Industrial Relations Commission New South Wales Medium Neutral Citation: Rodney Lockley v Commissioner of Police [2019] NSWIRComm 1016 Hearing dates: 12 and 13 December 2017, 15 March 2018 Date of orders: 26 February 2019 Decision date: 26 February 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Seymour Decision: Application for Relief dismissed Catchwords: POLICE – removal of police officer – s.181D Police Act 1990 – application for review of order of Commissioner of Police – criminal offence - misconduct – consideration of mitigating factors – Undertaking not to consume alcohol - public interest - removal not harsh, unreasonable or unjust – application dismissed Legislation Cited: Police Act (1990) s 181D, 181E, 181F Cases Cited: Allison v Commissioner of Police [2018] NSW IRComm 1005 Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 Byrne v Australia Airlines Limited (1995) 185 CLR 410 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Dobbie (2006) 157 IR 44 Commissioner of Police v Reid-Frost (2010) 192 IR 363 Klazidis v Commissioner of Police [2016] NSWIRComm 1014 Lawrance v Commissioner of Police [2010] NSWIRComm 149 Makita v Sprowles [2001] NSWCA 305 McGhee and Commissioner of Police [2010] NSWIRComm 22 Morris v Commissioner of Police [2016] NSWIRComm 1034 Police Service Board v Morris and Martin (1985) 156 CLR 397 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police [2009] NSWIRComm 31 Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 119 Category: Principal judgment Parties: Rodney Lockley (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr G Doherty (Applicant) Mr Y Shariff (Respondent) Solicitors: Walter Madden Jenkins (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2017/96785 DECISION 1. This is an application under s 181E of the Police Act 1990 ('the Police Act') by Rodney Lockley ('Mr Lockley'). Mr Lockley seeks a review of an order made by the Commissioner of Police under s 181D of the Act ('s 181D Removal Order') removing him from the NSW Police Force ('NSW Police'), on the grounds that the removal was harsh, unreasonable or unjust. Background 1. Mr Lockley was attested as a probationary constable with NSW Police on 11 May 2007. On or about 1 December 2016 he was served with a notice under s 181D(3)(a) of the Police Act which raised four allegations ('the Show Cause Notice'). On or about 9 February 2017, Mr Lockley provided his response to the Show Cause Notice ('the Show Cause Response'). On 21 March 2017, the s 181D Removal Order was made on the basis that all four allegations were substantiated and the Commissioner had lost confidence in Mr Lockley's suitability to remain a member of the NSW Police Force. Applicable law 1. Section 181D of the Police Act gives the Commissioner of Police power to remove an officer where the Commissioner no longer has confidence in the officer's suitability to remain a police officer, having regard to the officer's competence, integrity, performance or conduct. 2. An officer who is the subject of a removal order may apply for a review of the decision of the Commissioner of Police pursuant to s 181E of the Police Act, which 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. Section 181F of the Police Act prescribes how the Commission is to conduct the review: 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. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 at [134]; Commissioner of Police v Reid-Frost (2010) 192 IR 363 at [11]. The Commission undertakes a fresh and independent review of the decision, based on the material before the Commissioner of Police as well as any new evidence admitted. The Commission can agree with the findings and order made by the Commissioner of Police, or make different findings and orders. 2. Commissioner Newall summarised the approach to be adopted on an application for review of a removal order in Morris v Commissioner of Police [2016] NSWIRComm 1034 at [11] – [17]: 11. As to the process to be adopted on application for review, s 181F requires this Commission first to 'consider' the Commissioner's reasons for the decision to remove the applicant from the Police Service. The Commissioner's reasons are those set out accompanying the Order the Commissioner has made under 181D. It is then for the applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable or unjust: Act, s.181F(2). 