Industrial Relations Commission New South Wales Medium Neutral Citation: Matthew Carlin v Commissioner of Police [2018] NSWIRComm 1057 Hearing dates: 20 and 21 November 2017 Date of orders: 25 September 2018 Decision date: 25 September 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Application Dismissed Catchwords: POLICE – removal of police officer – review of removal order – whether decision harsh, unreasonable or unjust Legislation Cited: Firearms Act 1996 (NSW) Government Information (Public Access) Act 2009 Police Act 1990 (NSW) Police Regulation 2008 (NSW) Weapons Prohibition Act 1998 (NSW) Weapons Prohibition Regulation 2009 (NSW) Cases Cited: Commissioner of Police v Morris [2017] NSWIRComm 1010 Toshack v Commissioner of Police [2009] NSWIRComm 31; 181 IR 420 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; 98 IR 57 Category: Principal judgment Parties: Matthew Carlin (Applicant) Commissioner of Police (Respondent) Representation: Counsel: G Doherty (Applicant) J Darams (Respondent) Solicitors: Walter Madden Jenkins (Applicant) Norton Rose Australia (Respondent) File Number(s): 2017/00240057 Judgment 1. By an order dated 21 July 2017 made under s 181D of the Police Act 1990 (NSW) the Commissioner of Police removed Senior Constable Matthew Carlin ("the applicant") from the Police Force. The applicant sought a review of that order pursuant to s 181E of the Police Act. Background 1. At the time of the allegations made against him the applicant was a Police Prosecutor stationed at Downing Centre Local Court. 2. The allegations were set out in the Notice pursuant to s 181D(3)(a) of the Police Act which was dated 6 December 2016 and which bore a notation indicating service of the Notice by Superintendent Dickson on 22 December 2016. The allegations were that: 1. "you failed to identify a conflict of interest involving Alexander Fuchs when you reviewed evidentiary material concerning Alexander Fuchs and provided professional opinion to him regarding sufficiency of evidence for potential charges against Alexander Fuchs." 2. "having failed to declare your Association with Alexander Fuchs prior to 16 September 2015, you failed to abide by the policies of the NSW Police Force with regard to reporting declarable associations." 3. "on 16 and 17 September 2015, you were untruthful, or at the very least, less than fully frank, in the account you provided to your supervisors about the advice you gave to Alexander Fuchs after you read the material he had applied for and received under the Government Information (Public Access) Act 2009." 4. "on an unspecified date prior to 16 September 2015, you stored your police issued inner belts, lanyard, leather jacket with a name tag 'Burwood 45', reflective vest, cargo pants, court pants, polar fleece jacket with name tag 'Redfern 147', woollen jacket, Antron cap, leather gloves, shirt, baseball cap, and utility belts at Alexander Fuchs' residence otherwise than in the course of, and for the purpose of, exercising your functions as a police officer." 5. "on 15 September 2015, you used a service-provided weapon without authority when you used your police issued handcuffs on Alexander Fuchs otherwise than in the course of your ordinary duties." 6. "on 15 September 2015, you gave a prohibited weapon, being your police issued handcuffs, to Alexander Fuchs, without authority." 7. "on 16 and 17 September 2015, you were untruthful, or at the very least, less than fully frank, in the account you provided to your supervisors about the reasons your police uniform and handcuffs were located at Alexander Fuchs' residence." 8. "you failed to adequately secure NSW Police property, being your police issued handcuffs, OC spray, extendable baton and ammunition, by keeping the items in an unsecured toiletry bag at your residence." 9. "you were in possession of a prohibited weapon, being non-police issued handcuffs, without authority." 10. "you allowed Alexander Fuchs to be in possession of a prohibited weapon, being non-police issued handcuffs, without authority." 1. The alleged conduct was said to be contrary to the: Police Act; Police Regulation 2008 (NSW); Weapons Prohibition Act 1998 (NSW); Weapons Prohibition Regulation 2009 (NSW); Firearms Act 1996 (NSW); NSW Police Force Code of Conduct and Ethics; NSW Police Force Handbook; Procedures for Managing Conflicts of Interest Policy; Declarable Associations Policy and the Procedures to Manage Declarable Associations – Individual Responsibilities; and the Use of Resources Policy. In respect of each allegation particulars were provided of the way in which it was said any of these instruments were breached. 2. In his response to the Notice, dated 22 February 2017, the applicant denied Allegations 1, 2, 3, 7, 9 and 10 but admitted Allegations 4, 5, 6 and 8. He detailed the basis of his denials and, in respect of the admissions, provided statements in mitigation and/or apologies for his conduct. 3. The respondent was satisfied that each of the allegations had been made out on the evidence before him. Having regard to the applicant's conduct and integrity the respondent lost confidence in the applicant's suitability to remain a police officer. 4. As was noted by the applicant's Counsel when the hearing of the matter began, the position described in [5] changed markedly. Counsel opened as follows: The applicant's application has shifted immensely from when he first dealt with his response to the investigation report through to the filing of his evidence in the Commission. To outline clearly the issues that the applicant sees as being in dispute in the case; the applicant admits all of the core primary facts that are relied upon by the respondent that ground the allegations. He admits all of the allegations except for the allegation that he was deliberately untruthful to his supervisors, Inspector Haywood and Senior Sergeant Sykes in the discussions he had with them on 16 September 2016. It is somewhat in dispute that he was less than fully frank with respect to the allegations about the disclosures that he made on 16 September. As the Commission will see the evidence is somewhat ‑ the applicant is vague as to precisely what he said and some of the allegations of being less than fully frank arises from the fact that his memory is poor in that regard. The applicant concedes that he was less than fully frank in relation to the uniform issue. However, he puts forward some subjective and mitigating features in his evidence in order to explain to the Commission why it was that he proceeded in that way. So they are really the only issues that are centrally in dispute as such. All of the other allegations are admitted by him in his evidence. … Just to go through the issues relied upon in order to seek the order be set aside, the applicant submits that the order is unjust because he is not guilty of the deliberate untruthfulness. And that it is unreasonable because the allegation of untruthfulness is based on inferences, which, after hearing the evidence, in my submission, would not support those findings to the relevant standard. The applicant submits the order is harsh because of its consequences for his personal and economic situation. That it is harsh because it is disproportionate to the gravity of the mission [sic] [misconduct] and it is harsh because it is disproportionate in light of his particular subjective circumstances. The Evidence 1. The applicant made two statements. The first, dated 22 September 2017, constituted his primary evidence and the second, dated 9 November 2017, constituted his evidence in reply. Attached to his first statement was a folder containing, among other things, a number of medico-legal reports. He was cross-examined. 2. The applicant also tendered statements from: * Craig Patrick John Birrell; * Mathew Price; * Gabriel Michael Scarvelli; and * Reverend Canon Dr Colin Gordon Aiken. 1. Attached to each of these statements was a character reference written by the maker of the statement. In each case the witness expressed awareness of the s 181D Notice. They nonetheless expressed support for the applicant's return to the Police Force identifying qualities in the applicant which they had observed in the several years each had known him. None of these witnesses was required for cross-examination. In cross-examination of the applicant it was suggested that none of the referees had said in their statement or reference that they had seen the applicant's first statement. He accepted that, but asserted that he had, with the exception of Reverend Aiken, discussed it with each of them. Those discussions took place, he said, after 22 September 2017 and before the hearing. The applicant could not be more precise about when he spoke to the witnesses or as to what he had shown them. He said he gave them an opportunity to withdraw their statements but they were willing to let them stand. 2. Mr Birrell expressed his belief that the alleged conduct was "out of character with the person I know". Mr Price expressed a similar opinion. Mr Scarvelli said that for the reasons he had outlined, "I cannot imagine that the supposed accusations in the served 181D notice be true, except for anything that Matthew has come forth and admitted prior or during the investigation." Reverend Aiken said that he had "always found Matthew to be an extremely dedicated and highly respected police officer, who is always ready to serve the community that he, is sworn to protect." 3. The applicant also tendered a report from Dr John Lam-Po-Tang, the applicant's treating specialist Psychiatrist. He was not required for cross-examination. 4. The respondent read affidavits by: * Superintendent Ian Dickson; * Inspector Kirsty Heyward; and * Lisa Sykes 1. The Superintendent was not required for cross-examination. Inspector Heyward and Senior Sergeant Sykes were cross-examined. 2. The respondent tendered a bundle of documents called the "Commissioner's Tender Bundle". The bundle included documents relevant to the respondent's consideration of the allegation and his decision to remove the applicant as a police officer. The Commissioner also tendered: * A letter dated 17 October 2017 from the respondent's solicitors to the applicant's solicitors; and * A letter dated 18 October 2017 in response. 1. In the letter of 17 October the respondent sought confirmation that the applicant was no longer seeking to allege that the removal was unreasonable or unjust and that it was therefore limited to the contention that the removal was harsh for the reasons set out in paragraph 7 of the Application. 2. In their response the applicant's solicitors indicated that the contention was that the removal order was harsh because: * of its consequences for his personal and economic situation; * it is disproportionate to the gravity of the misconduct; and * it is disproportionate in light of his particular subjective circumstances. 1. Further, the applicant solicitors advised that the applicant contended that: * the order was unjust because he is not guilty of (deliberate) untruthfulness; and * the order is unreasonable because the allegation of untruthfulness is based upon inferences which could not reasonably have been drawn. 1. The response therefore was consistent with that part of counsel's opening set out at [6]. 2. I can begin the review of the evidence by dealing with the non-controversial material in a summary way. The Applicant's Personal Background 1. In his first statement the applicant described himself as a single, homosexual male, aged 40 with no children. He resided alone. He also detailed his childhood which was marked by domestic violence. His natural father, he said, was violent and abusive to both him and his mother. 2. His parents divorced when he was 8. He was sent to live with his aunt. His father did not want to visit or communicate with him. After about a year he returned to the family home to reside with his mother and sister. 3. His father remarried. By that marriage the applicant has 2 step-sisters with whom, he said, he shared a close bond. 4. Subsequently, his mother had boyfriends one of whom began to reside with them. This man was violent and abusive to the applicant. His mother later became violent and abusive to him also. 5. From about 1988 the applicant was placed in private care homes. He regularly visited the family home on weekends but had no room of his own in that dwelling. 6. The applicant completed his HSC at Parramatta High School. Shortly before undertaking those exams he moved to live independently in shared accommodation. 7. During his time at Parramatta High he formed a close relationship with the Carlin family. He regards Mr and Mrs Carlin as his parents. 8. The applicant has not spoken to his natural father for many years. Since the events of 2015 his former close relationship with his sister has become strained. He attributes his removal from the police force as a source of embarrassment to her. 9. The applicant's mother is chronically ill and he and her partner are her principal carers. He is under pressure to assist his mother and her partner financially. 10. The applicant said that his homosexuality was a source of difficulty with many, including his natural family. It was a matter of concern, he said, during his nursing career. In his time in the police force there had been mixed responses and he felt, on occasion, excluded socially at work. 11. Although he enjoyed nursing, it is a career to which he does not wish to return. He has always wanted to be a police officer and that is what he wishes to continue to do. He felt working at the Coroner's Court allowed him to combine his nursing skills with being a police officer. He enjoyed working there until interpersonal issues between him and his supervisors led, in 2014, to a workers compensation claim. Medical Evidence 1. Dr Lam-Po-Tang provided a report dated 21 September 2017 in response to a request from the applicant's solicitor. 2. In that report the doctor noted that he had first seen the applicant in March 2015 on referral from his general practitioner. He had provided regular consultations since that date. 3. On the initial consultation he diagnosed a Major Depressive Disorder (although see [42]). A variation to the applicant's medication was prescribed. He was reviewed in April and June 2015 when he reported improved mood but also sick leave for psychiatric and physical complaints. The applicant also reported a difficult relationship with two of his supervisors at the Coroner's Court, leading to anticipatory anxiety prior to meeting with them and a fear of being criticised and treated unfairly. 4. When reviewed in August 2015 the applicant reported increased sick leave which he attributed to psychiatric symptoms. He felt isolated in the police force, without friends or confidants. He felt additionally isolated on the basis of his sexuality. 5. When reviewed again in October the "raid" (as it was called by the doctor) on his friend's house had been undertaken. He had been told he would be investigated. He reported "marked distress and anxiety" when discussing the issue with his two managers "Kirsty and Lisa". He felt burnt out and suicidal. His medication was increased. 6. On review on 15 March 2016 he reported that a recommendation had been made that he be charged and he had been interviewed for 2 ½ hours. He found the interview exhausting and draining. He also described the interview as "heated at times". I observe in passing that, having read the transcript of the interview, it appears that the applicant became "heated at times". The officer conducting the interview, Detective Sergeant Brooks, and the applicant's support person, Sergeant Hedges, intervened to calm the applicant and suggest he "take his time" and "answer the question". For example, at a point in the interview dealing with the documents he "reviewed" for Mr Fuchs the following exchange takes place: Q251 O.K. When you went through the documents that Alexander Fuchs obtained through GIPA, did you notice what agency of the New South Wales Police Force was investigating him? A … Drug team RES Q252 O.K. I suggest to you, Matthew, that it wasn't, whereas the documents in there relate to the State Crime Command in Chemical Operations. A I didn't, those documents, I wasn't aware of Q253 OK A Because if I was, I would've declared it Q254 O.K. I've viewed those documents, and a lot of that correspondence there relates to information that was obtained by the State Crime Command, not Redfern RES. A O.K. What I know is, is that this ongoing bullying and harassment complaint from Alex was going on for years. So I was reading documents left, right and centre what he got. So he got freedom of information documents from ANSTO and everything else. I didn't want to get involved with any of the legality stuff, because that's a conflict to me. Q255 O.K. I reviewed that material, especially that large folder --- A Yeah Q255 --- as referred to number 1, we've marked. And from reading it, it's very obvious that there's an investigation in relation to Alexander Fuchs and his possible involvement in the manufacture of prohibited drugs. Do you agree with that? A On that folder? Yes. Q256 Yes. A But not the folder that I read. Q257 In terms of the drugs that he was allegedly manufacturing, what was it ---- A I don't, I thought it was methamphetamine, from what I read. Q258 O.K. A I'm not sure. Q259 Being a prosecutor and having studied offences in the Crimes Act, how serious is the offence of manufacture prohibited drug? A Why are you asking the obvious? Q260 [12.00] Well, I'm asking that question. A Um, that's, to me, is, the answer is, can be anything, because it all depends. Q261 O.K. Is it an offence that can be dealt with summarily, or--- A Why are you asking me questions you know the answer to? Q262 Because you have to answer the questions, Matthew. A Why? Q263 Is It, because we just want to know your knowledge, because it goes into the--- A Yeah, and I've given you my knowledge. I know you are trying to pinpoint me down the fact that I reviewed evidentiary material and I didn't disclose it to my supervisors. And I've quite clearly said to you, the reason why I reviewed it, from a personal level, not an evidential level. I did the evidential level by myself. And you keep asking the same questions a million different ways. And you're trying to put me into a pigeonhole. Q264 I'll just stop you Mathew. We're not putting you in a pigeonhole. There's different issues, and the evidence comes into effect at different times. This isn't a criminal, this is a directed interview--- A Yeah, I know. Q264---and you can't just turned around and say to me, "I don't want to answer that", unless you claim self-incrimination. This is a simple question --- A Well, then --- Q265 I'm not, I'm not pinning you, I'm trying to ascertain your knowledge of certain things. That's all I'm doing. And the simple question is, what is your knowledge, how serious is the offence of manufacture prohibited drug? A O.K. Define "seriousness". Q266 All right. What sort of imprisonment term would a person receive --- A I don't know. Q267 O.K. It is an offence that would be dealt with at a Local Court or District Court? A District Q268 O.K. Matthew, you've been a police officer for 13 years, is that correct? A Yes Q269 And when you reviewed this material provided to Alexander Fuchs --- A Can you please clarify what material? Q270 [12.01] O.K. I refer to the information from GIPA, document 1. A No. I didn't review all that, so therefore I didn't review it all. Q271 O.K. All right. A We can get down to semantics now if you want to. Q272 Sorry. Matthew, there is no need to get angry. It's, the departmental interview, it's my job as an investigator --- A And I've given you the answers quite clearly. Q272 --- to ask these questions. No, you haven't. You're getting argumentative. A O.K. Fine. Q273 Did you at any time feel or think to yourself this may be a conflict of interest? A Yes. Q274 Did you approach any of your bosses at work and tell them that your friend Alexander Fuchs was suspected of being involved in the manufacture of prohibited drugs? A No Q275 Is it therefore safe to assume that you did not seek their opinions in relation to whether this was suitable of you to provide him with advice? A I didn't provide him with advice, and that was contradictory to your other two questions. Q276 In what, what sense? A You said "provide him with advice". You did not say that in your first two questions, so what, and your now assuming that I did provide advice. SERGEANT KYLIE HEDGES O.K. I think, just ask, answer the questions one at a time, just slowly. Take your time. If the question being asked is not clear to you --- A Well, that's not clear, 'cause I didn't provide him advice. SERGEANT KYLIE HEDGES O.K. You're rushing. I don't want you to rush. I just want you to answer the questions clearly. I want you to relax and think about your answer before you answer. Is that fair? DETECTIVE SERGEANT BROOKS Q277 Yes. I'll rephrase the question. Matthew did you approach any of your bosses at work and ask them their views in relation to you looking at that material for Alexander Fuchs, that being information he received from GIPA? A No. (Emphasis added) 1. After he returned to work on 14 March 2016 he said he was "grilled" by Lisa who accused him of "letting the team down". He opined to Dr Lam-Po-Tang that his supervisors had facilitated conflicts between him and colleagues. 