Industrial Relations Commission New South Wales Medium Neutral Citation: Youssef Ibrahim v Commissioner of Police [2019] NSWIRComm 1009 Hearing dates: 16 October 2018 Date of orders: 04 February 2019 Decision date: 04 February 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Application dismissed Catchwords: POLICE - Removal of Police Officer – s 181D Police Act – onus on applicant to demonstrate decision harsh, unreasonable or unjust – Commissioner of Police entitled to expect that officers will not consume prohibited drugs - onus not carried Legislation Cited: Industrial Relations Act 1996 (NSW), ss 84, 89, 146, 163 Police Act 1990 (NSW), ss 181D, 181E, 181F Uniform Civil Procedure Rules 2005 (NSW), Rule 7.3 Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 15 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 Hamod v State of New South Wales & Anor [2011] NSWCA 375 Hosemans v Commissioner of Police (2004) 138 IR 159 Lawrance v Commissioner of Police [2010] NSWIRComm 14 Starr v Commissioner of Police [2001] NSWIRComm 226 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Walsh v Commissioner of Police [2011] NSWIRComm 26 Category: Principal judgment Parties: Youssef Ibrahim (applicant) Commissioner of Police (respondent) Representation: Counsel: Mr Michael Seck (respondent) Solicitors: K&L Gates (respondent) The applicant represented himself File Number(s): 2018/00127753 DECISION 1. By order dated 6 April 2018 made pursuant to section 181D(1) of the Police Act 1990 (NSW) ("the Police Act"), the respondent, the Commissioner of Police, removed the applicant, Youssef Ibrahim, from the New South Wales Police Force ("the Police Force") due to the respondent's loss of confidence in the applicant's suitability to continue as a police officer ("the Removal Order"). 2. The Statement of Reasons accompanying the Removal Order ("the Statement of Reasons") sets out the reasons for the respondent's loss of confidence. The reasons include that the applicant: knowingly consumed prohibited drugs including methylamphetamine, amphetamines, cocaine and methylenedioxymethylamphetamine ("MDMA"); was untruthful about his drug use and in his responses to other questions as part of the investigation; and sought out and directly or indirectly dealt with criminal drug dealers. 3. On 23 April 2018, the applicant filed in the Office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal. That application has been treated as an application for review of the Removal Order pursuant to section 181E of the Police Act ("the Application"). Powers of the Commission on review 1. Section 181D of the Police Act gives the respondent the power to remove an officer where the respondent no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. 2. A person who is the subject of a decision to remove him or her from the Police Force may apply for a review of that decision pursuant to s 181E of the Police Act. Section 181E relevantly provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission… for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 1. The manner in which the Commission must conduct the review is set out at s.181F of the Police Act: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (a) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (i) the interests of the applicant, and (ii) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1). 1. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 ("Hosemans") at [134]. 2. Section 181F requires the Commission firstly to consider the respondent's reasons for the decision to remove the applicant from the Police Force, which are those set out in the Statement of Reasons. 3. It is then for the applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable or unjust: the Police Act, s.181F(2). 4. If the applicant does not advance a case that has capacity to establish that the Removal Order was harsh, unreasonable or unjust, the Application cannot succeed. The applicant will not have carried his onus. 5. As the Full Bench held in Hosemans (at [131]) (cited with approval in Tredinnick (No 2) (at [78])): … the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2). But the important point here is the primary onus that falls on the applicant. 1. Although the primary onus falls on the applicant, if the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the respondent: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78]. 2. The purpose of the respondent's case is, as the Police Act expressly provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. 3. It was held in Hosemans that proceedings for review pursuant to s 181E of the Police Act are "essentially the same as the unfair dismissal regime" of the Industrial Relations Act 1996 ("the IR Act') "subject to specified modifications" (at [97], [104]). It follows that the meaning of the words "harsh, unreasonable or unjust" in review proceedings under the Police Act have the same meaning as that given to them in proceedings under Part 6 of the IR Act: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 ("Tredinnick (No. 1)") at [20]. 4. As set out in Tredinnick (No. 1) at [21] – [29], notwithstanding the above, the test as to whether a removal pursuant to s 181D of the Police Act was harsh, unreasonable or unjust is not identical to that test in the IR Act. In proceedings under s 181E of the Police Act, the Commission must take into account matters set out in s 181F(3)(b) of the Police Act which the Commission, in an application brought under s 84 of the IR Act, does not have to consider. Amongst other things, in determining an application pursuant to s 181E of the Police Act, the Commission must have regard to a "public interest' which, because it is partly defined at s 181F(2)(ii), is not the same as the "public interest" referred to in s 146(2) of the IR Act: Commissioner of Police v Eaton [2013] HCA 2 per Heydon J (at [27]). 