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. Leave to appeal 1. The correct approach to the granting of leave to appeal was recently restated by a Full Bench of the Commission (Tabbaa C AM, Acting Chief Commissioner; Stanton C; Newall C) in Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 in the following terms: Principles on leave to appeal 10 It is important to bear in mind that an appeal does not lie as of right against a first-instance decision of the Commission under the Act. Leave has to be sought and granted before any appeal is heard. Accordingly, we turn first to the question of leave to appeal. 11 The principles in relation to the grant of leave to appeal a decision of the Commission were canvassed, sufficiently recently, in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16, in which the Full Bench observed at [10] and [11]: [10] It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2)[2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. [11] The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. (See also the recent decision in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 which referred to the decision in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17). Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State." 12 We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13 Lastly, we add, as we said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. 1. We have adopted this approach to the determination of the issue of leave to appeal in the present matter. Case for the appellant on leave to appeal 1. The appellant contends that the following questions are raised by the appeal: 1. the onus of proof in applications for review pursuant to section 181E of the Police Act 1990, including, and in particular, the onus of proof in circumstances where a police officer is removed from their employment following alleged criminal activity; 2. the interpretation by the Commission of subsection 181F(3) of the Police Act 1990, particularly in circumstances where the Commission has applied an interpretation of this subsection that is inconsistent with prevailing authorities; and 3. whether or not the Commission made findings of fact that were reasonably open to it, in light of the evidence (or lack thereof) before the Commission below. 1. The reasons relied upon by the appellant in support of the grant of leave are as follows: 1. The first two questions raised by the appeal are substantial issues of principle and law, and matters of public importance. They have wider implications for the jurisprudence of the Commission in considering all applications for review brought before it in the future pursuant to section 181E of the Police Act 1990; 2. The appeal raises a matter of public importance as the Judgment elevates "bonds of loyalty" (of which there was no evidence) above the statutory obligation of a sworn police officer to report the misconduct of a sworn police officer colleague. This has significant ramifications for the integrity and culture of the NSW Police Force, and the legislation that is designed to instil and protect that integrity and culture. In turn, this will have a significant impact on the public confidence in the NSW Police Force; 3. The appeal will canvas the obligation of an employee to report misconduct of a colleague that occurs outside the workplace, and accordingly, has wider jurisprudential implications for cases in which the nexus between misconduct and the workplace is an issue; 4. To the extent that the appeal does seek to challenge findings of fact, it does so on the basis that those findings were not reasonably open on the evidence; and 5. The reasons disclose numerous errors on the part of the Commission below in the exercise of its discretion. Onus 1. In support of the grounds relied upon for the grant of leave to appeal, the appellant submitted that Newall C had "misconstrued the question of which party bears the onus of proof in review proceedings under s 181E, and how that onus is discharged". The appellant relied on the following passage from the decision under appeal in support of this submission: 55. The Commissioner's reasons, set out above, necessarily set out the initial elements of the Commissioner'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. (emphasis added by the appellant) 1. The appellant's submission on this issue is misconceived. It is apparent from other passages in the decision that Newall C clearly understood that, under s 181F(2) of the Act, it was the respondent who had, at all times, the burden of establishing that his removal from the NSW Police Force was harsh, unreasonable or unjust (see [12], [95] and [123]). 2. The Commissioner's comment to the effect that, once the respondent had set out his case, the appellant bore the onus of meeting the respondent's case, is entirely consistent with the correct approach to the issue of onus of proof in proceedings under Division 1C of Part 9 of the Act. This approach was most recently explained by the Full Bench in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [29]-[79]. After setting out certain passages from the first instance decision of Newall C in that matter, the Full Bench stated as follows: 79 It is clear from these passages that Newall C correctly understood that the onus or burden of establishing that his removal was harsh, unreasonable or unjust lay with the appellant. The Commissioner was also alive to the necessity, once the appellant had produced evidence casting sufficient doubt on the finding that he had deliberately ingested cannabis, for the respondent to prove, to the requisite standard, that the result of the drug test carried out on 28 May 2014 was a consequence of the fact that he had, in fact, deliberately ingested cannabis. This shift in the evidentiary burden to the respondent occurred by virtue of the appellant's denial and the circumstantial evidence going to the unlikelihood that he would deliberately ingest cannabis together with the expert evidence which opened up the possibility of an innocent explanation for the drug analysis result. The respondent met this shifting evidentiary burden by producing his own expert evidence which, if accepted, effectively ruled out the "innocent explanation" hypothesis. As he was then required to do, Newall C proceeded to consider the evidence placed before him by the parties on that basis. No error is apparent in relation to the issue of onus or evidentiary burden on the face of the decision under appeal. 