2. The applicant was subsequently reviewed in August and December 2016 when he reported deteriorating mood. He had been advised prior to the August review that a recommendation had been made to terminate his employment. In December he had received contradictory evidence about the possible termination of his employment. 3. Dr Lam-Po-Tang considered that the applicant would not be able to work with his two supervisors. He detailed a treatment plan which he expected would cause the applicant's prognosis to generally improve. He expressed a qualified opinion about a return to nonoperational duties and a guarded opinion about a return to full duties. 4. In his report of 3 April 2014 Associate Prof Michael Robertson expressed the following opinion: Mr Matthew Carlin is a 36-year old man who presents with evidence of an adjustment disorder with anxious mood as a consequence of what he experienced as bullying and harassment in the course of his employment as assistant to the Coroner. … It is always difficult for a psychiatrist to determine which version of events is to be preferred, however Mr Carlin presents as a competent historian who wishes to return to his duties without his having to fear the problematic behaviour of his colleagues, perceived or otherwise. … I note with interest Mr Carlin's early developmental history. I find it extraordinary that a person with such a disrupted childhood has been able to maintain a stable work history, albeit with a paucity of interpersonal relationships. I suspect that perhaps some of his early difficulties may have sensitised him to the behaviour of his colleagues but do not view this as being evidence of a pre-existing condition. Indeed, there was no evidence of any previous psychopathology 1. In his report of 10 March 2015 (by which time the applicant had returned to the Prosecution Command), Dr Lam-Po-Tang diagnosis was recorded as "a partially resolved non-melancholic Major Depressive Disorder." 2. In a report dated 22 July 2015 Dr Sampson F. Roberts expressed the following opinion: Having regard to the totality of the available information with respect to Mr Carlin, it is evident that he developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood consequent upon the challenges that he encountered in the workplace. … Having regard for Mr Carlin's presentation at the time of his attendance for assessment, it is evident that his psychiatric condition has improved significantly. He did not describe the persistence of symptoms of the severity that he experienced previously and it is evident that he has largely resumed normal workplace duties with some minor exceptions. In his current workplace, according to Mr Carlin's account, he is functioning satisfactorily and he indicated his expectation that he would be fit to resume normal duties. (Emphasis added) 1. Although the medical evidence may be described as non-controversial its relevance is a different matter. The Applicant's Career Background 1. The applicant began studying nursing in 1996. He completed his Bachelor of Nursing in 1999. He worked as an enrolled nurse and as a registered nurse between 1997 and 2002 when he attended the Goulburn Police College. He continued to work as a registered nurse on a casual basis until 2006. Thereafter his qualification to practice as a nurse lapsed. 2. Prior to his posting to the Prosecution Command in 2009, where he remained until his removal, the applicant had the following postings: * from 2002 to 2003 at Burwood Police Station in General Duties * from 2003 to 2004 at Redfern Police Station in High Visibility Duties * from 2004 to 2006 at Burwood Police Station in General Duties * from 2006 to 2009 at Burwood Police Station As Brief Handling Manager and Gay and Lesbian Liaison Officer At Prosecutions Command he had the following postings: * from 2010 to 2012 Police Prosecutor at Burwood and Ryde Local Courts * from 2012 to 2013 Police Prosecutor at Downing Centre Local Court * from 2013 to 2014 Sergeant Assisting the Coroner at Glebe Coroner's Court * from 2014 to 2017 Police Prosecutor at Downing Centre Local Court Police Prosecutions Command 1. The structure and responsibilities of the Police Prosecutions Command ("PPC") were explained by Superintendent Dickson who is the Director of Operations for PPC. In his affidavit the Superintendent said: The PPC is responsible for prosecutions of criminal cases in the Local Court, Children's Court, Drug Courts and assisting in the Coroner's Court. In the Local Court, the PPC handles matters on behalf of the NSWPF and other government agencies. The PPC is overseen by the Commander of Police Prosecutions, Chief Superintendent Anthony Trichter. I report to Chief Superintendent Trichter and as Director of Operations for the PPC, I am responsible for the management of all 110 local courts in NSW and all Police Prosecutors, of which there are currently about 350. The PPC is divided into four regions which are each managed by an Inspector, who reports directly to me. Each region is then divided into 'clusters', which are supervised by an Area Prosecutions Co-Ordinator (APC), who holds the rank of Senior Sergeant. An APC is responsible for and oversees the day-to-day management of the prosecutor officers allocated to their cluster. 1. Specifically as to the responsibilities of Police Prosecutors the Superintendent said: Generally speaking, those Police Prosecutors are, and Mr Carlin was, responsible for: (a) prosecuting matters in the Local Courts on behalf of the NSWPF and other government agencies; and (b) providing advice and guidance to officers of NSWPF outside the courtroom. This advice may include advice as to the prospects of a charge against an individual, whether the evidence warrants a criminal charge or regarding the sufficiency of evidence in a criminal prosecution. … The role of Police Prosecutor has a high level of responsibility and autonomy, particularly when compared against other officers at the rank of Constable and Senior Constable. They predominantly work independently and without direct supervision as there is only one Police Prosecutor per matter. Police Prosecutors are in a position of trust and they have obligations to both NSWPF and the Court and are required to carry out their duties in a manner consistent with the Barrister's Rules. A Police Prosecutor also has to exercise discretion and make key decisions regarding the prosecution of a case. For example: (a) In preparation for a hearing, a Police Prosecutor will review the brief and determine whether there is a prima facie case or not. If a Police Prosecutor determines there is not a prima facie case, then they can make recommendations to withdraw the matter. In order to withdraw the matter, the Police Prosecutor is required to seek the approval of the Command from where the matter originated. (b) If there is a prima facie case, the Police Prosecutor then determines whether there are reasonable prospects of a conviction. If a Police Prosecutor determines there are no reasonable prosects of a conviction, the Police Prosecutor seeks approval from the Command from where the matter originated to withdraw the matter. (c) If the matter proceeds, the Police Prosecutor is responsible for determining what witnesses and evidence to call and rely on in order to support the prosecution, and for cross-examining the Defendant's witnesses. (d) The Police Prosecutor also makes submissions regarding the case, including submissions on the sentence that should be handed down. 1. To become a Police Prosecutor the officer must make an application, participate in an interview and undertake a psychometric test. If deemed suitable the officer will then undertake the Prosecutors Education Program ("PEP") which is an internal training program taking 12 – 15 months to complete. The Superintendent said of the PEP: As part of the PEP, police officers are trained specifically in various pieces of legislation including the Crimes Act 1900, the Law Enforcement (Powers and Responsibilities) Act 2002, the Drug Misuse and Trafficking Act 1985 and the Weapons Prohibition Act 1998. As part of the PEP, the Police Prosecutors are required to attend lectures and then sit twelve separate examinations on these specific Acts. There is also a significant component in PEP in respect of the professional standards of a Prosecutor based on the notion that a Prosecutor is a minister of justice. 1. The Superintendent also noted that, as a result of performance concerns arising in 2014, the applicant's then supervisors (Inspector Pauline McCann, Senior Sergeant Sasha Harding and Sergeant Samantha Ferguson) attempted to implement a performance enhancement agreement with him. At that time the applicant was stationed at the Coroner's Court. The applicant made a hurt on duty claim for psychological injury based on alleged bullying and harassing conduct by Inspector McCann. He was absent from work for a period. A return to work program was developed and Superintendent Dickson participated in case conferences in May and August 2014 which, having regard to medical advice from his treating practitioner, resulted in the applicant's transfer to the Downing Centre Local Court. Circumstances Giving Rise to the Allegations The evidence of Superintendent Dickson 1. For most of 2015 Superintendent Dickson was relieving in the role of Commander of the PPC. Inspector Frank Reitano was relieving as Director of Operations. Inspector Reitano advised Superintendent Dickson that a search warrant had been executed at the residence of a person named Alexander Fuchs on 16 September 2015. There was some evidence suggesting that illicit drug manufacture was taking place at that address. The Superintendent's evidence continued: As part of the search of Mr Fuchs' residence, the police officers located a number of items of Mr Carlin's uniform and appointments. I understood that Mr Carlin had disclosed that he was friends with Mr Fuchs and that he had been involved in previously providing him some advice. 1. The Superintendent was concerned about the developments concerning the uniform and appointments. He was also concerned about the suggestion that the applicant had provided advice to Mr Fuchs. He was informed that the matter was being dealt with by Professional Standards Command ("PSC") as it involved allegations of potential criminal conduct. 2. The Complaints Management Team ("CMT") at PPC determined to monitor the matter involving the applicant and would await the outcome of the PSC investigation. Superintendent Dickson explained: Every Command has its own CMT and it is generally comprised of a selection of senior officers at that Command. In PPC, the CMT is chaired by me as the Director of Operations and is comprised of the Professional Standards Manager, the Executive Officer and the managers of each of the four regions of the PPC. The CMT is responsible for managing the administration of complaint files and overseeing any departmental investigations or criminal investigations that it is in charge of. 1. In March 2016 Superintendent Dickson was advised of the outcome of the PSC investigation. It had been found on the balance of probabilities that the applicant had engaged in criminal conduct. The Commissioner's delegate, Assistant Commissioner Gallagher, had decided to exercise his discretion and not approve commencement of criminal proceedings against the applicant. The PSC was to further investigate allegations of non-criminal misconduct. 2. In May 2016 the investigation report prepared by Detective Sergeant Brooks from PSC was provided to the CMT. The CMT accepted the findings of Detective Sergeant Brooks and decided, with one exception, that no further investigation of the matters was required. 3. The exception was in relation to a set of non-police handcuffs found at Mr Fuchs' residence. Mr Fuchs alleged the handcuffs belonged to the applicant. A supplementary investigation was undertaken by Inspector Kelly from PSC. The Inspector found insufficient evidence to support criminal charges but the departmental issue was sustained. 4. On 27 July 2016 the Superintendent: convened an extraordinary CMT meeting where we considered both the Investigation Report and Supplementary Investigation Report. Again, the CMT determined to ratify Detective Inspector Kelly's findings and was of the view that no further investigation was required. At that meeting, the CMT determined that the matter was serious enough to warrant reviewable action under the Police Act. I therefore arranged for the Investigation Report, Supplementary Investigation Report and all the material that I would rely upon to make my finding to be served on Mr Carlin on 3 August 2016 as part of a process referred to in NSWPF as the "Lancaster Process" where an officer has the ability to respond to the findings in an investigation report before any disciplinary action is taken. As the officer's Commander, I am required to consider any such response as part of my consideration of the officer's conduct. 1. The Lancaster Response, which had been prepared by the applicant's (then) solicitor and (then) barrister, was received on 24 August 2016. According to the Superintendent's evidence: Mr Carlin made serious allegations against Inspector Heyward and Senior Sergeant Sykes. He alleged that they "colluded" and "fabricated" the discussion they had with him on 16 September 2015. Mr Carlin also denied that he ever referred to advising Mr Fuchs on the GIPA documents (even though he had made that admission in his directed interview with Detective Sergeant Brooks on 9 March 2016, as I observed in the transcript of that interview which was annexed to the Investigation Report). Mr Carlin further alleged that Inspector Heyward and Senior Sergeant Sykes had "workplace issues" with him and that they were therefore biased against him. 1. Superintendent Dickson was very concerned about these allegations in the response because: "the allegations suggested that Inspector Heyward and Senior Sergeant Sykes had been deliberately dishonest and that they had lied in their reports to senior officers and also in their directed interviews as part of the investigation. Dishonesty in such circumstances, if substantiated, may warrant disciplinary action against those officers. Further, if the allegations were true, it would substantially affect the evidence against Mr Carlin. I therefore made further enquires with both Inspector Heyward and Senior Sergeant Sykes." 