5. Finally, as was held in Starr v Commissioner of Police [2001] NSWIRComm 226, "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case" (at [140]). Conduct of proceedings 1. The matter was conciliated before Commissioner Stanton on 7 June 2018. Directions were made on that date for the filing and service of evidence, and the hearing was set down for 16 and 17 October 2018. 2. The applicant, having been represented by solicitors at the conciliation and until 29 June 2018, represented himself in the hearing. I regarded myself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 ("Hamod") including that set out at [309]: Courts have an overriding duty to ensure that a trial is fair… In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. 1. At commencement of the hearing, immediately after entering his appearance, the applicant stated: I'm not here because of the removal, it was something different we spoke about this matter was adjourned - I wasn't objecting against the removal of my job. 1. It appeared that the applicant retained hope for a conciliated settlement of the matter and sought to agitate further settlement offers and/or that the applicant was not seeking to contest his removal pursuant to s 181D(1) of the Police Act. However, the applicant also stated: … The last time we were here was adjourned because of a few points we argued over and we couldn't agree on and that's why went to a hearing. And I've sent counsel the reasons by email why it was contested so. 1. Later in the hearing, while seeking to rely on evidence additional to what was filed in accordance with the Commission's directions, the applicant also made submissions and gave evidence from the bar table about his understanding that the hearing dates had been vacated and, that based on that understanding, he had not taken certain steps for the hearing, including obtaining information from the respondent and reports from his treating doctors and other health professionals. The applicant made the following submission to the Commission: … I got e-mail that the hearing was - they said they were trying to vacate it, the 16/17 hearing to be vacated, then apparently there was another e-mail sent that was confirmed that today was not adjourned and because I was going through so much and psychologists, psychiatrists, doctors and family issues, and I just didn't see the - I didn't receive the e-mail. I didn't see it. I might've received it but I didn't see it and that's why I didn't get enough time to, plus I didn't get to get my records from the police to indicate because they - my character to show what type of person I am, not the type of person that they indicated in their statement of reason for removing me. 1. Conscious of my obligations to the applicant as a self-represented litigant, I considered, amongst other things, the applicant's statements and submissions to the Commission about his expectation of reaching a negotiated settlement at the hearing and the impact on the applicant's preparation of evidence of the notification to the parties of the possibility that the hearing dates would be vacated. 2. Based on the applicant's statements about the reason the parties "went to a hearing" and his evident understanding that evidence was required to be prepared, and the fact that the applicant was represented by solicitors until a date after the unsuccessful conciliation, I am satisfied that the applicant was aware that the matter was set down for a contested hearing and not for further conciliation. I am also satisfied that the applicant had "sufficient information about the practice and procedure" of the Commission to understand the difference between the conciliation process and the arbitrated hearing before me: Hamod at [311]. 3. I have considered the applicant's submission to the Commission that he had understood that the hearing dates had been vacated, and that based on that understanding, he had not taken certain steps for the hearing, including obtaining medical reports from medical practitioners. 4. In accordance with the power of the Commission pursuant to s 163(1)(b) of the IR Act to inform itself in any manner it considers to be just, I reviewed the Commission's file. 5. From my review of the Commission's file I have determined the following: 1. on 18 September 2018 the Registrar of the Commission sent an email to the applicant and to the respondent's legal representative at the addresses on the Commission's file. This email stated that the Commission "may need to vacate the listing for the … matter on 16-17 October 2018." The email asked for the parties' "availability for relisting of the hearing in October and November" to be provided to the Registrar by 24 September 2018; 2. the respondent replied to the Registrar's email on 19 September 2018, copying the applicant; 3. later on 19 September 2018, the applicant replied to the respondent's email, copying the Registrar; and 4. on 21 September 2018, the Registrar replied to the applicant's email of 19 September 2018, copying the respondent's legal representative, to inform the parties that the original dates for the hearing were confirmed. 1. The email from the Registrar notifying the parties that the hearing dates may be vacated was sent on 18 September 2018, a date well after 19 July 2018, when the applicant's evidence in chief was to be filed, and after the date on which the applicant's evidence in reply to the respondent's evidence was due to be filed and served which was 13 September 2018. 2. While I accept that the applicant may not have read the email that confirmed the hearing dates, I am also conscious of what was reiterated by the Court of Appeal in Hamond at [313]: The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated: "But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant." 1. Even if I were to accept that the applicant did not receive the email from the Commission sent on 21 September 2018 confirming the hearing dates, which I do not accept as the email was sent in a chain of emails some of which the applicant accepts he received, the applicant was not informed in the email of 18 September 2018 that the hearing dates were vacated, only that they may be vacated. 