior officers present. 25. None of this washes away Mr Morris error, and his failure of duty. It does however place it context and to a degree explain it. I turn to the effect of this consideration below. 26. As to the fourth matter, the Commissioner was correct to find that Mr Morris failed to avoid a conflict of interest on Saturday 9 October by associating with persons which included a person who, to Mr Morris' knowledge, had supplied a prohibited drug the evening before. This was certainly an error of judgment. Mr Morris' evidence was that while he knew Reid was going to be there, he was not going to be put off the opportunity to meet with some good friends for a day's enjoyment by Reid's presence, in circumstances where he assessed that there would be no criminal activity because the day would be spent in public places. 27. That error is also in my view to be seen in the context of the bonds of loyalty to which I have referred above, and in the context of at least one senior commissioned police officer being present at the bar. 28. As to the fifth ground, given my findings of fact above, I do not accept that Mr Morris was evasive or less than fully frank in his evidence to PIC. He answered the questions he was asked. So far as the Commissioner's submissions are to be understood to suggest that Mr Morris acted wrongly or culpably in answering the questions put to him in their terms, I am unable to accept that submission. 29. I observe, as I set out above, that Mr Morris inculpated himself before the PIC by volunteering the information that there were what he believed to be hash cookies at the apartment before he had any knowledge that there had been surveillance of the place. That is not in my view the action of a man who is determined to conceal the truth or conceal his own culpability. 30. There is also this. Mr Morris was first asked about these events a year after they occurred. I can take judicial knowledge of the fact that human memory is at best impermanent and inaccurate. 31. Further to that, it is the case that a weekend of heavy drinking has a real capacity to obliterate memory of events occurring at that time and immediately before it. That a person who was moderately intoxicated on Friday afternoon and then went on to be heavily intoxicated the next day - noting that on the evidence the group went out for a night of further drinking after leaving the apartment on the Saturday evening, at which time Morris was already significantly intoxicated - would have difficulty remembering details of a passing event, or even a noteworthy one, that occurred on the Friday evening is entirely unsurprising. Mr Morris did remember that there had been what he believed to be hash cookies present on the Friday evening, but it is in my view entirely credible that his independent memory of those events, and the details of those events, was lost by the time he came to give evidence before the PIC. 32. It is relevant in this context that Mr Morris did not accept the proposition that the video footage 'refreshed' his memory; he said on a number of occasions, including in making concessions against his interest, that he did not remember the detail on which he was being pressed at all, but said words to the effect of 'based on what I see there, it is now apparent that (such and such a thing) happened.' I accept Mr Morris' evidence that he has now, and had when he was giving evidence to the PIC, no remaining memory of a number of details of that weekend. Consideration 1. In my view, so far as the Commissioner placed reliance, in removing Mr Morris from the Force, on the propositions that Mr Morris consumed an illicit drug, that he failed to report Inspector Diehm consuming a prohibited drug, and that he was evasive and less than fully frank in his evidence to the PIC, Mr Morris makes out his onus of demonstrating that that removal was both unjust and unreasonable, as those grounds are not made out to the required level of satisfaction on the evidence. 2. They were not the only grounds, however, on which the Commissioner relied. 3. Mr Morris did not report the supply of a prohibited drug, as he had a duty to do. He did not avoid a conflict of interest, as he had a duty to do. In both those matters Mr Morris acted in precisely the same way as two commissioned police officers who were present, one of whom was his direct superior officer. 4. Dealing with these two matters separately, it can at the outset be said that the error Mr Morris made when he failed to avoid a conflict of interest may have been considered a matter worthy of disciplinary sanction, but was not sufficient to justify on its own his removal from the Police Force. 5. The failure to report a criminal activity is a serious matter. While it is the case that not every failure to report a suspected criminal offence will necessarily warrant removal of an officer from the force – see the concession by the Commissioner and the attendant reasoning in Hudson v Commissioner of Police [2016] NSWIRComm 1031 at [172]-[174] – this was a matter in which other police officers were present and by their presence inculpated. 