1. After discussions with the two officers and reviewing the contemporaneous notes each had made of their conversations with the applicant, the Superintendent decided the allegations against them had no basis. He: "therefore formed the view that Mr Carlin had simply made this allegation of collusion up. I was very disappointed that Mr Carlin could make such serious allegations against his superiors with no basis for them. In NSWPF, integrity is one of the core values. I am aware that section 7 of the Police Act 1990 enshrines this by requiring all officers to place "integrity above all". To allege that another officer has behaved in a way that is dishonest or for an improper purpose is akin to alleging that the officer has not maintained integrity. It is therefore extremely serious. In light of those matters, and given that I was of the view that the allegations by Mr Carlin were baseless, I formed the view that his conduct in making the allegations themselves demonstrated that Mr Carlin was not acting with integrity. Whilst the above matter was sufficiently serious conduct of Mr Carlin alone, there were other issues raised in the Lancaster Response where I felt that Mr Carlin was being disingenuous. For example, at paragraph 90 of the Lancaster Response, it states "Carlin did not consider such handcuffs to be prohibited weapons as they were imporl[ed] from Gennany through customs," referring to the Prohibited Handcuffs. However, I am aware from the training undertaken by Mr Carlin as part of the PEP, that he was trained and examined specifically on the Weapons Prohibition Act 1998. Mr Carlin's duties included providing advice to operational police and prosecuting officers for this very offence. I have no doubt he knew that the Prohibited Handcuffs were considered a prohibited weapon, either at the time that they were in his possession or when they were in Mr Fuchs' possession. It was his duty to report his knowledge of this matter to another police officer. I was also extremely concerned in Mr Carlin's conduct. In considering the Investigation Report, the Supplementary Investigation Report and the Lancaster Response, I determined that there was no reasonable basis for Mr Carlin's uniform and handcuffs to be at Mr Fuchs' residence and he clearly had a conflict of interest in advising Mr Fuchs in relation to the GIPA Documents. I was also concerned that he had not reported a declarable association because, in my view, he had considered material that referred to potential charges of illegal drug manufacture and, even if those allegations were not ultimately pursued, it fell squarely within the kind of matter that Mr Carlin should be concerned about in relation to Mr Fuchs. Whilst Mr Carlin's conduct was, in my view, unacceptable for a police officer generally, I believed it was exacerbated by the fact that he was a Police Prosecutor. His conduct in reviewing potential charges against Mr Fuchs and considering sufficiency of evidence is directly in conflict with his duties and obligations as a Police Prosecutor to NSWPF and to the Court to properly prosecute criminal charges. This conflict is highlighted, in my view, by the fact that Mr Fuchs lived in Alexandria and if prosecuted for any crimes, such prosecution would most likely be allocated to Mr Carlin's small prosecution team within PPC allocated to the Redfern Local Area Command. There was therefore the possibility that Mr Carlin could have been assigned to provide advice or prosecute a charge against Mr Fuchs. I was not satisfied that the Lancaster Response appreciated the seriousness of the allegations against Mr Carlin or how his conduct was manifestly inappropriate for a police officer in his position." 1. Superintendent Dickson therefore decided the matter should be referred to the Internal Review Panel ("IRP") for consideration as to whether reviewable action should be taken under section 181D of the Police Act. 2. The Superintendent noted differences and inconsistencies between the applicant's Lancaster response and his response to the notice under section 181D. He also noted the admissions now made in the applicant's evidence filed in these proceedings. While acknowledging the applicant was now admitting to the conduct and seeking to provide an explanation for it, he concluded that the applicant was dishonest in his previous responses. He considered these inconsistencies raised: "serious questions about Mr Carlin's integrity and suitability to be a police officer and, even more importantly, as a Police Prosecutor. The relationship between a Police Prosecutor and the court and between the Police Prosecutor and the police officers for who they appear in the criminal justice system is, at its core, one underpinned by integrity. Similarly, a police officer is in a position of authority and trust within the community and, as such, needs to display the utmost integrity." 1. He was also: "aware that when Mr Fuchs was charged with the offences arising out of the search warrant, Mr Carlin was requested to provide a statement in the case against Mr Fuchs. Mr Carlin refused to do so. He further stated that if he was called as a witness in the prosecution of Mr Fuchs, he would ask for a certificate from the court preventing the use of the evidence against him on the grounds of self-incrimination. This made the prosecution of Mr Fuchs more difficult and ultimately a number of charges were withdrawn. Whilst this is his right to seek, the fact that Mr Carlin placed himself in this situation in the first place was the very type of conflict of interest that he was obligated, as a police officer, to avoid." 1. Superintendent Dickson said: "I formed the view that I could not continue to assign Mr Carlin duties as a Police Prosecutor, or even as a police officer more generally, as I did not have confidence that he would act with the required integrity." The evidence of Inspector Kirsty Heyward 1. At the time of giving her evidence Inspector Heyward was Manager of the South West Metro Court Unit in the PPC. Between 2012 and 2017 she was the Manager for the City and Specialists Courts within the PPC. Included in the responsibility of the latter is the management of the Downing Centre Court Complex cluster, the Burwood Court cluster and the Adult Drug Courts. She reports to Superintendent Dickson. 2. The applicant was stationed at the Downing Centre Local Court cluster in 2012 when Inspector Heyward commenced there. She did not know him well and, shortly after, he transferred to the Coroner's Court. She was aware that in 2014 he transferred back to the Downing Centre as a result of a bullying and harassment claim although she did not know the detail of it. She was involved in some case conferences in relation to the applicant's return to work. 3. At the Downing Centre the applicant reported to former Senior Sergeant Lisa Sykes. Inspector Heyward had cause to speak to Mr Carlin on a few occasions about his sick leave and in relation to certain minor complaints about his performance. 4. On 16 September 2015 she was in Senior Sergeant Sykes office when the applicant entered and requested to speak to them. She recalled a conversation between the three of them to the following effect: Applicant: "A friend's house has been subject to a search warrant and items of my uniform were in the house". Sykes: "Why is your uniform in the house?" Applicant: "Because he was interested in joining the police and wanted to try it on. My handcuffs were also there. He came over last night and I was getting my cuffs out to bring in for the appointment checks. He wanted me to try them on him and I did. I then realised that the handcuff key was on my belt at his house, so he left with my cuffs and took them off when he got home. He was going to drop them into me today at lunch." Heyward: "This might be an offence, what is your relationship with this person?' Applicant: "We have been friends for 8 years. I had looked over some documents with him regarding an allegation about 3 years ago and advised him if there was sufficient evidence to charge." 1. To that point Inspector Heyward did not know the identity of the friend to whom the applicant referred. Even so she was concerned about two matters. First, she was seriously concerned about the applicant suggesting that he was providing advice to a civilian about sufficiency of evidence. Second, she was concerned that the applicant appeared to have failed to store securely his uniform and appointments as required. She said to him: "Matt that is an outright conflict." 1. At that point she received a phone call and left the office in order to take it. The call was from Inspector Reitano. The Inspector provided information consistent with what she had just been told by the applicant. He also advised that the search warrant had been executed because of a report of suspected drug manufacturing. 2. She then returned to the office and said: "Matt this will be investigated as a criminal offence." "I am not going to ask you any further questions. I need you to print out two policies, the Declarable Associations Polic[y] and the Procedures for Managing Conflicts of Interest. Once you have printed and read those policies I need you to declare what association you have with this man. You also need to consider what you think you should do with this friendship. What is more important to you? Being a police officer or that friendship? Where does your friend live?" The applicant replied: "Surry Hills. He has just called me and said that the police know the uniform belongs to me and the police told him that they knew who I was." 1. Inspector Heyward directed Senior Sergeant Sykes to relieve the applicant of prosecuting duties until a formal management plan was in place. Later that day she directed the applicant to not have any contact with Mr Fuchs and to report to her any attempt by Mr Fuchs to contact him. 2. The Inspector had no specific recollection of the applicant appearing nervous, uncomfortable or confused during the discussions. She said he spoke clearly and articulately in volunteering to her and the Senior Sergeant the information provided. It was not an interview but a very short discussion. She said: "I disagree that Mr Carlin was in any way confused or not properly expressing himself. Mr Carlin was very clear­ when he disclosed the information about the search warrant and his uniform and handcuffs being located at Mr Fuchs' residence. He was very clear when he disclosed providing advice to Mr Fuchs in relation to materials Mr Fuchs had obtained from NSWPF. Mr Carlin articulated precisely what had occurred in his disclosures to me and Senior Sergeant Sykes. I therefore do not understand how he claims to have been confused or that his "dyslexia was at play and affecting [his] ability to say accurately what [he] was trying to communicate. I was not properly expressing my thoughts..." (as set out in paragraph 137 of the Carlin Statement). I did not observe any inability to communicate the matters. I also do not recall any confusion or ambiguity in the discussion that we had. There was nothing in the way that he spoke or acted or in his demeanour that otherwise suggested he was suffering in the way he describes in the Carlin Statement." 1. In the circumstances Inspector Heyward made a formal complaint, about the conduct the applicant had revealed to her, to the Professional Standards Manager by email the following morning. The email was in evidence and was consistent with her statement. 2. Sometime around August 2016 the Inspector became aware the applicant had alleged in his Lancaster response that she and Senior Sergeant Sykes had colluded to fabricate the evidence of his admission to them of providing advice to Mr Fuchs about the sufficiency of evidence against him. The Inspector firmly denied the allegation and said further: "I was astounded by this allegation. Firstly, I found it extremely offensive to suggest that Senior Sergeant Sykes and I had in any way acted improperly or unethically. I am a senior police officer and I understand that integrity is a core part of everything I do. A suggestion of fabrication, collusion or that I would have invented something is simply shocking to me when I did nothing of the sort and when it goes against my fundamental values as a police officer. Secondly, it did not make sense to me to suggest that I had invented the detail about him advising Mr Fuchs on the sufficiency of evidence as I had no knowledge of who Mr Fuchs was, that there was any investigation against him, that there were proposed charges or that charges were not pursued prior to our conversation on 16 September 2015. " 1. The Inspector also denied that the applicant's sexuality was ever an issue between them. She said that she was openly gay and did not treat people differently because of their sexual orientation. Further, Inspector Heyward said she gave the applicant a lot of additional support when he transferred from the Coroner's Court because she wanted him to succeed in his role and feel supported in the cluster. 2. She was cross-examined principally about three matters. The first was her knowledge of the applicant's medical status. In that regard she admitted she was aware of the diagnosis that the applicant suffered from an adjustment disorder but not the more detailed aspects of that diagnosis. In her management of him she was guided by the Injury Management Officer. She was aware and had observed that he could be more defensive in some circumstances but not anxious. She did not observe the applicant to exhibit a heightened sensitivity compared to other workers. She denied specifically, as to the discussion on 16 September 2015, that the applicant was aggressive. She described him as "quite deliberate", "quite determined" to tell them something. 3. The second matter was her perceptions and observations of the applicant during the discussions of 16 September 2015. She was, in my assessment, fair in her observations. She accepted that she did not know what "he was thinking and trying to say", but she saw no signs of anxiety or confusion. She accepted he was "concerned" about what he was freely volunteering to her but did not regard him as exhibiting any unusual physical behaviour. She was unmoved as to her perception of the applicant as clear and articulate on the day. She saw no sign of confusion. 4. The third matter was as to the applicant's withdrawal of the allegation of collusion and fabrication and his apology to her and Senior Sergeant Sykes. She was asked if she accepted his apology. She said: You know, I did think about this before I came here today, and it would be easy for me to say I accept Matthew's apology, but in my mind the allegations he made about myself and my integrity, I can't accept an apology. They were deliberate, it was a deliberate decision upon him to make those allegations and you know, regardless, now we're in this environment and Matthew is trying to get his job back, and he apologises to Lisa and I, and you know, it affects us for someone to make those allegations about us ‑ about me and my integrity and also Lisa. She had 35 years in the job and this was pretty much the last dealings that she had, I think, before she left after 35 years. They were so unfounded, and had no basis whatsoever. I can understand if someone says I do not really remember the conversation, I can totally accept that, but it wasn't that. He said that we made them up. We made that conversation up. 1. I note it was not suggested to Inspector Heyward that she had a conflict with the applicant. 2. Counsel for the applicant suggested that the Inspector's response in [79] should be taken into account when considering her evidence as to the observations of the applicant summarised in [78]. He was careful to make clear that he was not seeking to impugn her credit, but invited the Commission to consider whether her evidence on the point may not be as objective as it otherwise might be because of the substantial insult she suffered. 3. Counsel sought to support that submission by comparison with Senior Sergeant Sykes. He submitted she did not appear to have "as much emotional attachment" to the insult to her integrity and was more willing to make concessions as to the applicant's emotional state on the day. I consider that the evidence of the Inspector and Senior Sergeant Sykes were consistent particularly about the applicant being clear in what he said and that he did not appear confused. I see no reason to reduce my assessment of the cogency of the Inspector's evidence. 4. I found the Inspector to be an impressive witness and I accept her evidence. The evidence of Lisa Sykes 1. Ms Sykes joined the police force in 1983 and retired in October 2016 holding the rank of Senior Sergeant. Immediately prior to her retirement she was attached to the PPC. In 2004 she became the APC for the Downing Centre Court cluster. 2. Senior Sergeant Sykes first met the applicant in 2012 in the few months before he was transferred to the Coroner's Court. She was aware of "some difficulties" he experienced with other police officers that ultimately led to his transfer back to the Downing Centre in 2014. Upon his return the applicant was allocated a mentor, Sergeant Bryan Petheram. 3. The evidence she gave of the conversations and course of events on 16 September 2015 involving the applicant, Inspector Haywood and her was consistent with that of the Inspector. She was unaware, at that point, of the identity of Mr Fuchs. She was also unaware, and remained unaware, of the charges in relation to drug manufacturing, the search warrant and the reasons for it. She made a record of the conversation in her police diary later that day. Those contemporaneous notes are consistent with her account in her statement. 4. Her recollection of the applicant's response to the question from Inspector Heyward about his relationship to the then unidentified person was: "He is a friend. I have known him for about 8 years. I had looked over some documents for him about an allegation of drug manufacture to advise him if there was sufficient evidence to charge." 1. Senior Sergeant Sykes also gave evidence of a statement made to her after the Inspector had left the office to take a call. She said the applicant said words to the effect: "I knew that there had been a drug investigation at his work. He is a biochemist and his ex-partner made allegations that he was making drugs in the lab at work and he was then fired. I only saw the FOI. The investigation was suspended. But I wasn't looking at that, I was looking at his bullying and harassment claim, that's what he wanted advice about as I've been through that kind of stuff as well." 1. When the Inspector returned Senior Sergeant Sykes relayed to her what the applicant had said. Senior Sergeant Sykes expressed the view to the Inspector that he was attempting to recant from his earlier statement. 2. She acknowledged that the applicant looked worried but said that he was coherent at all times and did not appear to her confused. She attributed his "worried" appearance to the seriousness of the situation. She disagreed that the applicant was having difficulty expressing himself. She regarded his statements as very clear. 3. As to the applicant's suggestion of collusion and fabrication by Inspector Heyward and her, she said: I was very upset by the suggestion that I had been dishonest in my account of the discussion with Mr Carlin or that I had in any way colluded with Inspector Heyward or fabricated any part of my account of the discussion. I had never heard of Mr Fuchs before Mr Carlin approached the office to talk with me and Inspector Heyward on 16 September 2015 and I had no reason to fabricate the discussion. Given that I was Mr Carlin's direct supervisor at the time, I found the allegation offensive and a serious allegation for a junior officer to make against his superior without any evidence or basis. 1. In cross-examination Senior Sergeant Sykes was asked about the applicant's state of mental health in the period from 2014 when he returned to the Downing Centre. She was not privy to any detailed diagnosis but was aware there was "a condition". She was aware there was "anxiety" but did not notice any change in his state of health in that period. 