2. Nevertheless, in striking a balance between providing assistance to the unrepresented litigant and ensuring a fair trial for all parties, I admitted all of the material the applicant sought to tender, including six exhibits which were admitted at the conclusion of the hearing, after the respondent's counsel had made final submissions. Included in these exhibits was material relating to the applicant's medical condition and medical history. 3. I accepted all of the applicant's material so that the applicant had every opportunity to put in full the case he had prepared for hearing, and to assist me to understand the case the applicant was putting. 4. The applicant referred to a summons he sought to have issued for the purpose of obtaining access to his personnel file. No summons was issued at the applicant's request and no leave was sought by, or granted to, the applicant pursuant to Rule 7.3 of the Uniform Civil Procedure Rules 2005. 5. The applicant contended that access to his personnel file, if a summons had been issued, would have assisted his case. The applicant put to me that his personnel file would have assisted his case by showing his good character. As the applicant's primary case relies on a finding that the Removal Notice is harsh, I have concluded that the applicant intended to rely on his service record as an element which would assist to establish the harshness of the decision to remove him from the Police Force. 6. In circumstances where: the respondent has complied with his obligations pursuant to s 181E(3) to make available to the applicant all of the documents and other material on which the respondent has relied in making the Removal Order including the Commander's Warning Notice issued on 22 July 2014; the applicant was legally represented until 29 June 2018; the applicant required leave to issue a subpoena following his solicitors ceasing to act, and I admitted all material the applicant sought to tender throughout the hearing, I do not consider that the circumstances that resulted in the applicant not having access to his personnel file were inconsistent with the Commission's obligations to ensure a fair trial for all parties: Hamod at [310]. 7. The respondent called on a summons issued to the applicant and documents were produced informally by the applicant. It became clear throughout the hearing that not all documents captured by the summons issued to the applicant were produced to the respondent. Despite this, material which was captured by the summons and not produced to the respondent was admitted as evidence in support of the applicant's case with the respondent's concurrence, subject to submissions regarding weight and relevance. 8. The applicant made it clear throughout the hearing, including in his opening statement, in which he referred to his "one mistake", that he was not seeking reinstatement. The applicant identified the three things he was seeking from the Application: 1. recognition of the 10 years of good service in the form of a statement of service; 2. deletion of words asserting that the applicant associated with drug dealers from the Removal Order; and 3. six months' remuneration as compensation. 1. The respondent's counsel submitted that the Commission did not have power to order the first two matters sought by the applicant. 2. The orders available to the Commission are provided under s 89 of the IR Act, as modified by the Police Act: reinstatement (s 89(1) of the IR Act); re-employment (s 89(2) of the IR Act); remuneration the applicant would have received but for the dismissal (s 89(3) of the IR Act); continuity of service (s 89(4) of the IR Act); and compensation not exceeding the amount of remuneration of the applicant during the period of six months immediately before being dismissed (s 89(5) of the IR Act). 3. Pursuant to s 89(8) of the IR Act, the Commission can impose "terms and conditions" on "an order under this section". However, the conditions able to be imposed pursuant to this power must be attached to something capable of constituting an "order" within s 89(1)-(5) of the IR Act. Section 89(8) is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable: Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 at [23]. 4. I do not consider it is likely that it is within the power of this Commission to order that the Removal Order made by the respondent pursuant to section 181D(1) of the Police Act be varied or amended. However, the questions of: what conditions can be imposed pursuant to s 89(8); and whether the first two matters sought by the applicant can be ordered by the Commission, will only arise to be determined in this matter if the Commission determines that the removal of the applicant from the Police Force is harsh, unreasonable or unjust. 5. While it was clear throughout the hearing that the applicant denied any association with drug dealers, the applicant's position as to whether he admitted, or did not contest, that he had ingested prohibited drugs was not clear. For example, at the commencement of his case, I engaged in the following exchange with the applicant: Commissioner: … is there anything more you want to tell me about why you should be entitled to the three things that you want today? Applicant: … they have test they have randomly done and I've never once, you know, shown that. And I attempted to get the management police to look into it. They said, "We don't investigate that stuff, how it got into your system. We just know it's in your system. That's it." Commissioner: Thank you. Applicant: They don't investigate that. So, you know, I can't see all those years that I've worked so hard why that cannot be recognised and I've gone through a lot, the hardship, you know. I know my son has been dead for a while, for a few years now since suicide, but my parents also has passed away. My mental health psychological all came together crashing, my