1. It is sufficiently clear from the passage from the decision here under appeal, which is set out at paragraph 10 above, that the statement by Newall C that "the Commissioner... bore the onus of meeting the applicant's case" was, when properly understood, no more than a reference to the shift in the evidentiary burden to the appellant on the disputed factual issues, in particular, the issue as to whether the respondent had deliberately or knowingly consumed a prohibited drug. 2. It is apparent that Newall C approached the matter on the basis that the evidentiary burden on the issue of whether or not the respondent had deliberately or knowingly consumed an illicit drug, had shifted to the appellant as a consequence of: - the respondent's denial; - the lack of any direct evidence that the respondent had consumed an illicit drug; and - the inconclusiveness of the surveillance video footage and audio recording. 1. This aspect of the decision under appeal raises no issue which would warrant the grant of leave to appeal and discloses no appealable error on the part of Newall C. Public interest 1. The appellant next submitted that Newall C "misapplied the requirements of s 181F(3) of the Act in a manner inconsistent with the prevailing authorities. In particular, the Commission below erred in taking into account irrelevant considerations, and failing to take into account relevant considerations, in applying the 'public interest test' as required by s 181F(3)(b)". 2. Section 181F of the Act is in the following terms: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 1. Subsection 181F(3)(b) of the Act does not contain a prescriptive statement as to what constitutes the "public interest", beyond providing that it includes "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)". 2. In support of this ground for the grant of leave to appeal, the appellant submitted that Newall C considered matters pertaining to the respondent as being relevant to the public interest, to which the Commission was obliged to have regard. This submission discloses a misreading of the decision under appeal. 3. At paragraphs 104-106 of his decision, Newall C considered matters pertaining to the interests of the respondent, as is required by ss 181F(3)(a). The Commissioner then concluded as follows: 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. 1. Newall C then went on to have regard to the public interest, as he was obliged to under ss 181F(3)(b). 2. In considering the appellant's submission that it would not be in the public interest that the respondent be returned to the Police Force, where there is a risk that he will become compromised again, Newall C stated: 115 … 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. 1. Newall C had the distinct advantage of observing at first hand the respondent in the witness box in coming to the view that he would not become compromised again. No basis has been demonstrated by the appellant for appellate intervention in this formation of view by the Commissioner. 2. Newall C then stated: 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. 1. Contrary to the submissions of the appellant, Newall C did not consider the personal interests of the respondent as part of the public interest. What the Commissioner did consider, as forming part of the public interest, was the benefit to the NSW public in retaining, as part of the Police Force, an officer in whom the public had invested 24 years in developing to a point that, even after the events of 8 and 9 October 2010 were known to the appellant, the respondent was, nevertheless, awarded 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, the respondent 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. There is nothing impermissible in the Commission taking such matters into account when having regard to the public interest. 2. In light of this history, a heavy air of unreality hangs over the appellant's submission that the public interest must now be served by the removal of the respondent from the NSW Police Force. 3. There is nothing in the approach adopted by Newall C in his consideration of the public interest which would warrant the grant of leave to appeal or which discloses any appealable error. Bond of loyalty 1. At the hearing of the appeal, senior counsel for the appellant put a submission that the effect of the decision of Newall C is "that a police officer may come forward who knowingly breaches his duty but points to a bond of loyalty with his colleagues and long-standing friends to say that his conduct either should be excused or should be mitigated". Senior counsel also submitted that Newall C had raised the issue of the "bond of loyalty" during final addresses of the parties in the first instance proceedings. The submission was put in the following terms: And one of the significant grounds, in our submission, that would justify leave in this case is in what circumstances where an applicant says nothing and remains silent about a bond of loyalty either explaining or seeking to excuse his conduct can be raised by the Commissioner but not raised until the final submissions; not identified in the evidence; not raised with counsel in its opening address; and not advanced as part of the applicant's case. 1. The "bond of loyalty", as described by Newall C, manifested itself in a perceived reluctance on the part of the respondent to "dob in" his friends for consuming illicit drugs. The Commissioner put the matter in the following terms: 84 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. 1. It was put that this was not a matter which the respondent had raised in his case before the Commission and it was, therefore, inappropriate for Newall C to have raised it himself during the parties' final addresses. 2. Contrary to the submission put on behalf of the appellant, the "bond of loyalty" issue was not introduced into the proceedings by Newall C but had, in fact, been canvassed by those who were accusing the respondent of wrongdoing, including the appellant himself. 