2. As to his capacity to relate to others, she thought the applicant was no more difficult to interrelate with than others she supervised. She thought he was overly sensitive and could take things the wrong way. Those characteristics led to some interpersonal difficulties with others in the workplace. 3. A particular focus of the cross-examination was Senior Sergeant Sykes perception of the applicant's emotional state during the conversations on 16 September 2016. She was prepared to accept, because the circumstances the applicant was admitting to were serious, that he would have been "worried", "anxious" and "nervous" and that was the way he appeared to her. She did not observe any particular physical manifestations of these emotional states beyond the look on his face. She formed these opinions because: 'Well as I say he appeared to me to be tense. He was tense in the way he was talking. He certainly had a worried look on his face when he walked into my office. For those reasons but probably the look on his face more than anything." (T61.11-.14) 1. Senior Sergeant Sykes was prepared to accept also that the applicant would have been "embarrassed" by the developments. She had a vague recollection that the applicant said something about "dress-ups" or "playing dress-ups" in connection with his uniform but she didn't recall any statement about a "uniform fetish" or take the reference to "dress-ups" in that way. Her diary note contained a reference to "dress-ups". She made no connection between the applicant's homosexuality and "dress-ups" and/or storing the uniform at a friend's house. 2. The cross-examination then turned to the design and location of Senior Sergeant Sykes office. Although she could not say for certain, she doubted that the door would have remained open in the conversations of 16 September. 3. Senior Sergeant Sykes was also asked about her knowledge of the applicant's interpersonal conflicts with supervisors. She had a general awareness that issues arose at the Coroner's Court. There was no suggestion of a conflict between her and the applicant. She was also unaware of any conflict with Inspector Heyward. 4. I found Senior Sergeant Sykes to be a reliable witness, willing to acknowledge matters in the applicant's favour and confident and careful about the conversations with the applicant. I accept her evidence. The Applicant's Response to the Allegations The obligation of integrity 1. In Toshack v Commissioner of Police [2009] NSWIRComm 31; 181 IR 420 a Full Bench of the Commission (Boland J President, Walton J, Vice-President and Staff J) said at [44] – [45]: In respect of integrity, the word has a wider meaning than honesty, although it may countenance honesty. The Macquarie Dictionary Online (fourth edition, 2005) relevantly defines integrity as "soundness of moral principle and character; uprightness; honesty." The online Oxford English Dictionary (Oxford University Press, 2008), in defining "integrity" when it is used in the moral sense, states: "a. Unimpaired moral state; freedom from moral corruption; innocence, sinlessness. b. Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity." 45 Thus, when this Tribunal is called upon to review the Commissioner's decision to remove a police officer on grounds relating to the officer's integrity (or more particularly, lack of it) the Commission will consider whether the officer is a person of sound moral principle and character. That may involve questions of the officer's honesty, uprightness and sincerity. The Commission will also have regard to s 7 of the Police Act which sets out a "Statement of values of members of NSW Police Force", foremost amongst which is that: Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, … 1. At the outset of the cross-examination the applicant agreed that, as a sworn police officer, he had an obligation to act in a manner "that places integrity above all". He was asked his understanding of that obligation and replied (T 9.11-27): Q. What did you understand by that obligation? A. That I am truthful and uphold the duties of the police force above my own. Q. Is that all you understood from that obligation? A. That would be the core. Q. So you accept that it required you to act honestly when working as a police officer? A. On and off duty. Q. You accept that it required you to be honest when answering questions from your superiors? A. Yes. Q. You accept that it required you to be honest with them about the events and matters that lead to your removal? A. Yes. Q. That understanding that you have ‑ had ‑ that included when you were answering any questions in writing? A. Yes. Q. That obligation ‑ did you understand this? That it meant and required that you were not to allege or suggest that your fellow officers had colluded in giving evidence if there was no basis for it? A. Yes I agree. Q. I suggest to you that you knew that at all times leading up to your removal? A. Yes I agree. (Emphasis added) 1. He was then asked his understanding of the seriousness of the matters alleged against him (T 10.29-49). Q. In any event, in light of your evidence, you accept now don't you, what the Commissioner, that is my client, says about how these matters constitute breaches of your obligations as a police officer? A. I understand from the Commissioner's perspective and the conclusions he has drawn. Q. You accept how serious these matters are, that is the matters that lead to your removal? A. Yes they are very serious. Q. And you also agree and accept don't you how serious the Commissioner viewed those matters? A. Yes quite rightly. Q. In those circumstances, you understand why the Commissioner lost confidence in your suitability to remain a police officer? A. Based on his conclusions, yes. Q. They were very serious matters weren't they? A. Yes. What all the matters collectively yes, but what I am saying in relation to 3 and 7 I wasn't deliberately untruthful. (Emphasis added) The developments in the applicant's responses 1. As has been noted the applicant's response in respect of some of the allegations has changed markedly over time. There were six stages, prior to his giving evidence, in the applicant's response to the matters raised against him. 2. The applicant, under protest, took part in a directed interview conducted by Detective Sergeant Brooks on 9 March 2016. The interview, known as an "E.R.I.S.P." (an Electronically Recorded Interview of Suspect Person) or more simply "ERISP", was part of the investigation undertaken by Detective Sergeant Brooks under the auspices of the PSC. That was the first stage. 3. The second was the Lancaster process and the Lancaster response by the applicant. 4. The third stage was the response to the s 181D notice. 5. The fourth stage was the application initiating these proceedings. 6. The fifth stage was the first statement made for the purposes of these proceedings. 7. The sixth stage was the second statement. 8. In cross-examination Mr Darams contrasted the various ways in which the applicant's responses to the allegations changed during these stages. Allegations 1, 2 and 3 1. The common ground in relation to these three allegations has its foundation in the material obtained by Mr Fuchs pursuant to an application under the Government Information (Public Access) Act 2009 (NSW) (the "GIPA material"). 2. Early in the course of the ERISP the applicant was asked about the GIPA material. In essence he said he read the material for two purposes. The first was related to an allegation of bullying and harassment of Mr Fuchs at his workplace. The second, which was done with "due diligence", was to review the material to decide whether his friendship with Mr Fuchs was something he needed to declare to his supervisors. In that regard he relied upon an email indicating the investigation of Mr Fuchs in relation to drug manufacture and supply had closed. In those circumstances he felt no need to declare his association. 3. It is evident from the passage extracted at [37], in particular the response to Q 263, that the applicant in the ERISP acknowledged reviewing evidentiary material" but drew the distinction that he did the "evidential level" by himself. The interviewer observed these inconsistencies. 4. In his investigation report Detective Sergeant Brooks concluded in relation to this issue (at 17 to 19 of the Commissioner's Tender Bundle, detailed supporting references omitted): "[the applicant] denied having any knowledge of there being an issue regarding the continuity of exhibits in the investigation, and reiterated he only read an email from a RES officer which suggested they were no longer proceeding with the investigation. As the interview progressed however he contradicted himself with respect to both of the above assertions and stated the following at different times: "And that's why when I went through this diligently, I remember saying to him, well, there's a problem with the continuity of the exhibit, but I didn't go into TI, TIO's. I didn't go into listening devices I didn't go into all the police methodology. When questioned in more detail about his initial remarks to Inspector Heyward and Senior Sergeant Sykes he said, "Sufficient evidence to charge based on the inconsistency of the exhibits that was the only thing. Not on anything else". He also said "Because to me, it was, just a quick way to simply say I looked at the email and the in-continuity of the certificate and that was it. And he said, "Well, is that enough? Or something like that, I can't remember clearly. But that was it". "No, not all of it. And this is what I'm saying, the little bit of information I read was basically an issue with the continuity of drugs, and that was it, and they weren't, they weren't proceeding any more". … Stated had he been shown all of the GIPA material by Fuchs as presented to him during the interview, he would've gone straight to his supervisors and ceased the friendship. He did not recall reading any documents that were screen dumps E@gle.i product. However later in the interview accepted the document he read pertaining to issues with the continuity of the exhibits was an E@gle.i note. Believed Fuchs was being investigated by Redfern RES, and had he known it was the Chemical Operations Team at SCC he would have declared it immediately. Based on material he read he believed the prohibited drug under investigation was methamphetamine. He further accepted this offence is dealt with at District Court level. Considered that while reviewing the material he did think there may be a conflict of interest, but did not inform his superiors, seek their opinions, or tell them after the fact. Admitted viewing a number of COPS event reports but denied reading the event and case report that related to Fuchs involvement in the manufacture of drugs at ANSTO. Admitted reading a document that highlighted what chemicals were located at the ANSTO facility, but stated Fuchs provided him with an explanation which he believed was plausible, that being the lab was not locked or secure and essentially it could have been anyone. … He is aware of his obligations with respect to reporting conflicts of interest, but believed in this instance there was nothing to declare based on material he read. (Emphasis in original) 1. He returned to the purpose of his review in his second statement (at paragraph 16) in these proceedings. In that statement a different version is advanced. He admits reviewing the material and that Mr Fuchs asked him to advise whether there was sufficient evidence to charge. So the review was done with Mr Fuchs not "on his own". The applicant sought to draw a distinction as to the purpose of his review and advice. He was advising in relation to a bullying and harassment allegation he said. 2. He understood that if there wasn't sufficient evidence Mr Fuchs might conclude that his employer was using the allegation of criminal conduct to bully and harass him. I simply observe in passing that it was not explained how that would happen in circumstances where his employment had been terminated. More importantly, whatever purpose Mr Fuchs had in seeking his advice, the applicant was providing advice as to the sufficiency of evidence to sustain a criminal charge. That was the very matter of concern to the respondent. 3. He also said he reviewed it for the purpose of satisfying himself that he had no declarable association or conflict. 4. The admission in relation to reviewing the "evidentiary material", whether to provide advice or to satisfy himself as to a conflict or association he was required to declare, is inconsistent with his various denials that he did not review "evidentiary material", just an email saying there was a problem with the continuity of exhibits. 5. It is significant also that the applicant recalled reading documents about the drug alleged to have been manufactured (see the extract at [37] Q 257) and the chemicals available at ANSTO. Absent the thesis of a false criminal charge, these matters do not appear to have a connection with a bullying and harassment claim. There is a more understandable connection with his consideration of "sufficiency of evidence" as referred to in the quotes extracted in the report. The reliance on an explanation by Mr Fuchs as to security at the laboratory also seems more readily connected to the prospects of a criminal charge. 6. In his Lancaster response the applicant, through his then lawyers, undertook a forensic analysis of the adequacy of the evidence in relation to Allegations 1 and 2 and, as has been earlier noted, an attack upon the credit of Inspector Heyward and Senior Sergeant Sykes in relation to Allegation 3. The response was argumentative in the extreme. By way of example, it criticised reliance on the applicant's career experience by submitting there was no evidence that the applicant "used his career experience". The response also suggested that Inspector Heyward and Senior Sergeant Sykes had "invented" and/or "fabricated" their accounts of the conversations with the applicant and had colluded in doing so. To the extent he made certain admissions in his directed interview these appear to have been withdrawn. 7. In his response to the s 181D notice, by which time he had changed lawyers, the applicant admitted Allegations 4, 5, 6 and 8 but otherwise maintained his denials. The applicant acknowledged reviewing the GIPA material but said that there was no suggestion that he was reviewing "evidentiary material in respect of alleged criminal behaviour of Mr Fuchs". His professional opinion was in relation to medical issues related to his nursing experience. He continued to deny the accounts of Inspector Heyward and Senior Sergeant Sykes and referred back to his Lancaster response thus maintaining his attack on the credit of his supervisors. 8. The application to the Commission makes no admissions beyond those made in the s 181D response. At that time the applicant continued to contest Allegations 1, 2 and 3. In respect of the last of these allegations he continued to deny he made the statements that his supervisor's say he made. It is important to bear in mind that the applicant denied making the statements. He did not say he could not recall what he had said. He did not claim privilege against self-incrimination and say nothing. He denied the accounts advanced by his supervisors. 9. In his first statement in these proceedings the applicant admitted Allegations 1 and 2. In relation to Allegation 3 (and 7) he accepted that he probably said words to the effect of those attributed to him by his supervisors. He said that he did not have a good memory of the conversation but he was not intending to be untruthful or to mislead them. He advanced a number of mitigating factors based on his health and emotional state to suggest he was confused and unclear in his responses to them. The applicant denied that he gave professional or skilled advice about evidence. He said he'd read an email about continuity of exhibits and the investigation had been stopped. That is what he told Mr Fuchs. That is plainly at odds with the admission of Allegation 1 and contrary to his evidence in his second statement discussed at [114] and [115]. 10. In his second statement he admitted he had no factual basis for the allegations against his supervisors. He also says he was "truly ignorant" of the consequences of making such allegations. He said he deeply regretted making the allegations and "sincerely apologised" to the Inspector and Senior Sergeant Sykes for "making this mistake". He also refers to his answers in the ERISP in which he said he could not remember what he said in the conversation but he would not have been untruthful. The difficulty with that evidence is that the position was abandoned in his Lancaster and s 181D responses which followed the ERISP. 11. The progression in his responses to the allegations, ranging from attack as the best form of defence to open, albeit limited, admission with reliance on mitigating factors, in my view reflects upon the applicant's understanding of the obligation of integrity as a police officer. He decided from the outset to defend himself against these allegations. He did not give consideration to his obligation of placing integrity above all as required by s 7(a) of the Police Act. The fact that he permitted and then sustained an unfounded attack on the integrity of his supervisors also raises a serious concern about his integrity and his understanding of that obligation. 12. The attitude of self-preservation was reflected in his responses to questions in his evidence before the Commission. He was cross-examined at length on the issue of deliberately misleading his supervisors. In relation to his uniform and appointments he accepted he misled them, by not providing the real reason or all of the reasons for his conduct, but maintained that was not deliberate. He also maintained that he did not deliberately mislead them or be less than fully frank in connection with his review of the GIPA documentation. 13. The effect of admitting Allegation 1 was to admit that he had "reviewed evidentiary material concerning Alexander Fuchs and provided a professional opinion to him regarding the sufficiency of evidence for potential charges". That is substantially what his supervisors said he told them on 16 September 2015. Up to this point he had denied their account of the conversation and accused them of invention and collusion. This was no inadvertent admission. 