bankruptcy, my divorce from previous wife, and that's one aspect that made so things so confusing. And where I was living, I was living at back of a granny unit and now the aunty of those people who owned the house at the front have told me what the - because they had access to my place. They told me how the stuff was doing because I was on four different type of vitamins I was taking and what he did over the period of time, which is probably no relevant now, he was putting - he was using illegal drugs to mix, put in my - in the - but that's only residue, you see. That's not relevant to the case here. That's not why I'm contesting that, you know. But the police wouldn't investigate how this stuff came into our system, you know. I'm not here for that. I'm here mainly for what I'm saying my certificate of service and basically the hardship that I've gone through and all the hard work that I've done for the past seventeen years and that's what I'm asking for. Commissioner: Okay, so you're saying that your removal was harsh? Applicant: Well, basically they didn't investigate, yeah. They said, "It's in your system, that's it. You're guilty," yeah, basically, yeah. Commissioner: All right, and that's what you want to tell me today. Is there anything else you want to tell me? Applicant: But that's not in relation to my reinstatement. Is that because I don't want to be - not in relation to— Commissioner: I understand that you're not seeking reinstatement. Applicant: Yeah. And for my certificate of service, just - I just wanted all the hard work that I did to be recognised and the appreciation certificate and the recommendations that I got, in the back of the book, the brief. I mean, there is plenty of appreciation letters, commendations. I received one of the highest awards they - women against violence in the State. You know, I taught police, I taught at the academy, ethics for six months. I also taught student management at the academy. I tried to indicate to police I'm not the type of person, that I am - even the commander himself, you know, he used to spend hours with me in my office and talk and I just don't understand. And three and a half years he knew me and no one would believe me, you know? I don't - my son died from overdose, you know, over suicide. So I just want my work to be recognised for the time I was working, you know, that I was with the police. Basically, I removed those offensive words, you know? Thank you. 1. A further example of how the applicant's position as to whether he challenged the respondent's finding that he had consumed prohibited drugs was difficult to establish, is the following exchange during cross-examination: Q. Okay. So, as a serving police officer, Mr Ibrahim, you obviously understand the gravity of any allegation made against you as a police officer that you have consumed prohibited drugs? A. I have not consumed prohibited drugs. Q. I'm not saying that you have, but you understand that it's a serious allegation to-- A. It's a serious allegation, yeah. Q. And the reason why it's a serious allegation is because there is an-- A. Why do you keep going back on the drug issue? I'm not challenging the drug issue. 1. It was more evident to the Commission that the applicant was pressing that the termination of his employment was harsh and that he did not seek reinstatement. 2. As noted above, I admitted all of the material the applicant sought to tender as evidence, including six exhibits which were admitted at the conclusion of the hearing, after the respondent's counsel had made final submissions. The applicant's material includes a statement by the applicant made on 18 July 2018 (Exhibit A1); evidence as to the applicant's attendance at a medical appointment; evidence of the applicant's capacity to work; evidence regarding injury management and compensation payments; and evidence of pharmaceuticals prescribed and dispensed to the applicant in 2018. 3. Exhibit A1 contains a statement, at para [1] "that the contents of this statement may be used in support of any claims arising from injuries I sustained during the course of my employment with the NSW Police Force". The respondent's counsel noted a number of concerns about the content and form of Exhibit A1 in circumstances where the statement was prepared for proceedings in a different jurisdiction. 4. When asked by me about the relevance of material in his statement, Mr Ibrahim stated: … basically my statement is true is for workers compensation but - and I told them the filing of my statement and my recommendation - my commendations, my appreciation certificate, all that is not for to contest my removal. That is filed basically just to - the certificate of service to amend the words, those - and the six month wages. That's all I asked for. I wasn't contesting the drugs and I told them I wasn't contesting that from the beginning. 1. Counsel for the respondent's submissions about the content and relevance of Exhibit A1 included that much of the material had not been included in the applicant's response to the notice issued to him pursuant to s 181D dated 10 July 2017 ("the Show Cause Notice") and that the material could not be used to explain or mitigate the applicant's use of prohibited drugs in circumstances where the applicant denied voluntarily ingesting the drugs. Ultimately, however the respondent was content for the Commission to admit Exhibit A1 into evidence, subject to submissions as to relevance and weight. 