Commissioner of Police v Morris [2017] NSWIRComm 1010

Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Morris [2017] NSWIRComm 1010 Hearing dates: 3 March 2017 Date of orders: 10 March 2017 Decision date: 10 March 2017 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM, Acting Chief Commissioner; Stanton C; Murphy C Decision: Leave to appeal is refused Catchwords: LEAVE TO APPEAL – tests for the grant of leave – onus of proof – shift in evidentiary burden – test of public interest - whether findings of fact reasonably open on evidence – whether exercise of discretion disclosed error – grounds in support of leave to appeal not made out – leave to appeal refused Legislation Cited: Police Act 1990 Cases Cited: Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR 231 Category: Principal judgment Parties: Commissioner of Police (Appellant)

Roderick Morris (Respondent) Representation: Counsel: Ms K Eastman SC Ms E Raper (Appellant)

Mr A Moses SC Mr D Nagle (Respondent)

Solicitors: K&L Gates (Appellant)

W G McNally Jones Staff Lawyers (Respondent) File Number(s): 2016/00290717

DECISION 1. The matter before the Full Bench of the Commission is an application for leave to appeal and, if leave is granted, an appeal against a decision and orders of Newall C handed down on 8 September 2016 in Morris v Commissioner of Police [2016] NSWIRComm 1034. In that decision, Newall C upheld the application by Roderick Morris, the respondent in these proceedings, for a review of an order made by the Commissioner of Police, the appellant in these proceedings, pursuant to s 181D of the Police Act 1990 ('the Act'), removing the respondent from the NSW Police Force. 2. The effect of the decision and orders, which are the subject of this appeal, is that the respondent was reinstated to the Police Force at the rank and incremental level he held as at the date of his removal, 23 March 2016, but no order was made with respect to payment to the respondent for the period between 23 March 2016 and the date of the reinstatement order, 8 September 2016. Newall C made an ancillary order to the effect that the respondent's service with the Police Force was to be unbroken. 3. The facts of the case are sufficiently set out in the decision of Newall C and are not repeated in full here. 4. In short, the respondent was, at the time of his removal, a police officer with 20 years' service holding the rank of Sergeant. The grounds for his removal from the Police Force are set out in the decision of Newall C in the following terms (at [44]): Counsel for the Commissioner summarised the five grounds on which the Commissioner determined to remove Mr Morris as follows: (i) 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.) (ii) 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 'hash cookies'; (iii) 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; (iv) Mr Morris failed to avoid a conflict of interest; and (v) Mr Morris was evasive and less than fully frank in giving his evidence before the PIC on 24 October 2011. 1. In his decision, Newall C dealt with at some length the respective cases of the parties and, in particular. the case presented on behalf of the appellant. The Commissioner considered and dealt with the evidence which the appellant relied upon in support of the removal order. He then explained the reasoning which led him to the conclusion that the removal of the respondent was harsh, unreasonable or unjust, as follows: Consideration 95. 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. 96. They were not the only grounds, however, on which the Commissioner relied. 97. 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. 98. 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. 99. 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. 100. 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. 101. 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. 102. 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) 103. 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 104. 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. 105. 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. 106. 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 107. 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] NSWIRComm 162; (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] NSWIRComm 97: (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). 108. In that latter regard it is appropriate to bear in mind the comments of the Full Commission in Commissioner of Police v Sewell [2008] NSWIRComm 147; (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]) 109. 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]) 110. I bear those precepts in mind. 111. 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. 112. 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. 113. 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. 114. 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]) 115. 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. 116. 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. 117. 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. 118. 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. 119. 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. 120. 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 121. 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. 122. 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.