14. Mr Darams cross-examined the applicant about the ramifications of admitting Allegation 1 for his response to Allegation 3. His evidence was (T22.47 – 23.9): Q. In your conversations with Inspector Haywood and Ms Sykes on 16 September 2015, you first told them me in relation to Mr Fuchs you had looked over some documents and you advised Mr Fuchs whether there was sufficient evidence to charge him for manufacturing drugs, correct? A. Not the first thing. Q. One thing that you told them? A. One of the things. Q. And that is consistent with you admitting and accepting allegation 1, correct? A. I believe so. 1. That evidence contrasts markedly with the position he had maintained up until his first statement. He had persistently denied (save for the limited admission in the ERISP highlighted in the quote extracted at [113]) advising Mr Fuchs about the sufficiency of evidence against him. That purpose for reviewing the GIPA material was not one he identified in his earlier Lancaster and s 181D responses. 2. The implications of this matter went further because the evidence of Senior Sergeant Sykes was that, when the Inspector left them to take a call, the applicant offered a different description of what he had done. He sought to suggest, after Inspector Hayward had referred to the conflict of interest, that he had not reviewed the material for the purpose of advising on the sufficiency of evidence and he had not given Mr Fuchs that professional advice. Again he was cross-examined on that aspect (T 23.11 – 25.2) Q. After you made that disclosure you then told Ms Sykes that you were advising Mr Fuchs about a bullying and harassment matter? A. I don't remember verbatim the conversation, but I believe she asked, "What do you mean by that?". Q. One of your responses, or your response, was you were advising Mr Fuchs about a bullying and harassment claim, correct? A. Yes. Q. What I want to suggest to you is that when you made that disclosure you were attempting to resile from your previous disclosure that you had advised Mr Fuchs about whether there was sufficient evidence to charge him in relation to drug manufacturing. What do you say about that? A. I disagree. Q. You accept allegation 1 now? A. I accept allegation 1, yes. Q. The full extent of allegation 1, you would accept, compromised your position as a police officer, correct? A. It would on the face of the allegation. Q. There is no other basis upon which you-- A. What information I did see, which was only an email which said there was - it was based on an email that I read re the continuity of exhibits. Q. Can I ask you to go to your s 181D response, page 721? A. Yes. Q. Do you have that open there? A. Yes. Q. You see the allegation set out there? A. Yes. Q. Paragraph 1 you denied the allegation? A. Yes. Q. The allegation which you understood was that you failed to identify a conflict of interest involving Alexander Fuchs when you reviewed evidentiary material concerning Alexander Fuchs and provided a professional opinion to him regarding the sufficiency of evidence or potential charges against Alexander Fuchs. You have now admitted that allegation? A. Yes. Q. What I am suggesting to you is that that conduct compromised your position as a police officer, is that correct? A. That is correct. Q. That is correct? A. Yes. … Q. What I'm suggesting to you is as at 16 September 2015 the conduct the subject of allegation 1, which you have now admitted, compromised your position as a police officer? A. I now realise it has, yes. Q. I want to suggest to you that you realised as at 16 September that your position was compromised? A. Yes. Q. You did. What I want to suggest to you is that your latter disclosure about advice you were providing Mr Fuchs about bullying and harassment is not correct, you were attempting to resile from your more truthful disclosure earlier. What you say about that? A. I disagree because also in my ERISP I have discussed that one of my thoughts I had was they would have thought I would have looked at the COPS system. Q. The fact is, Mr Carlin, having appreciated that you were compromised as at 16 September 2050 you were being limited in the information that you disclosed to Inspector Haywood and Ms Sykes. Do you agree with that? A. I disagree. I tried to answer all the questions they were giving me. DARAMS Q. The fact is, you were trying to, by your responses, cover yourself? A. No, I disagree. 1. By attempting to resile from his earlier stated position the applicant was misleading his supervisors and seeking to protect himself from a circumstance the gravity of which had become clear to him following the statement by Inspector Heyward about a conflict of interest. 2. The alteration in his description of what he was doing in reviewing the documents was no mere clarification. It was offering a completely different classification of what he had done. The first explanation was that he was advising as to the sufficiency of evidence to support a criminal charge. The second was advising about a bullying and harassment claim. The nature of the change and the course of events point to a deliberate course of conduct aimed at self-protection. 3. That conclusion is strengthened by his admission that he was aware at the time of his conversation with his supervisors that providing advice to Mr Fuchs about the sufficiency of evidence to support a criminal charge compromised his position as a police officer. 4. In view of his admission of Allegation 1, his acceptance of the account of the conversation given by his supervisors, his admissions in his second statement and the dissembling responses in cross-examination I conclude that he did deliberately mislead and was deliberately less than fully frank about his advice to Mr Fuchs. Allegation 7 1. In his first statement the applicant accepted he misled his supervisors about the underlying reason for leaving his uniform at Mr Fuchs residence but denied that was deliberate. While he expressed regret for his overly aggressive approach in his earlier responses he made no express apology to Inspector Heyward and Senior Sergeant Sykes for the attacks upon their credit. That did not occur until his second statement was filed. 2. The applicant agreed that he now admitted that the words attributed to him by his supervisors, or words to similar effect, were said. The cross-examination addressed the lack of honesty in the information provided to his supervisors. He agreed that he had received a call from Mr Fuchs before the conversation with them. Based on what Mr Fuchs had told him, he agreed, it was obvious that he would be asked why his uniform and appointments were at Mr Fuchs residence. The cross-examination continued (T 11.42 - 12.49): Q. The real reason we see from your evidence of the statement of 22 September ‑ the real reason you stored your uniform and appointments at Mr Fuchs' house was he had a uniform fetish? A. The main reason yes. Q. The underlying reason why you stored it there? A. Underlying yes. Q. When you gave the uniform and appointments to Mr Fuchs you knew that he had a fetish? A. Yes and I didn't give them to him per se. Q. You allowed him to store them and retain possession of them? A. Yes. Q. What I want to suggest to you is that with that knowledge you knew that he would live out that fetish and wear the uniform didn't you? A. Possibly yes. Q. Well why else would you let him retain it? A. I didn't go into it with him. Q. You must accept that if you allowed him to retain possession of your uniform and appointments because of his uniform fetish there was a real risk he might use it? A. Yes I agree. Q. You would have also suspected he was likely to wear that uniform in some form of sexual encounter with another person? A. I believe that he possibly would have done it with his partner. Q. His partner was not a sworn officer was he? A. No. Q. You knew all of these things at the time you were asked this specific question by Inspector Haywood didn't you? A. Yes. Q. It is not the case, is it, that you actually stored your uniform and appointments at Mr Fuchs' place because you did not want to see them because they reminded you of your bullying and harassment claim is it? A. Yes it was also part of the reason. Q. You now accept that you ‑ can I ask you to ‑ do you accept what you told Inspector Haywood on 16 September was not the truth? A. No. Q. You don't accept that? A. No. Q. You accept though that you misled Inspector Haywood? A. By not giving that information there was a misleading involved but it wasn't a deliberate misleading. Q. But you nonetheless admit allegation 7 to the extent you were less than fully frank? A. I was answering their questions as best I could being embarrassed and being in that situation where I found myself. (Emphasis added) 1. The questions then focussed on the issue of deliberateness (T 13.13-36): Q. Do you accept ‑ you can agree with me or disagree ‑ but the question she asked you was a relatively straight forward question? A. The question itself yes. Q. And a relatively straight forward answer; the underlying reason why you did that was because Mr Fuchs had a uniform fetish, you agree with that? A. I agree with that. Q. You could have given that answer to Inspector Haywood couldn't you? A. I could have, yes. Q. You didn't give that answer to Inspector Haywood did you? A. No. Q. I want to suggest to you that you deliberately did not give that answer to Inspector Haywood, what do you say about that? A. I disagree. Q. See I want to suggest to you that you chose not to give her that answer, what do you say? A. I disagree. Q. I want to suggest to you that you chose to give her a different answer? A. I disagree. 1. The applicant was further tested on the proposition of deliberate choice. He agreed that the evidence he gave in his first statement, at paragraph 136, indicated he, at the time of attending the supervisor's office, was "highly embarrassed", feared a connection would be made to his homosexuality and that he would be ridiculed. He also agreed he was in "defensive mode" at that time. Mr Darams then asked (T 15.17-46) : Q. What I'm suggesting to you and this is your evidence but I am putting this proposition to you; that you actually thought about the fact that you were homosexual, agreed? A. Yes. Q. You thought about the fact that Mr Fuchs had a uniform fetish, correct? A. Yes. Q. And you thought that there would be a connection between the two in the circumstances, correct? A. Yes. Q. And you felt embarrassed by this, correct? A. Potentially embarrassed, yes. Q. And to the extent that you thought you would be ridiculed, that was because if you disclosed the fact that you left the uniform with Mr Fuchs because he had this uniform fetish, that these connections would all be made, correct? A. Yes. Q. See, that is why I want to suggest to you that you made a deliberate decision not to disclose the underlying reason to Inspector Haywood, because of all these things? A. No I disagree. Q. See, what I want to suggest to you Mr Carlin, is that in fact at the time when you had a conversation with Inspector Haywood you were being careful about what you said to her, correct? A. No. (Emphasis added) 1. The applicant continued to resist the propositions advanced to him by Mr Darams that he carefully chose his answers to his supervisors' questions. The applicant agreed that he did not "initiate the reason" in his ERISP with Detective Sergeant Brooks, but maintained that he nevertheless agreed that the uniform fetish of Mr Fuchs was the real or main reason for leaving his uniform with him. He contended that, as he agreed with Detective Sergeant Brooks that Mr Fuchs had a uniform fetish, and that was in the same section of the interview about the reason for leaving it with Mr Fuchs, he had effectively disclosed the reason in his ERISP. It need hardly be said that his reasoning in this respect is fallacious. 2. His evidence in cross-examination is to be contrasted with what he said in his first statement at paragraph 146. There he stated: I kept from them and thereby misled them the fact that the underlying reason for storing the uniform with Fuchs was because he wanted me to let him store it with him because he had [a] sexual fetish of men in uniform. I did not do this with a deliberate intent to mislead or deceive them. I was not thinking clearly and I was terrified of being embarrassed and, in fear of ridicule and isolation and other adverse work social consequences that I believed he [sic] would follow if I told them. 1. Setting aside the denial in the second sentence, which is inconsistent with the balance of the paragraph, the passage is an admission of a deliberate decision to present reasons to his supervisors which were not the truth and were misleading. The reasons for his decision are disclosed. They are rational, understandable and indicative of a person thinking about what he might say and deciding upon a course of action to avoid adverse consequences for himself. The fact that other possible adverse consequences might arise was either not considered by the applicant or a risk he was prepared to run. Notwithstanding this evidence, the applicant disagreed, as illustrated in the paragraphs emphasised at [137], with those very propositions put to him in cross-examination. As will be seen, at [145], his evidence in re-examination contrasted in a similar way with the cross-examination responses. 2. It is also noteworthy that the evidence in [139] is not consistent with the answers in cross-examination recorded in [135] that he "didn't give it to him per se" and he didn't go into the use Mr Fuchs might make of the uniform. I regard that inconsistency as another example of the applicant disclosing as much as he can consistent with protecting himself. 3. Mr Carlin agreed that he could have, but did not, advance the real or underlying reason in his Lancaster response. As to that he said (T 18.28-50): WITNESS: The concern in relation to the Lancaster report was that we didn't know if there was going to be further criminal charges. And we were concerned in relation to that Lancaster report and I was particularly concerned if that Lancaster report that the information in that may lead to further criminal charges. DARAMS Q. In relation to the underlying reason why you stored ‑ allowed your uniform to be stored at Mr Fuchs' place? A. Yes. Potentially yes but there could be criminal charges with that. Q. You understood when you were giving instructions in relation to the Lancaster response that it was your opportunity to tell your Commander or the Commissioner any matter she should take into account in terms of what if any disciplinary process should be implemented? A. I agree but I believed in respect of the ERISP he had an underlying fetish and I should not have left my uniform there. Q. You understood that you would be given an opportunity to influence the decision in that regard, that is influence the decision in disciplinary action? A. Yes but we also understood that I could have had further criminal charges laid against me. 1. Mr Darams then put to the witness that he had several other opportunities, including his s 181D response and his application to this Commission, to give the reasons and explanations he advanced in his evidence but did not do so. He agreed. The process was then repeated in relation to being less than fully frank, which Mr Carlin admitted but denied being deliberately so. 2. The applicant's attention was drawn to his response to questions 311- 313 of the ERISP. In particular, attention was drawn to that part of his response in which he said (T 26.15-46): Q. "I told them as little as I could to cover myself because I was in defensive mode." What I want to suggest to you is that, that evidence demonstrates that you were being selective with what you told Inspector Haywood and Ms Sykes because of the consequences you knew that would follow if you told them the truth‑‑ A. I disagree because this ERISP was at the time of the interview with Lisa and Kirsty, my mind went blank. Q. Are we talking now about when you gave the answers on 9 March‑‑ A. This ERISP was reconstructed with what I thought had occurred based 6 months later after the conversation. Q. Are you saying that the evidence ‑ the answer you gave there is a reconstruction of things? A. In the sense of I know that I was in a very defensive mode, but I do know I was trying to be as honest and forthright as I could be. Q. You don't say that in there? A. I agree. Q. In fact, what you do say, you were telling them as little as possible so you could cover yourself? A. Then on the next answer, that's the truth because I went down there quite diligently and said this is exactly what's happened. That's why I tried to give them answers. Their first response to me was well, we know nothing about it. Q. What I want to suggest to you is, in fact, you were being quite deliberate and careful and measured in the answers you were giving Inspector Haywood and Ms Sykes on 15 September? A. I disagree because I mentioned the GIPA information, I mentioned the uniform was there, I mentioned I took responsibility on placing my handcuffs on his wrist, I placed responsibility for my uniform being there. (Emphasis added) 1. The applicant's resistance to the propositions advanced by the respondent needs to be seen in the light of his re-examination. When the cross-examination finished the luncheon adjournment was taken so the witness had some time to reflect and gather his thoughts. The first questions in re-examination were on the issue of deliberateness (T 46.7 – 47.2): Q. You were asked some questions Mr Carlin about how you had misled inspector Haywood in particular in relation to the uniform fetish held by Mr Fuchs? A. Yes. Q. It was put to you that you had a choice not to or to give the information about the fetish and you replied no. On what basis do you say you didn't have a choice? A. So when I said no it meant I was at the end of the thought process rather than at the start. So that I didn't think I did have a choice and that choice was not a choice to deceive her, it was simply a choice to protect myself from embarrassment. Not to get a better outcome, not to do anything like that, but simply to protect myself from the embarrassment of the association of being a gay male and having a uniform fetish about, and that was not me choosing not to tell her, but it was also on the basis of lack of trust in anything else, it was in the assessment of not being truthful, but trying to be truthful while protecting myself, so it wasn't a deception per se. Q. You were asked some questions about being in defensive mode. What is it that you meant in relation to your agreement that you were in defensive mode? A. So what I meant by being in defensive mode is I was in front of two supervisors I didn't trust and I was telling them all the information that I had to allow them to investigate into it and to put responsibility towards it but I also was careful not to disclose the fetish because of the implications and the negative implications, not because of my job but because of me personally. Q. You were asked some questions about, still on the uniform issue, that you did not deliberately mislead the officers when you withheld information about a fetish; on what basis do you say you didn't deliberately mislead? A. I didn't think. Deliberately mislead to me, I would mean carefully deciding not to give certain answers et cetera. In relation to the uniform I concede that I subconsciously would have made that decision and that's what I did do but in relation to advisement to do it as well on another time, I thought I gave Mitch Aston other valid reasons and I gave them all the information that I had. So I didn't deliberately mislead that. To me deliberately misleading would be me being careful and withholding everything. I was trying to answer the questions as much as I could, but being the difference with two people I didn't trust in an environment that was open, in an environment that I felt so vulnerable that I was put into. That was simply my basis of that one choice and I regrettably made it and I shouldn't have done it and I realise how erroneous that is now. I should have been totally honest with it but relaying all the information in the circumstances I just felt I was trying to answer the questions and I gave them all the information about the GIPA report, I gave them all the information I could, I didn't withhold anything, only that one point and I understand now that now reflects on my integrity but I can't take it back but I can only offer that as an excuse, I was just trying to protect myself but not to be misleading. (Emphasis added) 1. The highlighted passages from these responses illustrate that Mr Carlin does not fully comprehend the obligation of integrity above all. It is not consistent with that obligation that he withhold information to protect himself. Indeed the obligation requires disclosure even if it results in adverse consequences for oneself. These responses removed any residual doubt I had about the applicant's unconvincing responses to the questions posed in cross-examination. They lead me to reject the applicant's evidence that he did not deliberately withhold information from his supervisors. On the contrary I find that he was deliberate in withholding this information and was deliberately less than fully frank in his responses to them. Allegations against his Supervisors 1. The concern about the applicant's understanding of, and commitment to, the obligation of integrity as a police officer is heightened by his admittedly unfounded allegations against Inspector Heyward and Senior Sergeant Sykes. 