2. I accepted Exhibit A1 in its original form despite the respondent's submissions for the same reason that I admitted the material tendered by the applicant after the respondent's counsel had made final submissions. Noting that the applicant's case is not restricted to what was put to the respondent in response to the Show Cause Notice, I wished to be certain that the applicant had every opportunity to put his case in full, and to be certain that I had understood his case in full. I am satisfied that these objects were met. 3. Annexed to Exhibit A1 were copies of, amongst other things: a letter of appreciation from a member of the public in relation to an incident in 2014; the applicant's award for service provision at the 2007 NSW Violence Against Women Prevention Awards; a certificate of appreciation to the applicant from the Inner West Domestic Violence Liaison Committee dated 6 December 2007; the applicant's award for outstanding contribution to the safety of women and children in Canterbury dated 5 November 2004; certificates of appreciation to the applicant from the Lebanese Moslems Association and the Riverwood Community Centre; a certificate of appreciation to the applicant for outstanding service from the Canterbury Bankstown Interagency Domestic Violence Response Team dated 7 December 2005; a certificate of appreciation to the applicant for outstanding support from the Inner West and Bankstown Women's Domestic Violence Court Assistance Schemes dated 1 December 2004; a certificate of achievement from the Community Relations Commission for passing the Community Language Allowance Scheme examination in the Arabic language; a letter from A P Scipione APM, Commissioner of Police, to a member of the public in response to her letter dated 27 August 2008 expressing appreciation for the efforts of officers including the applicant; character reference letters from Alaeddin Nasrallah dated 18 June 2017, T Voros dated 3 July 2017, Nadia Saleh dated 30 June 2017, Damian Trad dated 23 June 2017, Gerard Alison dated 19 June 2017, and Khalid A Qidwai dated 30 June 2017. 4. The respondent tendered: the documents relied on by him in deciding that he no longer had confidence in the applicant ("the Commissioner's Confidence Documents"); an affidavit by Tracy Anne George sworn 29 August 2018; an affidavit by Rema Ann Abadir sworn 30 August 2018; an affidavit of Dr Michael Robertson sworn on 30 August 2018; the Show Cause Notice; the applicant's response to the Show Cause Notice; the Removal Order; and correspondence between the NSW Police and Walter Madden Jenkins, the applicant's then legal representatives, regarding the medication the applicant alleged he was taking prior to the drugs tests. 5. The respondent's witnesses were not required for cross-examination and the respondent's material was admitted without objection. Respondent's Statement of Reasons 1. The first matter that the Commission is required to consider in this case is the respondent's reasons for the decision to remove the applicant from the Police Force (s 181EF)(1)(a)). These are set out in the Statement of Reasons. 2. In the respondent's Statement of Reasons he states at p 8: I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that you consumed prohibited drugs, resulting in you testing positive for:  Amphetamine and methamphetamine after providing a urine sample on 14 July 2016; and  Methylamphetamine, amphetamine, cocaine and MDMA after providing a urine sample and a hair sample on 19 July 2016. 1. The Statement of Reasons continues at pp 11-12: You have a clear obligation to ensure you comply with all policies and procedures, and I am satisfied that you have failed in this regard, I am satisfied you have also failed to comply with the laws you have sworn to uphold and failed to uphold your Oath of office. In light of the expert evidence obtained, I am satisfied that you have knowingly consumed prohibited drugs. The opinion of Dr Robertson supports a view that you have engaged in heavy and/or consistent prohibited drug use. … he specifically states that "the amount of methylamphetamine in the hair … is consistent with regular or chronic use during the timeframe represented by the hair sample". He also rules out the use of the declared medications (including Duromine), workplace exposure and/or the regular spiking of your food or drink as possible causes of the methylamphetamine detected. Accordingly I am satisfied that you have wilfully used prohibited drugs. I also note that it necessarily flows that you were untruthful about your drug use when you provided your Response, calling into question your integrity. … I have also reached a view regarding your alleged use of amphetamines, cocaine and MDMA. I note that Dr Robertson's opinion does not go so far as to state that the levels detected your wilful and/or regular use of amphetamines. Cocaine and/or MDMA. He advises that the amphetamines detected may be aby-product of methylamphetamine, although he does not rule out its wilful use. Although I have had regard to Dr Robertson's opinion that environmental exposure cannot be ruled out as a cause of the cocaine and MDMA levels detected in your system, I also take into account your integrity issues already identified, and the evidence provided by Detective Superintendent McLean regarding the accuracy of your assertions regarding your exposure to illicit substances in the workplace. I have reached a view that the detection of amphetamines, cocaine and MDMA in your system are also the result of wilful ingestion. You have engaged in criminal behaviour. Despite taking an oath that you would endeavour to detect and prevent crime. In order to have engaged in the chronic drug use indicated by the drug test results, you undoubtedly would have had to seek out and directly or indirectly deal with criminal drug dealers. If those drug dealers are aware that you are a police officer, your conduct has potentially caused serious reputational damage to the NSW Police Force… Your conduct has not only called into question your judgment and integrity, but places me in a position where I am unable to retain you as an officer, as the continuation of your duties could require you to deal with or apprehend a criminal with whom you yourself have engaged in criminal activity. The continuation of your employment is untenable in the circumstances. I note that further integrity issues arise from your Response. I am of the view that you have made untruthful representations regarding your Duramine consumption and conversations you had with Ms George and Ms Abadir. … … Although the established conduct would warrant your removal in the absence of any significant disciplinary history, I have taken your disciplinary history into account. You have previously been served with a Commander's Warning Notice, which placed you squarely on notice that future conduct could result in dismissal from the organisation. 