6. The Commissioner of Police is entitled to rely on the members of the Force acting in accordance with their oath, and acting in accordance with the Police Act, the Regulation and the codes of conduct developed by the Force. There can be no doubt about those precepts. The Commissioner is entitled to impose discipline if there is a failure by an officer to so act. The question here, however, is whether the Order made by the Commissioner was in all the circumstances harsh, unreasonable or unjust. 7. In my view, it is not realistic to hold Mr Morris to a standard which two commissioned officers present on the day, one being his own Crime Commander, did not hold to, either as to reporting or as to the conflict of interest. It is a rare subordinate, especially a subordinate who is a NCO while the other is a commissioned officer, who would report what Mr Morris saw in those circumstances. The Commissioner is right to say that Mr Morris ought to have done so, but to remove him entirely from the Force because he did not do so is, in the very particular context of this matter, a counsel of perfection unrelated to the practical situation Morris faced. 8. What falls to be determined, as I say, is whether the decision to remove Mr Morris was harsh, unreasonable or unjust, and that matter is to be considered in the context of a number of statutory directions. Matters required to be considered by s.181F(3) 1. The Act sets out at s.181F(3) matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and must further have regard to the public interest. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. The interests of the applicant 1. Having regard to the interests of the applicant, it is clear that the effect of the Commissioner's decision on Mr Morris is great. It is so in the case of any sworn police officer removed from the force, of course, but the effects will be different in fact and degree in each case. 2. Here Mr Morris has invested his adult working life in working as a police officer. That does not of itself defend him against removal from the Force for wrongdoing, and indeed it necessarily means that he must understand his obligations as an officer to the letter. 3. I have regard to the effect of his removal on Mr Morris, but in my view those effects are subordinate to the public interest as defined in the Act. Public interest 1. Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins (2008) 180 IR 191 at [58]. The 'public interest' here to be considered is one unique to the Act: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [248] - [249]. The public interest is prescribed by the Act to include the public interest of maintaining the integrity of the NSW Police Force, and also to include the fact that the Commissioner made the order pursuant to section 181D (1). 2. In that latter regard it is appropriate to bear in mind the comments of the Full Commission in Commissioner of Police v Sewell (2008) 180 IR 91: "There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act." (at [7]) 1. And as was held in Lawrance, (supported on this point on appeal): 'Here, there is required a balancing of considerations between the Commissioner's determination, the maintenance of the integrity of the Police Force (by the upholding of appropriate standards, even in off duty situations) and the elimination of conduct which may bring the Police Force into disrepute (such as the impugned conduct), and, the maintenance of the service of a highly trained officer who has the strong support of his colleagues (because of his performance in the Police Force) and who is capable of providing valuable service to the Police Force in the future.' (at [313]) 1. I bear those precepts in mind. 2. I also bear in mind that a person who accepts the role of a police officer necessarily accepts the standards of discipline that apply within the Force: 'The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.' Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 at 412 per Brennan J. 1. Mr Morris did not, let it be stated clearly, assiduously perform his duty. This failing, however, occurred in circumstances which in my view render inappropriate a simple black-and-white judgment that that failure was absolute and inexcusable. 2. It is not every failure of duty that gives rise to removal. It is not every error of judgment that gives rise to removal. It is not every breach of the Regulation that gives rise to removal. Each matter is to be assessed on its own facts and circumstances. 3. As it was held in Toshack v Commissioner of Police (2009) 181 IR 420: "It has been said, however, in various ways, that the requirement of a police officer to act with integrity does not constitute an absolute test of the officer's suitability to remain in the Force. See, for example, Alexander v Commissioner of Police [2009] NSWIRComm 3 at [48]; Raymond Sewell v New South Wales Police Force. Application by Raymond Sewell for review of an order under s 181E of the Police Act 1990 [2008] NSWIRComm 93 at [131]. That must be so, in our opinion, otherwise the whole system of review under Division 1C of Pt 9 of the Police Act would be otiose. Similarly, the Commissioner may promulgate from time to time codes of conduct or ethics or statements of value which may act as a 'touchstone' of the integrity of the officer. However, as Haylen J pointed out in Sewell v NSW