2. The applicant accepted that he was aware from his role and training as a Police Prosecutor that the allegations he made were "very serious" and "very grave". He accepted too that he was aware that he couldn't make such allegations without a proper basis. 3. Notwithstanding his acceptance that he had no proper basis for the allegations (T29.36-38), and took responsibility for them (T 30.1 and T 30.23–26) he nevertheless sought to somehow mitigate his actions by reference to his training as a practitioner in criminal law. He said (T 30. 28 ff); Q. You accept it was your suggestion which you repeated on 23 February this year? A. Yes. But on 23 February, there was also their contemporaneous notes as well. Q. Well if that's right, even more reason for you not to make that allegation; correct? A. The concern with contemporaneous notes is the stuff in Lisa's notes that are not in her statement, and it's not in the police notebook and so the policies and procedures that I was taught weren't there, but I realise now it's not for me to decide and I shouldn't have done it. 1. The applicant said he could not offer a rational explanation for his conduct but resisted the proposition that it impacts upon his suitability as a police officer. He referred to the "emotional impact" and "emotional investment" (T31.33-45) of these events. He rejected that his conduct demonstrated a lack of integrity. He said (T32.1- 33.11): Q. Do you accept that that conduct alone demonstrates a lack of integrity on your part? A. No, I say it shows a lack of insight into what was the chain of events. Q. You don't accept it demonstrates a lack of integrity? A. No because I'm not distancing myself from it. I can't give a rational explanation, but it's not integrity. Q. Let's break it down. Suggesting where you accept there's no basis to do it, that two witnesses have colluded, don't you accept that that alone demonstrates a lack of integrity? A. The concern that I have is that I approached this whole matter incorrectly. I did it, in inverted commas. I've looked at it from my experience as a prosecutor, looked at holes in the evidence, that's what I initially looked at this matter over, and I realise now that I can't do that. I can't distance myself from my responsibility. I can't distance myself from the conversation that's occurred. I can't argue it because I can't remember it verbatim. Q. Are you trying to still leave open the possibility that you want to doubt the recollection of Inspector Haywood? A. Not now, no. Q. My question really was whether or not you accepted that making an allegation that two witnesses had colluded in their evidence‑‑ A. I can see that. Q. ‑ where there was no basis to do it, whether that demonstrates a lack of integrity? A. Not ‑ I'd say it shows a lack of professionalism, lack of naïvety. Q. But not integrity? A. What do you mean by integrity? Q. I'm asking you about your understanding of integrity? A. Integrity meaning lie. So yes, I suppose you could say it would on that basis. Q. You want to be reinstated as a police officer? A. Yes. Q. You understand that above all else integrity ‑ A. And I agree with you, that's why I'm not distancing myself from it now, and I realise what I've done in doing that response, but I can't offer a rational explanation. Q. Can I suggest to you the rational explanation is that you were trying to persuade the Commissioner and your Commander not to accept the evidence of Inspector Haywood and Ms Sykes and accept your explanation of these events? A. Yes, and I believe that was the whole gist of the Lancaster report, my response to the Lancaster report. Q. You accept full responsibility do you not, for making the allegations that Inspector Haywood and Ms Sykes colluded in their evidence? A. It was based on advice, but yes, I accept responsibility. Q. Full responsibility? A. Yes. Q. Likewise in relation to the allegation they had invented their evidence? A. Yes. … (Emphasis added) 1. The highlighted passages again lead to a conclusion that the applicant either does not comprehend the concept of integrity or he is attempting to tailor his answers to avoid perceived damaging admissions which would be directly contrary to the obligation of integrity above all. On at least two occasions in his evidence (T 46.50 – 47.1 and T 35.33-34) the applicant volunteered that his conduct reflected on his integrity. Yet in the highlighted passages above he takes a more narrow view of the concept. 2. I did not find the applicant an impressive witness. It seemed to me he often tailored his answers to assist his case on the issue he believed the cross-examiner was seeking to explore. As a result his evidence was, as the passages quoted above indicate, often inconsistent. The position is exacerbated when his various responses over time, as referred to in [102], are taken into account. Submissions Applicant 1. Counsel for the applicant confirmed the applicant's case was as he opened and as quoted at [7]. It is unnecessary to repeat that here. 2. The applicant accepted that he bears the burden of establishing on the balance of probabilities that the order was beyond power or harsh, unjust or unreasonable. On the disputed questions of fact the respondent bears the evidential burden of meeting the applicant's case, relying on Commissioner of Police v Morris [2017] NSWIRComm 1010. 3. The applicant submitted, citing Tredinnick v Commissioner of Police [2016] NSWIRComm 14, that in determining whether the respondent has discharged his evidentiary burden on the disputed issues, the Commission is required to have regard to the seriousness of the alleged misconduct and the gravity of the consequences flowing from such findings and vary the cogency of the evidence necessary to discharge the evidentiary burden accordingly. 4. Mr Doherty submitted the conduct in issue here, deliberately misleading one's supervisors, is of the most serious kind because it goes "directly to his core integrity". As such it needs to be assessed at the higher end of the cogency test. 5. Counsel provided a list of questions which he submitted needed to be answered in assessing the applicant's state of mind on 16 September 2015. They were: 1. When making the disclosures to Inspector Haywood and Senior Sergeant Sykes on 16 September 2015 the applicant submits that the following four questions are pertinent to the determination of the factual issues. 1. what extent did, if any, the applicant's residual symptoms of a resolving adjustment disorder mixed with anxiety and depressed mood contribute to his state of mind?; 2. was the applicant's residual symptomology triggered just prior to and on the 16 September 2015?; 3. was the applicant suffering from marked anxiety and other symptoms in paras 135‑137 of the applicant's first statement?; 4. was the applicant's will overborne to the extent that the withholding of information ‑ about the true reasons for the uniform being at Mr Fuchs' home ‑ justifies or excuses his lack of integrity in the circumstances set out in paras 137 to 146 of the applicant's first statement?. 1. It was submitted that a finding in favour of the applicant on one or more of those questions but not necessarily all of them, would provide a "pathway to reinstatement". Counsel for the respondent did not agree. He submitted that even if a finding were made in favour of the applicant, the Commission would need to be satisfied on the evidence that misconduct would not recur. There was no sound basis to find in that way. 2. Mr Doherty submitted that the starting point for the assessment of the questions was that the applicant was not cross-examined on these issues. It is important in assessing this submission to bear in mind the concession made at the outset of the case that the medical evidence did not draw any causal connection between the diagnosis of the applicant referred to in that evidence and the conduct or state of mind of the applicant. Counsel acknowledged that concession but submitted that the applicant was not cross-examined on what he said were his feelings at that time. 3. Counsel then rehearsed the medical evidence and concluded: The final submission to join the relevance of this is that it is submitted that when as a whole the evidence is considered, it supports the applicant's core and disruptive developmental history predisposes him to interpersonal sensitivities that cause him difficulties with dealing with certain supervisors in the workplace. The applicant's strong perception and whether that be right or wrong, it is a perception he holds, was that he was being subject to ongoing bullying and harassment in the prosecution command. 1. The applicant's submission continued by noting that, although the applicant's condition had stabilised by August of 2015, that is 4-6 weeks prior to the events of 16 September 2015, it was capable of being triggered by incidents in the workplace. Counsel did not identify anything in the medical reports to indicate or support the proposition that the applicant considered that Inspector Heyward and/or Senior Sergeant Sykes was bullying or harassing him. He referred to the applicant's self-reported reaction to the call from Mr Fuchs which prompted him to go to his supervisors and inform them of developments. Counsel submitted that the medical evidence, that is, Dr Lam‑Po‑Tang's expert report, and the applicant's evidence about his deterioration in the way he was feeling in the lead up to 16 September 2016 ought lead to a finding that, when he made the disclosures to Heyward and Sykes, there was a triggering of the underlying condition. Counsel submitted (T 96.19-28): It is submitted that the finding is supported and that those points support a finding to the effect that at the time of making the disclosures … to the supervisors … the applicant was suffering from anxiety and other symptomology of that underlying disorder. That commenced to operate on him after he read the reports on 14 September and that he felt shocked and overwhelmed when he received the telephone call from Fuchs that he had interpersonal sensitivities, including with his supervisors Inspector Heyward and Senior Sergeant Sykes; that he did not trust Inspector Heyward and Sykes and particularly Inspector Heyward from his evidence. 1. The applicant then submitted that the moral culpability of the deception is reduced accordingly and reliance was placed on Toshack v Commissioner of Police. 2. The submission at [161] presented two difficulties. The first was that it seemed to require a conclusion in relation to the effect of a medical condition without medical evidence to support it. The second, and related, difficulty was the submission seemed to me to be at odds with the concession made that the medical evidence did not establish a causal link between the condition and the conduct or state of mind. Those concerns led to the following exchange with Counsel (T 95.42 – 96.28): HIS HONOUR: As I recall his evidence yesterday he indicated that in response to the allegation of deliberately misleading, that he gave answers ‑ he answered all of the questions as best he could and I am paraphrasing, but consistent with protecting himself. DOHERTY: In relation to the fear that he had about the connection between the homosexuality and the uniform being at his house. HIS HONOUR: Whatever the connection, once he puts that qualification upon it consistent with protecting himself, doesn't that mean that he is considering what he is saying and editing it accordingly? DOHERTY: Yes, it does. HIS HONOUR: So it is a considered response. DOHERTY: It is a considered response to a degree but one needs to take into account all of the things which have been submitted which goes into the mix because to ignore them would be to place him in a totally different category because part of his case is that his will is overborne to the extent that ‑ if we can use that phrase, so that it feeds into his decision which was a poor one to not explain that it was in there because Fuchs had a uniform fetish. HIS HONOUR: One still comes to the proposition that that is a deliberate misleading of his supervisors for whatever reason, whatever motive it is a deliberate choice that he has made to mislead his supervisors. DOHERTY: I take your point in relation to that. To the extent that the words uttered is a deliberate decision but it is a factor to take into account as to what was at play because there are different degrees of intention in my submission. One can deliberately go about saying something with a conceived, deliberate intention to deceive someone as opposed to I am so utterly embarrassed. I am suffering from the subjective features which I have submitted on, the underlying disorder, the anxiety, the embarrassment, all the different factors that feed such that one at the time on a spur of the moment doesn't really have the opportunity to assess properly, and to then deal with the situation in a way that one would be fully frank. 1. Mr Darams response to the submission that the applicant's will was "overborn" was that there was no evidence at all to support it. I agree. None was identified beyond a repetition of the applicant's evidence about his "feelings" and the impact of his dyslexia. In my view, even if accepted, those aspects of the evidence do not support a finding that the applicant's will was overborn. The more so when one considers the evidence in re-examination as to the choice made as to the answers he gave and the preference of his own interest. 2. I can accept that the applicant became worried, nervous, concerned and even anxious when he received the phone call from Mr Fuchs advising that his residence had been searched and the applicant's uniform and many of his appointments had been found there. He had also been identified to the police conducting the search. He was an experienced police officer and an experienced police prosecutor. He would have known immediately that he was in trouble. I can accept too, that the circumstances may have made him apprehensive about being embarrassed and ridiculed. I do not, having considered the totality of his evidence, consider that his will was overborn. Nor do I accept that his dyslexia had an impact on his decision to be selective in what he said to his supervisors. 3. That finding is reinforced by my acceptance of the evidence of Inspector Heyward and Senior Sergeant Sykes. Neither of them observed that the applicant appeared confused or anxious. They recalled that he spoke clearly and articulately in making the disclosures to them. 4. The respondent contrasted the applicant's responses in cross-examination and in re-examination, which I have set out at [135]-[137] and [145], and submitted it is clear the applicant made a deliberate decision to be untruthful to his supervisors in order to protect his own interests. I agree. It follows that I do not find that the applicant's will was overborn. To the contrary, it seems to me the applicant's desire for self-preservation was at play and he made choices he believed would enhance his prospects in that regard. 5. Counsel for the respondent went further and submitted that, in the absence of evidence of a causal link between the medical condition and the conduct, the medical evidence is irrelevant. That evidence rises no higher than evidence that the applicant suffers from a medical condition and that may simply be taken to be coincidence. I accept that submission as to the cause of the applicant's misconduct but do not regard the evidence as completely irrelevant. It demonstrates matters, personal to the applicant, which can be weighed in considering whether the removal of the applicant is harsh. 