1. For the purposes of s 181D(1), the grounds for the respondent's decision are "conduct" and "integrity". 2. I have considered the respondent's reasons. On its face, the Statement of Reasons complies with the requirements of s 181D(4) of the Police Act, in that the reasons provide a basis for the removal action taken by the respondent: Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]. The applicant's case 1. The second matter for consideration is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust. 2. As set out above, the determination of the question posed by the Police Act of whether the decision to remove was harsh, unreasonable or unjust depends on the case an applicant brings to the Commission: s.181F(1)(b) of the Police Act. 3. The determination of the Application turns on the evidence and argument put before the Commission. The applicant has an onus to show why the respondent's decision to remove him in reliance on the matters contained in the Statement of Reasons, was harsh, unreasonable or unjust. The applicant's case is not restricted to the case he advanced to the respondent although this may be taken into consideration in assessing, for example, the consistency of an applicant's assertions: Tredinnick (No. 1) at [34]. 4. The applicant's primary case appeared to be that the respondent's decision to remove him due to what the applicant described as "one mistake" was harsh, unreasonable or unjust to the applicant. However, as referred to above, despite referring to "one mistake" the applicant did not admit to ingesting prohibited drugs voluntarily and the following exchange took place between counsel for the respondent and the applicant in cross examination: Q. Now, I understand from what you've said this morning, Mr Ibrahim, that you're not challenging the outcome of the positive drugs test which has been administered to you and you're not contesting the content of the evidence which has been provided by the Commissioner of Police in these proceedings? A. No. Q. So you accept that what has been put in the Commissioner of Police's evidence is true? A. I accept without admission. Q. When you say you accept without admission you mean-- A. So I'm not admitting that I took the stuff. I don't admit to taking the stuff, no. Q. No, I'm not asking you to admit that you took prohibited drugs but you accept the evidence which has been presented by the Commissioner of Police in these proceedings, because you're not seeking to challenge-- A. No, not only, yeah, I admit, but not ..(not transcribable).. yep. Q. Now you have read Dr Robertson's report? A. Not really, 'cause it's full of crap. Q. Well, you say it's - to use your expression - full of crap. You could only reach that view if you had read the report? A. I read some of it but it doesn't - it's not true, all of it's not true. Q. When you say it's not true, you're not a - you're not trained or you don't have qualifications-- A. No, I don't have qualifications. Q. --as a pharmacologist? A. That's true, yeah. Q. Or a toxicologist, that's right? A. No, he's not a psychologist, Dr Robertson. He's a drug-- Q. No, I didn't say he was a psychologist? A. He's a drug specialist. 1. When asked by the respondent's counsel about the drug tests results the following exchange took place: Q. Okay. And you accept that he not only deals with whether or not the lab results demonstrate that the outcome of the hair and urine tests which were taken in June [sic] [July] 2016 is consistent with you ingesting positive drug, but he also deals with the alternative hypotheses which you put forward-- A. Yeah. Q. --to explain why there might be drugs-- A. If I - sorry, if I had, if I had a legal proper legal representation and I've had them, if I had the money, I would've brought experts and I would've gone through the whole thing, but I don't have the money and I didn't have the legal - proper legal representation. Whatever you say about Dr Robertson's report, I'm just going to say "Yes". 1. The drug tests results referred to by the respondent in the Statement of Reasons and in the cross examination of the applicant set out above, are referred to in the Affidavit of Dr Michael Robertson sworn on 30 August 2018 (Exhibit R4). 2. Dr Robertson is a pharmacologist and forensic toxicologist at Independent Forensic Consulting with more than 20 years' professional experience studying the affects and effects of drugs and poisons on humans and animals. Annexed to Exhibit R4 are: the results of a test undertaken by Douglas Hanly Moir Laboratories in respect of the urine sample taken from the applicant on 14 July 2016; the results of a test undertaken by Douglas Hanly Moir Laboratories in respect of the urine sample taken from the applicant on 19 July 2016; the results of a test undertaken by Douglas Hanly Moir Laboratories in respect of the hair sample taken from the applicant on 19 July 2016; and a report prepared by Dr Robertson dated 20 December 2017 in relation to the results of the drug tests and which was relied on by the respondent in the Statement of Reasons. 3. The applicant did not challenge the fact that there were three drug tests which returned positive results for prohibited drugs. Nor did the applicant challenge Dr Robertson's interpretation of the positive results of the tests including that: 1. "the amounts of methylamphetamine, amphetamine and codeine present in the hair follicle of Senior Constable Ibrahim are consistent with the regular use of methylamphetamine and codeine"; and/or 2. "the concentration of methylamphetamine found in the hair of Senior Constable Ibrahim [at 11,000 picograms/milligram when the Society of Hair Testing have published cut-off levels the chronic use of the drug at 200pg/mg] would be regarded as high and is consistent with the regular and chronic use of methylamphetamine during the period of time represented by the hair sample ie mid March to mid July 2016". 