3. On 24 October 2011the respondent was questioned before the Police Integrity Commission. The following exchange occurred: Q. You knew that people were using drugs in the apartment, didn't you? A. At the time, yes. ……………………… Q. What obligations did you have if you saw people using illegal drugs? A. To report it. Q. To who? A. To my next line of command ………………………. Q. Do we take it you didn't do that? A. I didn't do that. Q. Why is that? A. I can't tell you, other than I didn't recall – I don't recall it, so – ……………………… Q. Well, some of them are your friends: is that the reason? A. That would be predominantly the reason, the obvious reason. 1. The respondent, in his witness statement (exhibit 1 in the proceedings below) stated that the gathering which he attended on 8 and 9 October 2010 was reunion of former and serving police officers who had played rugby league with the NSW Police Force rugby league team. Apart from his Crime Manager, the respondent had not seen the other attendees for between 10 and 15 years. To some extent at least, these facts gave Newall C an appreciation of the context in which the conduct of the respondent, which led to his removal, took place. 2. During the first instance proceedings the respondent was cross-examined by counsel appearing for the appellant as follows: Q. Now, you'd accept also though that the - that on the footage Mr Diehm doesn't seem to be concerned about you seeing him take drugs in your presence? A. He doesn't seem concerned, no. Q. And so have you got any explanation to give his Honour as to why they are all assuming that you will do nothing about their behaviour? A. Well, I guess there's a certain level of trust I guess with - as in mates wouldn't dob each other in for anything. I guess that's the assumption. Q. And that's because that was the case with you, wasn't it? A. I'd certainly operate differently now. Q. That's right, but at the time you operated on that basis, didn't you? A. Well, yeah, I failed to report the - particularly the behaviour of Reid. ………………………….. Q. And you didn't report Mr Diehm because he was your friend and you worked with him. That's the reason why. It's not that you didn't see it and you only remember what directly impacted upon you. That's just not true? A. I disagree. Q. You did it because the predominant reason was because he and the others were your friends? A. I don't know, I'm afraid. Q. Well, you accepted that, didn't you, before PIC? You said - "Well, some of them were your friends. Is that the reason?" and you said, "That would be predominantly the reason." So you're saying that's not the case now? A. He asked - he was - it was a line of questioning where he called upon me to speculate about something that hadn't occurred. ………………………….. The respondent was then further cross-examined about the evidence which he had given before the Police Integrity Commission in 2011 as follows: Q. ….. And then with respect to reporting, you say, "I'm not suggesting that you would do it today". "I'm asking you why you didn't do it at the time and you say, 'I can't tell you'". "Well some of them were your friends, is that a reason?". You say, "It would be predominantly the reason"? A. Well at the time I said it I didn't recall who specifically did anything. Okay. So then when he asked well why didn't you report that, well like I couldn't specifically report who was doing things and then he said, "Would it be a reason to be friends?" I guess that would be the obvious reason. And finally: Q. And it's the case, isn't it, that you knew there was a likelihood that you might be dismissed for a zero tolerance drug policy, and that's why you didn't report it? A. No, ma'am. Q. And you didn't want to report it because you wanted to protect your friends, that's the case, isn't it? A. Like I said, I don't know why I didn't report it. 1. In final addresses before Newall C it was counsel for the respondent who raised the issue of the "culture" that operates in the type of circumstances in which the respondent found himself, in the following exchange: COMMISSIONER: … Can we focus on this? Let's assume that the whole business of him eating a cookie falls away, that he went to or had a little bit and realised what it was and wished he hadn't and put it aside, so there was no knowingness about it. Go to that end of it, but that he did believe that Diehm, who was his crime commander at the time, whether he saw him, but he genuinely believed, "You had one, you fucking had one", that Diehm had ingested one, but chose at that time, not to do anything about it and then the thing washed out of his mind. REITANO: That's an extremely difficult question to answer. Again, in the vacuum, but let me say my response to your Honour's question, and I think reasonable minds might reasonably disagree on it, my response to your Honour's question is that, put yourself in the scenario where you're there with you crime manager, you're a member of the police force. You don't have to be Einstein to know that there's a culture that operates, but to grass on someone else is a fairly serious offence. You're torn between your duty to the Commissioner and to the culture that exists and so on. Could it be justified in some circumstances? Yes. Would it be justified in all circumstances? No. ………………………… COMMISSIONER: … And I think, it seems to me it reflected what you were just saying about other forces at play to with a code and the necessity that serving police officers will have a bond between them so that they can work together effectively in dangerous circumstances. REITANO: I can't say anything more other than I adopt that. 1. Newall C then raised the same issue with counsel for the appellant in the following terms: COMMISSIONER: Yes. If, and I put this to you in arguendo, as I did to your opponent earlier, some rather different propositions in arguendo, and it oughtn't be thought by anybody that this represents a finding that I have come to, because I have not. If this were the finding of fact that it's not possible to say whether or not Mr Morris consumed any of a hash cookie, but it is the case that he believed that Diehm, his crime commander, was well aware there were hash cookies in his presence and indeed had eaten one and he chose on that night and I suppose the next morning if you like, not to report that matter but it then washed out of his mind, does the Commissioner say that that choice not to, and I was going to use the loaded