6. Counsel for the applicant also referred to the applicant's answers, given in the ERISP, to questions about the storage of his handcuffs and other appointments as indicative of his integrity. The applicant as a police prosecutor, it was submitted, would be well aware of the consequences of admissions about possession and storage of prohibited weapons and his frank responses to those questions demonstrated that he had integrity. That is certainly something which weighs in his favour. On the other hand, by the time the ERISP was conducted it would have been clear to the applicant that there was not much room to manoeuvre in relation to those matters. The respondent submitted that telling the truth about some matters does not excuse or outweigh deception and dissembling in relation to others. 7. The applicant's submission also is undermined by the later decision to deny the allegations in his Lancaster response. It was not until the response to the s 181D Notice that he admitted Allegations 4, 5, 6 and 8. Although the applicant had different lawyers advising in relation to the Lancaster response he accepted full responsibility for the instructions he gave. 8. Mr Doherty submitted that there were twelve points which supported a conclusion that the applicant's subjective intention in reviewing the GIPA material was to advise about a bullying and harassment claim. They were: 1. On 6 February 2014 the applicant made a complaint that he was being bullied and harassed by his supervisors in the prosecution command. 2. The impact of his perception of being the subject of bullying and harassment in the workplace was on‑going which is evident from anxiety and symptomology of the adjustment disorder. It was triggered or flared up in July 2015 by the requirement to attend the annual conference. 3. A lot of the applicant's tension and emotional energy was being taken up by his conflict in the workplace and how it was being managed. 4. The applicant did not regard himself as having any friends in the police force. 5. Mr Fuchs was one of his closest friends, was homosexual and was someone he was physically attracted to and enjoyed spending time with for company. 6. Mr Fuchs went to the applicant's medico‑legal consultation and the applicant went to Mr Fuchs', both acting as support persons for each other in their respective workplace bullying and harassment claims. 7. The applicant trusted Mr Fuchs and did not suspect he was using or manufacturing prohibited drugs. 8. The applicant had a rational basis to believe that Mr Fuchs' ex-partner Stefan's allegation about the drugs was vexatious. The applicant believed Stefan had unprotected homosexual intercourse with Mr Fuchs whilst being HIV positive and misled Mr Fuchs that he was HIV negative. They broke up when Stefan suddenly returned to Germany. 9. It follows that it is a logical inference to draw that if Mr Fuchs was not being pursued in the allegation for manufacturing drugs with ANSTO in the chemical lab, that the applicant had reason to believe that ANSTO was using the fact that the allegation, which he believed to be vexatious, had been made to terminate Mr Fuchs' employment and, in turn, if done wrongly could demonstrate that Mr Fuchs' claim of being bullied had been made out. 10. Once he received the telephone call from Mr Fuchs on 16 September, he immediately knew he was in very serious trouble, that he had a conflict of interest and that he needed to declare his association with Mr Fuchs. 11. The applicant knew that his police uniform and handcuffs had been found during the execution of the search warrant at Mr Fuchs' home and that the GIPA documents, either were or certainly would likely be found by police. 12. The applicant openly inculpated himself by volunteering the disclosure to Inspector Heyward and Senior Sergeant Sykes about the GIPA documents. That is not the action of a man who is determined to conceal his wrongful conduct. It is a man who is seeking to be open and forthright about that. 1. The first point, it should be noted, relates to the applicant's time at the Coroner's Court. It does not involve Inspector Heyward or Senior Sergeant Sykes. The evidence in the ERISP and the Commissioner's Tender Bundle indicates that the GIPA application was made in February 2015 and documents were produced in April 2015. That timing correlates broadly with the disturbance flowing from the applicant's bullying complaint but there is nothing to suggest that informed his "subjective intention". 2. I have already dealt with the difficulties inherent in the second point as it relates to the time of the conversation with the supervisors. The report of Dr Roberts referred to at [43], in which he notes the applicant's significantly improved condition, suggests that Senior Sergeant Sykes and Inspector Heyward were not perceived as bullying or harassing him. If anything it suggests the contrary. 3. Further, there is no specific evidence of any correlation of his condition with the point at which he reviewed the GIPA material. 4. I do not see any particular significance in the third point beyond seeking to add to the weight of the second point. 5. What the fourth point has to do with his "subjective intention" is not clear unless it is to highlight his friendship with Mr Fuchs which is the substance of points 5, 6 and 7. The difficulty with point 7 is that, very early of his ERISP at Q100 and Q101 and again at Q105, the applicant acknowledged that the material he looked at related to Mr Fuchs' suspected involvement in the supply or manufacture of drugs. 6. Point 8 depends upon the evidence of, and relevance of, the allegation of unprotected sex. Presumably (ERISP Q 362), the applicant relied upon information given him by Mr Fuchs. In parts of his ERISP, however, the applicant describes Mr Fuchs as disorganised (ERISP Q 333), "aggravated by the paperwork", suffering from a mental illness (Q 335) and he and Mr Fuchs's partner would have to get him to calm down (Q 336). Why or how information provided by a person in that state provides a rational basis for a belief is not explained. 7. Point 9 builds upon that shaky premise. 8. All of this analysis depends, however, upon the acceptance of the proposition that the applicant was trying to help a very good friend who has sought his assistance. Even if that be accepted, however sceptical others may be about the rationality or logic of the propositions advanced, there is a point where a conflict of interest arises. The applicant's duty was to put his obligations as a police officer first and his friendship second. The applicant did not do that in this case. 9. Points 10, 11 and 12 revisit the discussion above in relation to Allegation 3. Points 10 and 11 form premises for the contention by the respondent of deliberate choice. 10. Further, the applicant's statement to his supervisors about reviewing the GIPA material was not "openly inculpating himself" as submitted in point 12. Consistent with my earlier findings, he did not realise the significance of his statement until the Inspector referred to the conflict of interest. 11. I do not regard any of these factors as shedding light on the applicant's subjective intention in reviewing the GIPA material. 12. An answer given to Q 362 of the ERISP highlights the lack of understanding by the applicant of the obligation of integrity. In the course of that answer the applicant said: "So he was saying in relation to the police st[u]ff that it was basically ANSTO trying to get him out. So he was, he was saying to me that was why he was getting it, to basically prove that the police has nothing, so therefore bullying and harassment is sustained. So the context of what we're looking at, to me, is not the pie [sic] that I was looking over. So we're just looking at the criminal stuff here, where with him and the focus was always on the bullying-harassment. This was always just tacked on to the end, almost as an adjunct of why he was being bullied." (Emphasis added) 1. That answer supports the proposition that Counsel sought to make good by reference to the 12 points. It misses the point however, because, whatever the applicant's motive or purpose, providing advice to his friend as to the sustainability of a criminal charge was in conflict with his duty of integrity as a police officer. 2. Counsel's submission did not necessarily contradict that conclusion. In the course of oral submissions I summarised the applicant's evidence and case on this point as follows (TS 135.13 – 26): Let me summarise it like this. As I understand it Mr Carlin accepts that he was considering whether or not there was sufficient evidence to justify a charge, from the point of view of advising his friend or providing information to his friend about an allegation of bullying and harassment by his employer of a vexatious complaint. DOHERTY: That's correct. HIS HONOUR: There is no issue that he was looking at that question the weight of the evidentiary material, but from the point of view of deciding that the claim was vexatious and therefore it is also a bullying claim. DOHERTY: What you have summarised is correct, subject to one issue. That is, that he did not review all of the material. 1. Counsel submitted that this "state of mind" of the applicant goes to his level of "moral culpability". I shall return to this point in due course because Counsel advanced another twelve points said to go more generally to the level of moral culpability. 2. Counsel also submitted that the applicant's "state of mind" needs to be taken into account when considering the allegation that Inspector Heyward and Senior Sergeant Sykes had been guilty of invention and collusion. The submission was developed in this way. It was a ridiculous proposition and one always doomed to fail because in his ERISP the applicant said he could not recall the conversation. He received some legal advice which he accepted and embarked upon this hopeless course of impugning the credit of his superior officers. A course which could not possibly succeed. That behaviour is only explicable by the applicant's confused state of mind. That again reduces the level of moral culpability. 3. When the Commission questioned how it was that the applicant's state of mind did not prevent him from acknowledging in his directed interview that he had no recollection of the conversation it was submitted that: 1. the condition comes and goes; 2. he was on notice of the interview; 3. it was not spur of the moment; 4. he had a support person with him; and 5. there were steps in place to manage his condition. 1. Those responses do not conform to the applicant's demeanour during the interview nor his descriptions of it and its effects on him given to Dr Lam-Po-Tang and summarised at [37]. 2. In mitigation the applicant also relied upon: 1. his 14 years as a police officer with only a few minor complaints on his record before this matter; 2. the misconduct occurring during a period when the applicant was diagnosed with an adjustment disorder which was not fully resolved and was capable of being triggered; 3. the psychiatric condition was operative (inferentially) at the time of the disclosures to his supervisors; 4. the storage of the uniform, and his name plates, at Mr Fuchs's residence was blatantly stupid and disrespectful to the uniform but was done when he believed Mr Fuchs was a trustworthy person; 5. point 4 can be reiterated in relation to the police handcuffs and the handcuff key which can be used on any police handcuffs and, in addition, at the time he put the handcuffs on Mr Fuchs he was intoxicated and his psychiatric condition had been triggered by reading two medical reports; 6. while it is accepted the medical evidence does not establish a causal link between his condition and the errors of judgment and it is not submitted that a person suffering from that condition cannot make proper decisions, his condition needs to be weighed in assessing the applicant's moral culpability: 7. the storage of his appointments was stupid, careless and neglectful and contrary to the appropriate level of security for such items; 8. the non-disclosure to his supervisors about the reasons why the uniform was stored at Mr Fuchs' residence was an irrational decision made in a moment of confusion and in a situation of a mix of emotion, anxiety and embarrassment but the applicant admitted the core fact that they were there; 9. the events of 16 September need to be seen in the light of the mix identified in (8) and his concern that his dyslexia was at play and would hinder his capacity to express himself as he wanted; 10. his position in his responses was illogical and doomed to fail and was a product of his acceptance of advice; 11. the applicant has now admitted all the primary facts and all the allegations save for the elements relating to deliberateness and the moral culpability "which drove him"; 12. the applicant openly inculpated himself about the documents which in the words of Newall C in Morris v Commissioner of Police were "not the actions of a man seeking to conceal the truth about his own culpability" 1. Counsel accepted the character evidence was not of much assistance to the applicant. The lack of any clear evidence that the witnesses were aware of the applicant's change of position in relation to the allegations militated against the weight of them and there was no such evidence from serving officers. The absence of such evidence ought not weigh against his character or capability as most of his senior officers in prosecutions were either giving evidence against him or had been the subject of his bullying and harassment complaint at the Coroner's Court. 2. Briefly stated, the submission of the applicant was that although he may have done the wrong thing his level of moral culpability is reduced by reason of the various points raised by counsel so that, what was undoubtedly serious misconduct, not of the worst kind but at the "higher end of the midrange of severity", was reduced to the lower end of the midrange. 3. Counsel then turned to the requirements of the legislation. He referred in particular to s 181F the terms of which are: 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. As to 181F(3) (a) the applicant submitted the impact on him was significant. He: 1. is 40 years old: 2. has been a police officer since he was 26; 3. has forgone his nursing career and would need to undertake further expensive study to return to it; 4. he does not want to return to nursing; 5. has been suspended since 1 August 2016 and there has been an unexplained delay between 22 September 2015 and 21 July 2017; 6. suffers from a work related psychiatric condition and has suffered significant stress brought on by the complaint and disciplinary process so that the emotional impact is significant; 7. he needs to provide for himself and does not have the capacity to obtain employment of a similar status, subject to successfully returning to his former occupation as a nurse. 1. As to the public interest Counsel submitted the respondent was entitled to take action against the applicant but the Commission could uphold that interest by an alternative remedy such as reinstatement with demotion or "other fitting punishment" 2. In terms of the principles to be applied he referred to the decision of Newall C in Morris v Commissioner of Police commencing at [107] where the Commissioner referred to a number of well-known authorities. It is convenient to quote from the Commissioner's decision. He said: 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) 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). 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) 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]) … 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]) 1. Counsel referred in particular to Toshack v Commissioner of Police and to the passages cited above at [99] and those cited at [114] in Commissioner Newall's decision. Relying on these passages he submitted that the Commission is required to assess the level of moral culpability of the applicant. 2. The applicant next referred to Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; 98 IR 57, in particular at [248] - [249]. In those paragraphs the Full Bench said: 248 That having been said, there may be some particular considerations which arise when hearing an application brought under s181E of the Act. As has been mentioned, s181F(3) requires the Commission, in making its decision, to have regard to the interests of the applicant and the public interest, including the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order under s181D(1). The need to have regard to these matters may arise in some instances when the Commission is called upon to determine if the removal of a police officer was harsh, unreasonable or unjust. However, it would seem to me that the public interest in maintaining the integrity of the police service will be particularly pertinent when the Commission comes to consider what relief should be granted. 249 The power of the Commission to order the reinstatement of an employee should always be exercised with caution (see Slonim v Fellows (1984) 154 CLR 505 at 515), particularly where the case involves a public position such as that of a police officer. The proposed reinstatement of a police officer whose integrity has been impugned is a matter of some gravity having regard to the position of trust and responsibility occupied by members of the police force in our society. However, the remedy of reinstatement is clearly provided by the Act. The capacity of an officer to seek the review by the Commission of his or her removal under s181E is itself evidence that the legislature did not intend either the making of an order removing the officer or the fact of allegations being raised against the officer to of itself preclude reinstatement. The incorporation of s89(5) of the IR Act in itself makes clear that reinstatement remains the primary remedy. 1. Counsel submitted the key issue in this case was as to the applicant's integrity but that fact did not prevent the Commission from exercising discretion to reinstate in an appropriate case. He then returned to the level of moral culpability in connection with the untruthfulness. He also pointed out that the respondent didn't have before him the medical evidence now before the Commission. Respondent 1. Counsel for the respondent focussed his submissions on Allegations 3 and 7. 2. In relation to Allegation 7 he submitted the allegation was made out by the applicant's admission he was less than fully frank but went on to consider the issue of deliberateness. The respondent submitted in light of the evidence, that I have earlier set out in detail at [134] – [145], it was clear the decision to mislead was deliberate. The only reason the applicant would not make that concession is because it would further undermine his case. 3. The applicant, Counsel submitted, made a deliberate choice to protect his own interests. 