Police Force (as approved in Commissioner of Police v Sewell [2008] NSWIRComm 147 at [20]), such codes "should not be treated as a monolith but should be treated as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review". (at [46]-[47]) 1. Counsel for the Commissioner submitted that it is not in the public interest that an officer, and specifically here Mr Morris, be returned to the NSW Police Force where there is a risk that he will become compromised again: Paul Gardiner and Commissioner of Police [2009] NSWIRComm 84 at [146]. That submission correctly states the jurisprudence of the Commission. I have, however, come to the view that Mr Morris would not become compromised again. I formed the view from his evidence and his demeanour in giving that evidence that he was, contrary to counsel's submissions, being candid in his evidence to the Commission. That included his evidence that he had learned from his errors in this matter. 2. In this regard I observe that Mr Morris continued as an operational police officer for nearly three years after the time of these events until he was suspended in August 2013. His evidence was that during that time he worked effectively, and that evidence was not challenged by the Commissioner. 3. In my view the public interest includes a consideration of the fact that the NSW public, who pay for the Police Force, have invested 24 years in developing Mr Morris as a police officer. I am not convinced that in this case the public interest is best served by discarding him. There is a real public interest in maintaining a capable and experienced Police Force. 4. Mr Morris' unchallenged evidence about the later period of his police career included that in 2010, he was given leadership of the Proactive Crime Unit, a specialist team of selected and motivated constables, which had an impact on driving down key crime categories such as drug activity and break and enters. He received a Region commander's Commendation in relation to an arrest of a violent armed offender in 2011. In 2012, again after the events in question, he was given the responsibility for leading, monitoring and reporting on a 'cluster' team of some 20 constables. His evidence was that the teams in the cluster that he led became leaders in the command in response to crime, proactive strategies, case management and training. 5. I take account of the discipline imposed on him in 2009, but in sum, the evidence disclosed that Mr Morris was an effective general duties police officer capable of providing leadership to junior officers and of acting with personal courage in dangerous situations. There is a public interest in having such officers in the NSW Police. In my view Mr Morris is, to use the words in Lawrance, capable of providing valuable service to the Police Force in the future. 6. I have regard, as the Act requires, to the fact that the Commissioner has made the Order removing Mr Morris. That must be weighed against the fact that I have found three of the grounds on which the Commissioner relied not to be made out on the evidence. The tripartite test 1. Addressing each limb of the tripartite test to this particular case, it was unjust and unreasonable to remove Mr Morris from the Force on the basis of grounds 1, 3 and 5 relied on by the Commissioner, as the evidence is insufficient to make out those grounds. 2. It was not unjust, but it was harsh and unreasonable to remove Mr Morris from the Force for his failure of duty, in all of the circumstances, and for his failure to avoid a conflict of interest, in all the circumstances. Summary and disposition of the application 1. I find that Mr Morris has met the task required of him under the statutory scheme of establishing that his removal from the NSW Police Force was harsh, unreasonable or unjust. I will order that Mr Morris be reinstated to the Police Force at the rank and incremental level he held at the date of his removal. 2. I do not propose to make any Order providing for payment for the period between 23 March 2016 and the date of this order. However, Mr Morris' service with the NSW Police shall be taken to be unbroken by that period. 3. I do not propose to make orders otherwise confining the Commissioner in Mr Morris' re-employment but would recommend that the Commissioner gives serious consideration to placing him in his previous Command, particularly having regard to his residence and service history. Orders 1. The Orders I make in this matter are as follows: 1. Application for review upheld. 2. Mr Morris is reinstated to the Police Force at the rank and incremental level he held at the date of his removal. 3. No order is made with respect to payment for the period between 23 March 2016 and the date of this Order. 4. Mr Morris's service with the NSW Police is taken to be unbroken. PETER NEWALL Commissioner Amendments 13 September 2016 - Decision amended to renumber paragraphs following the removal of extra numbering and updating of sub numbering in the following headings and paragraphs: Powers of the Commission on review Process on review Facts Consideration Orders and Paragraphs 44, 62 & 126 The text in the decision field in the coversheet was amended. 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: 13 September 2016