1. Nor did the applicant challenge Dr Robertson's refutation of the alternative hypotheses for the results of the drug tests results put forward by the applicant in his response dated 10 July 2017 to the Show Cause Notice. These alternative hypotheses included: the taking of the medications declared by the applicant, including the drug Duromine; environmental contamination; a single case of unintentional use; unintentional exposure; blood transfusion or a single or regular exposure to spiking. The applicant said he does not challenge the drug tests results or Dr Robertson's analyses set out in, and annexed to, Exhibit R4, because he does not have the financial means to do so and not because the applicant admits to ingesting the prohibited drugs voluntarily. 2. The applicant did not challenge the evidence of Ms Rema Abadir or Ms Tracey George who administered the drug tests. I note specifically that the applicant did not challenge these witnesses as to what they said occurred at the drug tests on 14 July 2016 and 19 July 2016, including their evidence about the medications declared by the applicant and the circumstances that he obtained these declared medications at the time of the 14 July 2016 test. 3. The determination of the Application turns on the evidence and argument put before the Commission. The applicant may attack the Removal Order and the respondent's decision on any basis or combination of bases available to him, including by advancing in his case that the drug tests results were suspect due to any of the alternative hypotheses he put forward in his response to the Show Cause Notice or any other bases. If the applicant advances such a case on any evidentiary basis, then the respondent has the burden of meeting that evidentiary case. 4. Despite raising alternative hypotheses in his response to the Show Cause Notice, in the case he conducted before the Commission the applicant did not advance any evidence to suggest the drug tests results were suspect. Accordingly, the respondent was not, in response to the applicant's case, obliged to prove the drug tests results at all: Tredinnick (No. 2) at [80]-[90]. 5. Although the applicant did not place any evidence before the Commission to suggest the drug tests results were suspect, the applicant denied, in the face of the test result, that he had deliberately or voluntarily ingested prohibited drugs. 6. The only evidence that the applicant produced to the Commission to support this denial was contained in the character reference letters. I do not consider that the character reference letters cast sufficient doubt on the finding by the respondents, based on the urine and hair tests and the analyses by Dr Robertson, that the applicant had deliberately ingested prohibited drugs. Accordingly, the respondent was not, in response to the applicant's case, obliged to prove this matter. 7. The applicant denied that he associated with drug dealers, and took great issue with the respondent's inference from the drug tests results that the applicant had engaged in criminal activity. The applicant refers to the Commissioner's finding that he had "engaged in criminal behaviour" and that he "undoubtedly would have had to seek out and directly or indirectly deal with criminal drug dealers" "without any evidence" in Exhibit A1. However, there is nothing in the applicant's evidence to the Commission that proposes an alternative hypothesis for how the prohibited drugs were obtained. Further, in his report relied upon by the respondent in the Statement of Reasons, Dr Robertson had ruled out the use of declared mediations, workplace exposure and/or the regular spiking of the applicant's food or drink as possible causes of the levels of methylamphetamine detected. Accordingly, the respondent was not, in response to the applicant's case, obliged to prove this matter. The respondent's case 1. The third matter required by the Police Act to be considered is the case presented by the respondent in answer to the applicant's case. 2. In adopting the approach of the Full Bench in Tredinnick (No. 2), I am satisfied that the applicant has not produced sufficient evidence to cast doubt upon the findings by the respondent that the applicant deliberately consumed prohibited drugs and associated with drug dealers to obtain those drugs. Accordingly, I am not satisfied that the evidentiary burden of establishing that fact has shifted to the respondent. 3. The evidence which has been tendered and relied upon by the respondent is unchallenged. The applicant does not challenge the fact that there was a positive drug test, nor does he challenge the interpretation of the positive test results which have been undertaken by Dr Robertson, and he does not challenge the evidence of Ms Rema Abadir or Ms Tracey George as to what they said occurred at the drug tests on 14 July 2016 and 19 July 2016. 4. That means there is no reversal of the evidentiary burden onto the respondent and it is a matter for the applicant to demonstrate that the conduct was not sufficiently serious to warrant removal or the removal was otherwise harsh, based on his personal circumstances and/or the impact it may have upon him as an individual relative to the seriousness of the misconduct which has been found to have occurred in the statement of reasons. Matters required to be considered by s 181F(3) 1. The Police Act sets out at s.181F(3) matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and must further have regard to the public interest. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. The interests of the applicant 1. It is clear that the effect of the Removal Order on the applicant is great. It is so in the case of any sworn police officer removed from the Police Force, of course, but the effects will be different in fact and degree in each case. 2. Exhibit A1 contains the applicant's evidence that he has been told by his doctors and other medical practitioners that he has the following injuries: Post-traumatic Stress Disorder ("PTSD"); Major Depressive Disorder ("MDD"); and Anxiety Disorder; and that, as at the date the statement was made, being 18 July 2018, he had an appointment with a psychiatrist and a psychologist to confirm the diagnoses. The applicant also outlines the symptoms he experiences which include daytime fatigue, anxiety and lack of concentration. The applicant states that he has been exposed to traumatic incidents which he describes and that they replay in his head causing sleepless nights. 3. The applicant's medical evidence in support of these diagnoses is limited. I recognise that the applicant submitted that had he had more time to prepare his case he would have obtained more evidence. 4. The applicant states that he has lost friendships, experiences irritability and has difficulty with personal hygiene and grooming as a result of his injury, not as a result of the Removal Notice. I accept this evidence. 5. The applicant states in Exhibit A1 that he was subjected to bullying and harassment prior to his being issued with the Removal Order. 6. As counsel for the respondent said in his submissions about the admissibility of Exhibit A1, the allegations of bullying and harassment may be relevant in this matter if the applicant had admitted to taking the prohibited drugs, and the alleged bullying and harassment was put as a reason by the applicant for the use of prohibited drugs. However, the applicant, while not advancing evidence to cast sufficient doubt on the proposition that he has deliberately ingested prohibited drugs, made no admission of ingesting the prohibited drugs. On that basis, I do not consider that the evidence from the applicant about alleged bullying and harassment, advances the applicant's case. 7. The applicant sets out what his aspirations were for his career in the Police Force and his disappointment with his treatment in the Police Force. I accept that the applicant intended to "move up the ranks within the Police Force" and that the applicant was proud of himself as "a hardworking and competent Police Officer" and I note that the applicant was not removed for reasons to do with lack of competence and/or poor performance. I also note and took into consideration the commendations and awards given to the applicant during his service. 8. The applicant's evidence, which I accept and took into consideration, is that he not been employed since his last day of service. Public interest 1. I am obliged to balance the effect of the Removal Order on the applicant against the proposition, which I accept is a valid one, that there is no place in the Police Force for a user of prohibited drugs. The respondent is entitled to hold that view and entitled to act on that view: Walsh v Commissioner of Police [2011] NSWIRComm 26; Baker v Commissioner of Police [2015] NSWIRComm 15. 2. Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins [2008] NSWIRComm 162 at [58]. 3. As I note above, the public interest here to be considered is one unique to the Police Act. The public interest is prescribed by the Police Act to include the public interest of maintaining the integrity of the Police Force, and also to include the fact that the Commissioner made the order pursuant to s 181D(1). 4. I bear in mind this principle set out in Lawrance v Commissioner of Police [2010] NSWIRComm 14, (unaffected on appeal) at [313]: 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. 1. I also bear in mind that a person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the Police Force as set out by his Honour Justice Brennan in Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 at 412: 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. 1. It is in the public interest that the respondent act so as to preserve the integrity of the Police Force by removing persons who use prohibited drugs. Summary and disposition of the matter 1. The effects of the removal on the applicant are significant, but while I have given these effects weight, they are subordinate, in my view of the balancing that is required in this particular case, to the right of the respondent to expect that his officers will not use prohibited drugs. 2. Further, it is a necessary consequence of the conclusion that the applicant deliberately consumed prohibited drugs, that he did not give a truthful account to the respondent, nor to this Commission. That has a bearing on the assessment of the tripartite test. 3. It is not in my view harsh, unreasonable, or unjust to remove an officer whom the respondent is entitled to find, on the evidence, consumed prohibited drugs, including the chronic and regular use of methylamphetamine, and was not honest about that fact. Addressing each limb of the tripartite test to this particular case, it was not harsh, including having regard to the consequences for the applicant, nor was it unreasonable, nor was it unjust, given the conduct of the applicant that the respondent was entitled to accept had occurred, for the respondent to remove the applicant from the Police Force. 4. The applicant has not met the task required of him under the statutory scheme, if the review is to succeed, of establishing that the removal of the applicant from the Police Force is harsh, unreasonable or unjust: s 181F(2) of the Police Act. Consequently, I cannot uphold the Application. Orders 1. The Order I make in this matter is that the application for review pursuant to s 181E of the Police Act by Youssef Ibrahim is dismissed. N J Constant Commissioner ********** Amendments 05 February 2019 - Date amended from 19 October 2018 to 19 September 2018 in paragraph 26 (4). 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: 05 February 2019