4. As to Allegation 3 the respondent again noted the concession that the applicant had been less than fully frank and submitted that was sufficient to sustain the allegation. Counsel submitted, nevertheless, a finding of deliberate untruthfulness should be made because: 1. the concession, inherent in the admission of Allegation 1, that the applicant had reviewed evidentiary material with a view to providing an opinion as to the sufficiency of evidence to sustain a criminal charge, a proposition which he had repeatedly denied was consistent with what his supervisors heard him make and then recant; 2. the decision to resile from the disclosure earlier made came after Heyward identified the conflict of interest and was consistent with being in defensive mode as admitted; and 3. a finding of untruthfulness in relation to Allegation 7 supported a similar finding in relation to Allegation 3. 1. Counsel then turned to the issue of the unfounded allegations against Inspector Heyward and Senior Sergeant Sykes. He rejected any suggestion that the allegations were made at a time when the applicant was thinking about criminal proceedings because: 1. the applicant has accepted full responsibility; and 2. despite a change in legal representation, the allegations were maintained until these proceedings. 1. The Commission should find the admission of the wrongful allegations against the supervisors itself justifies maintaining the removal because: 1. it is relevant to the assessment of whether the removal was harsh; 2. it is relevant to the assessment of the public interest required by s 181F (3)(b); and 3. it demonstrates that the applicant is prepared to say things in order to "save his job"; 4. it is relevant to the assessment of the applicant's credit. In support of that proposition Counsel referred to the decision in Commissioner of Police v Collins [2008] NSWIRComm 162; 180 IR 191 at [37]-[40] and [60]. 1. In relation to the applicant's credit the respondent pointed to: 1. his non-responsiveness about straightforward questions; 2. his dissembling in relation to other issues such as when he spoke to his character referees about his changed position; and 3. the fact that the applicant had several opportunities to make the concessions he made in the proceedings but did not do so. 1. The applicant's belated admissions should not be accepted as evidence of contrition or remorse. Rather they should be seen as an attempt at the last opportunity to "save his job". 2. Mr Darams submitted that the public interest would be served by the removal of the applicant as a police officer because of the impact on the perception of the integrity of the police force. The public would be entitled to question what a police officer would be prepared to do in relation to an ordinary member of the public if he was prepared to make unfounded serious allegations against his superior officers. 3. In response to the applicant's submissions at [188] about the applicant's state of mind during the directed interview the respondent drew attention to paragraph 85 of the applicant's first statement. In that paragraph he described his condition in the days leading up to the interview in similar terms to his emotional state on 16 September 2015. 4. Mr Darams submitted that, if it be accepted, contrary to the respondent's submission, that his dyslexia played a part in his conduct on 16 September 2015 there could be no confidence that it would not play a part in other circumstances. The applicant's evidence as to the separation of personal and professional circumstances was not to be accepted. The questions he was asked by his supervisors were relatively straightforward. Yet he gave untruthful answers. If dyslexia was the cause there is no evidence to suggest it would not be a cause again. 5. In relation to the applicant's expressed lack of trust in his supervisors the respondent noted there was no cross-examination of them about bullying or harassing behaviour and the applicant could identify, in his cross-examination only one occasion when Inspector Heyward was alleged to have made a statement which the applicant took to be bullying. 6. The respondent rejected the submission of unreasonable or inordinate delay noting that it had not been part of the applicant's case until closing submissions. As to the period between the S 181D response and the order removing him Mr Darams drew attention to the change of Commissioner in that period. Applicant in Reply 1. In relation to allegation 3 it was important to bear in mind the perspective from which the applicant approached the GIPA material, that is, to consider whether it supported a bullying and harassment claim. 2. The admission of the applicant as to wrongfully impugning the integrity of his supervisors should not be seen as an additional ground of misconduct. The circumstances needed to be weighed in assessing the seriousness, including the susceptibility of the applicant to criminal charges. He could have exercised his right to silence but disclosed as much as he could. 3. It would be unfair to impugn the applicant's credit on the basis that he was unable to identify when he had spoken to them, particularly as the witnesses who could attest to him having spoken to them were available for cross-examination but were not cross-examined. 4. Moreover the applicant had not endorsed, without qualification, his Lancaster response in his s 181D response. He maintained his denials but did not specifically refer to the offending paragraphs of his Lancaster response suggesting invention and collusion. 5. Counsel accepted, in relation to the public interest, that members of the public would be rightly affronted by an officer making false allegations against their supervisor. It would be wrong to see that in abstract ignoring the bigger picture portrayed by the applicant. The level of moral culpability must be considered. 6. In relation to self-preservation one must consider his mental and emotional state. Fear of ridicule, embarrassment, isolation and adverse work consequences all played a part in causing the applicant to act as he did and those matters should be taken into account. Consideration and Conclusions Summary of findings 1. In the course of discussing the evidence and submissions I have made a number of findings. Before turning to consider matters as required by s 181F of the Police Act it is convenient to summarise those findings. 1. The applicant was diagnosed with a Major Depressive Disorder in March 2015 by Dr Lam-Po-Tang; at [34]. 2. By contrast Dr Lam-Po-Tang's report of 10 March 2015 recorded a diagnosis "a partially resolved non-melancholic Major Depressive Disorder"; at [42]. 3. By 22 July 2015 Dr Roberts reported "it is evident that his psychiatric condition has improved significantly…In his current workplace, according to Mr Carlin's account, he is functioning satisfactorily"'; at [43]. 4. The medical evidence drew no causal connection between the condition and the conduct; at [159] and [168]. 5. I accept the evidence of Inspector Heyward and Senior Sergeant Sykes as to the conversations with them on 16 September 2015 both in content and their observations as to the applicant's demeanour; at [83] and [98]. 6. The applicant's reactions to the allegations made against him reflected on his understanding of his duty to place integrity above all; at [124], [141]. 7. The applicant misled his supervisors, by resiling from his earlier statement as to providing advice to Mr Fuchs, in order to protect himself; at [130]. 8. That conduct was deliberate; at [133], [131] and [167]. 9. The applicant was aware that conduct compromised his position as a police officer; at [132]. 10. The applicant deliberately misled his supervisors about the reason his uniform and handcuffs were at Mr Fuchs' residence; at [146]. 11. The applicant did not fully comprehend the obligation of integrity above all; at [146], [151]. 12. There was no evidence to support the contention that the applicant's will was overborn; at [164], [165] and [167]. 13. The applicant became worried, nervous, concerned and even anxious when he received the phone call from Mr Fuchs. He would also have been apprehensive about being embarrassed and ridiculed; at [165]. 14. The applicant's dyslexia did not have an impact on his decision to be selective in what he said to his supervisors; at [165]. 15. The applicant did not put his obligations as a police officer ahead of his desire to assist a friend, he did the reverse; at [179] and [184]. 16. The applicant did not "openly inculpate' himself by what he said to his supervisors; at [181]. The Commissioner's reasons 1. The Police Act requires that I first consider the reasons of the Commissioner for removal of the officer. 2. Those reasons are set out in the s 181D Notice. The Commissioner found each of the Allegations proven. In relation to Allegations 1 and 2 the Commissioner, noting admissions made by the applicant as to what he saw in the GIPA material and his qualifications and experience, considered the applicant should have recognised and declared a conflict of interest and a declarable association. In doing so he placed his own interests ahead of those of the Police Force. The Commissioner found that inconsistent with the applicant's duties as a police officer. 3. In relation to Allegation 3 the Commissioner preferred the evidence of Inspector Heyward and Senior Sergeant Sykes. 4. In relation to Allegation 7, the Commissioner did not accept the applicant's explanation and regarded his variously stated reasons for leaving his uniform at Mr Fuchs' residence as inconsistent. 5. As to Allegations 9 and 10 the Commissioner rejected the applicant's responses particularly in view of his length of service and experience as a prosecutor. 6. The Commissioner noted the applicant's admissions as to Allegations 4, 5, 6 and 8, but considered the applicant failed to appreciate the seriousness of his actions. Serious consequences, he said, may result from a police uniform and appointments falling into the hands of unauthorised and potentially dangerous persons. 7. The character evidence and details of the applicant's career history did not provide mitigation or reasons for the applicant's actions having regard to their seriousness. 8. The Commissioner concluded that the applicant had failed to act professionally at all times, with ethics and integrity, and in accordance with the law - that being the sworn duty of a police officer. 9. The applicant's case was that the removal was harsh for the reasons set out at [17]. Further, it was unjust and unreasonable for the reasons set out at [18]. The Applicant's case 1. The applicant's case was predicated on the admission of all the core facts alleged by the Commissioner save that he denied deliberate untruthfulness and "somewhat disputed" he was less than fully frank as to Allegation 3. 2. Having regard to the applicant's admissions and my findings as to his deliberate untruthfulness and being deliberately less than fully frank, it is clear the Commissioner's conclusions were well founded. They were not unreasonable or unjust, particularly for the reasons advanced by the applicant. 3. Far from giving rise to doubt about the Commissioner's findings in relation to Allegations 3 and 7, the applicant's evidence in these proceedings served to reinforce those findings. The final submissions advanced on behalf of the applicant focused not on the choices he made, but his level of moral culpability for those choices. Level of moral culpability 1. It follows from the findings at (4), (5), (7), (8), (10), (12), and (14) of [219] that I do not find in the applicant's favour on any of the four questions posed by Counsel for the applicant and listed at [157]. Moreover, I agree with the respondent that, even if I accepted any of the propositions advanced, there was nothing upon which the Commission could rely to suggest that such conduct would not recur. Notwithstanding the applicant's evidence that he had awareness and coping mechanisms now, there was no evidence to suggest that the circumstances had changed in that regard from those which existed in 2015. 2. The applicant accepts that findings that he had deliberately misled his supervisors were findings of serious misconduct. Having regard to my findings, particularly those in relation to deliberateness and preferring his own interests to his obligations as a police officer, he is guilty of serious and wilful misconduct. 3. I do not accept that the level of moral culpability for that conduct is in any way reduced by the applicant's medical history. There is nothing in the medical reports to support, even inferentially, that the applicant's condition had a disabling effect upon him. Bearing in mind that Dr Lam-Po-Tang's report was requested for these proceedings it should not be left to inference that there was some connection between the conduct and/or his moral culpability and his health. 4. The applicant made clear and deliberate choices to: deny his conduct; refute the statements of his supervisors, impugning their integrity in the process; and then, as the net tightened, make staged retreats by way of progressive admissions. Even when he admitted all the core facts of the allegations he clung to a possibility by denying his misleading statements were deliberate. I accept the submission of the respondent his reason for that denial was because he knew it was his last chance to save his job. 5. I do not find mitigation either in his accepting advice from criminal lawyers. He is an experienced police officer and more importantly an experienced police prosecutor. He is well aware of the seriousness of the allegations made against his supervisors. I do not accept that he has no rational explanation for his conduct. The explanation is self-protection. As I said in discussion with Counsel, there is nothing irrational about self-preservation. It becomes problematic, however, when choices are made at any cost. 6. The applicant made deliberate choices about the manner in which he would answer the issues raised concerning his conduct. He made choices to sustain or retreat from those positions as the investigation and Commission proceedings progressed. The choices failed to take proper account of his obligation of integrity above all. 7. As a result of the finding noted at [219(14)] I exclude dyslexia from being a mitigating factor reducing the level of moral culpability. I do not accept the finding at [219(13)] reduces moral culpability. Being concerned or anxious is not a disabling factor in deciding whether to take an ethical course or not. 8. The applicant urged that I take into account his age, length of service, absence of any prior serious disciplinary issues, desire to be a police officer, lack of desire and difficulty in returning to nursing and need to support himself as matters to be weighed in assessing harshness in particular. The Commissioners case in answer 1. In addition to the reliance upon the admitted allegations the Commissioner contended that the applicants conduct in Allegations 3 and 7 was deliberate. I have already indicated I accept those submissions. 2. I also accept the respondent's submission that the admission as to the wrongful allegations of invention and collusion made against Inspector Heyward and Senior Sergeant Sykes supported a finding of an additional ground of misconduct. It was clear the Commissioner expressed concern about the serious allegations made against those two officers and preferred their evidence to that of the applicant. The Commissioner did not have before him an admission that the allegations were unfounded. 3. There is no doubt the conduct is relevant to an assessment of the applicant's integrity. The wrongful allegations were made prior to dismissal. The admission they were wrongful came to light in the hearing of the applicant's case. As such it falls to be considered on all grounds in accordance with the decision of the Full Bench in Commissioner of Police v Collins. 4. I accept too that the applicant's "belated admissions" are not evidence of contrition or remorse. The denials were sustained far too long for the admissions to be convincing evidence of contrition. I readily accept that the applicant regrets the whole chain of events, but his failure to recognise the full scope of his failure to act with integrity – to call it naïve, a lack of professionalism or a lack of insight – shows that it is only regret, not remorse. 5. Any issue of delay, raised late in the proceedings as it was, I would not regard as having sufficient weight to impact meaningfully upon the outcome of these proceedings. 6. I have earlier referred to the Commissioner's submission in relation to the public interest. In my view it is a submission which should be accepted and accorded considerable weight in this case. Unjust or Unreasonable 1. I reject the applicant's contention that the decision to remove him was unjust or unreasonable for the reasons addressed in [230] and [233] and the findings which underpin those conclusions. Harsh 1. I do not accept that the removal order was disproportionate to the gravity of the conduct again for the reasons identified in [230] and [233]. The admitted unfounded and wrongful allegations made against the applicant's two supervisors adds to the gravity of the conduct and reinforces the appropriateness of the order. 2. Termination of employment has obvious personal and economic impacts on a person. The applicant is in no different position in that regard. He is not left without options in that regard. There is the possibility of returning to nursing though I note the applicant said that was not something he wanted to do. He is also a law student and there are possibilities in that field as well. I do not regard these factors as having such weight as to support a finding in favour of the applicant on this issue. 3. I have given serious consideration to the applicant's personal history and the mental health issues evidenced in the various medical reports tendered. The applicant submits the removal order is disproportionate in light of that evidence. Notwithstanding the degree of sympathy one may have for any person experiencing such a childhood, my findings as to the lack of connection between those factors and the applicant's conduct militate against accepting that submission. Indeed the success of the applicant in resisting those factors having a disabling effect on him, as remarked by Associate Professor Robertson at [41], militate against a finding that the order is disproportionate. 4. I therefore reject the applicant's submission that the removal order is harsh. Order 1. The application is dismissed ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2018