term, 'dob in', but I won't, the choice not to report his crime commander's conduct in being present where there were illegal drugs present and not do anything about it and as he believed. even if he didn't see it, consuming some of them. In the Commissioner's view that of itself and alone, warrants his dismissal from the police force. RAPER: Yes. In relation to that Commissioner, I must confess my instructors are very, very concerned about the submission that was made just before the adjournment that there is a police culture of seeing the illegal activity of others, who you associate with and who are your friends and are fellow officers, and that by virtue of that, this is excusable. COMMISSIONER: I didn't hear that submission. I didn't hear a submission having anything to do with there being a police culture of turning a blind eye to illegal activity. I heard a submission and in part I engaged in some arguendo about it, about a police culture where you are obliged to rely on your mates. It may have been put as high as in general the proposition that exists in every institution a football team, a police culture or a netball team, you don't go to dob in your mates. I didn't hear it being put to me that there was a police culture in existence that turned a blind eye to illegal activity. I'd be astonished by such a submission. 1. We reject the proposition put by the appellant that the "bond of loyalty" was not any part of the respondent's case at first instance, but was inappropriately introduced into the proceedings by Newall C during the parties' final addresses. 2. The more important point, however, is that the "bond of loyalty" issue has been blown out of all proportion in the submissions put on behalf of the appellant in support of the grant of leave to appeal. Those submissions were to the effect that Newall C found that the respondent "owed 'bonds of loyalty' to his sworn colleagues, and that this somehow mitigated, or excused, his misconduct" in "failing to comply with his statutory duty as a police officer to report the criminal behaviour of his sworn colleagues and friends". This submission discloses a fundamental misunderstanding of the decision under appeal, the relevant passages of which are set out below: 84 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. 85 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. 86 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. 87 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 1. It is clear from these passages that Newall C was considering the respondent's admitted failure to report the criminal behaviour of others in the context in which this failure occurred. This context included, not only the presence of sworn colleagues and friends but, importantly, the presence of two senior commissioned officers, one of whom was the respondent's Crime Commander. As Newall C made clear in his decision, the context in which the events occurred did not somehow excuse or wash away the respondent's misconduct, but did, to a degree, explain it. 2. The position adopted by the appellant in these appeal proceedings appears to be that any failure by a police officer to report any suspected illegal activity, regardless of the context or circumstances surrounding that failure, will render any decision to remove that officer from the NSW Police Force immune from scrutiny and review by this Commission. Such a proposition is antithetical to the responsibility placed upon this Commission under Division 1C of Part 9 of the Act. As Newall C correctly pointed out at paragraph 99 of his decision, this has not, in the past, been the invariable position adopted by the appellant in other cases of an officer's failure to report suspected criminal activity. 3. By refusing to order payment to the respondent for the period between 23 March and 8 September 2016, which constitutes a significant financial penalty on the respondent, Newall C has made a clear determination that the misconduct of the respondent cannot been excused or washed away. However, the task which was required to be undertaken by Newall C was to make an assessment, in the exercise of his own judgment, as to whether the removal of the respondent after 24 years' service was "too severe a penalty in all the circumstances" or "too harsh a consequence" for his misconduct (see Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR 231 per Watson J at p. 233). Conclusion on leave to appeal 1. Ultimately, Newall C determined that the removal of the respondent on the basis of the two grounds, which had been found by the Commission to have been made out on the evidence (grounds (ii) and (iv) as set out at paragraph 4 above), was harsh and unreasonable. There is nothing in this aspect of the decision under appeal which raises any issue which would warrant the grant of leave to appeal and which otherwise discloses any appealable error on the part of Newall C. 2. The approach urged upon this Full Bench by the appellant would see this Commission reduced to little more than a rubber stamp for any decision made to remove a police officer. Such an approach would be an abrogation of the Commission's responsibility under Division 1C of Part 9 of the Act. 3. Contrary to the submissions put by the appellant, the decision under appeal will not have consequences which will affect the jurisprudence of the Commission more broadly in relation to the off-duty conduct of employees or the obligation of those employees to report behaviour of colleagues which impacts upon their employment relationship, and the commensurate disciplinary action for such conduct. As has been the case in the past, all such cases in the future will be determined on their merits and own particular facts. 4. The appellant has otherwise failed to identify in the decision under appeal any finding of fact that was not reasonably open to Newall C on the evidence before him. Nor has there been demonstrated any error in the exercise of the Commission's discretion which would warrant appellate intervention. 5. The appellant's grounds for the grant of leave to appeal have not been made out. 6. The Commission makes the following orders: 1. Leave to appeal is refused. 2. The stay granted by the Commission on 20 October 2016 is dissolved. ********** 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 March 2017