12. It follows from the statutory structure that if an applicant cannot advance a case that has a capacity to establish that the order to remove was harsh, unreasonable or unjust, the application for review cannot succeed. In that circumstance an applicant has not carried his onus. I here observe that the meaning of the words 'harsh, unreasonable or unjust', which are disjunctive terms, in review proceedings under the Act must be the same as the meaning to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996. ('the IR Act') As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104]) 13. However, notwithstanding what was said in Hosemans, the test in coming to a view as to whether a given removal was harsh, unreasonable or unjust is not identical to that test in the IR Act. That is because the Commission in proceedings under s.181E must take into account matters, set out in s.181F(3)(b), which the Commission in an application brought under s.84 of the IR Act does not have to consider in addressing that question. Amongst other things, the Commission is to have regard to a 'public interest' which, because it is partly defined at s.181F(2)(ii), is not the same as the 'public interest' in the IR Act: Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 at [27] per Heydon J. 14.To return to the question of onus, if the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the Commissioner. 15. As the Full Bench held in Hosemans: "The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s181B of the Police Act was [sic] discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2)." (at [131]) To the same effect is Starr v Commissioner of Police [2001] NSWIRComm 226. The purpose of the Commissioner's case is, as the Act expressly provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. 16. In all this it must be borne in mind in every case that, as was held in Starr, 'each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case.' (at [140]) 17. To be specific, in each case the matters advanced by both the applicant and the Commissioner must be examined in their context. There would be, no doubt, some kinds of conduct by a police officer which would render a decision to remove him or her from the Force not open to any practical challenge regardless of the context in which they occurred, but those kinds of conduct would be few. In general there must be an assessment of the context in which the conduct which has caused the Commissioner to lose confidence in an officer occurred for a fair review to be carried out, and such an approach is mandated by the relevant provisions of the Act and the IR Act. Proceedings 1. Mr Lockley was represented by Mr Doherty of counsel. Statements of Mr Lockley and his wife Mrs Monica Lockley were tendered and both were cross-examined on their evidence. Medical reports of Dr Paul Friend and Dr Tanya Ahmed were tendered. Neither medical practitioner was required for cross-examination. Statements providing references for Mr Lockley were also tendered from Inspector Anthony Brazzil, Sergeant Jason Shaw, Sergeant Mark Simmons, Senior Constable Nerida Ellis, Senior Constable Bradley Davis and Constable Felicity Hunter. 2. The Commissioner of Police was represented by Mr Shariff of counsel. Statements of Detective Inspector Gavin Rattenbury, Senior Constable Gregory McKay and Chief Inspector Rodney Pratt were tendered. Chief Inspector Pratt was required for cross-examination. A medical report of Dr Julian Parmegiani was tendered. The documents upon which the Commissioner of Police made the s 181D Removal Order, referred to as the Commissioner's confidence materials, were tendered. 3. Both counsel provided detailed, helpful written submissions. In making my decision, I have given consideration to the evidence relied upon by the parties and the written and oral submissions. 4. The reasons of the Commissioner of Police for making the removal order are set out in the accompanying Statement of Reasons. The reasons for each allegation relied upon in the s 181D Removal Order are addressed in turn below. Allegation 1 – Cause damage to property - criminal offence Summary of incident 1. At around 3.50am on 3 January 2015, Mr Lockley poured motor oil down the muffler of the motorcycle belonging to his next door neighbour 'BK', thereby maliciously damaging her property. 2. On 21 January 2015, Mr Lockley was charged with intentionally or recklessly destroying or damaging property. Mr Lockley pleaded guilty at a hearing before Penrith Local Court on 29 June 2015, however made an application for the matter to be dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990. The application was denied. The Magistrate ordered that Mr Lockley be subject to a section 10 good behaviour bond for 12 months with no recorded conviction. He was ordered to pay compensation to BK in the amount of $122.35. Mr Lockley appealed the denial of the section 32 application and on 21 August 2015 the appeal was dismissed and the orders confirmed. 3. In the Show Cause Response and in the hearing before this Commission, Mr Lockley admitted he damaged the motorcycle and that he is guilty of a criminal offence under s 195 (1) of the Crimes Act 1900 of 'intentionally or recklessly' damaging property. He further acknowledged his actions were contrary to the policies and legislative provisions specified in the Show Cause Notice. 4. The Commissioner of Police found Allegation 1 to be proven and that this breached the Police Act (place integrity above all; uphold the rule of law; preserve the rights and freedoms of individuals); the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police whether on or off duty; comply with the law); and s 195(1)(A) of the Crimes Act 1900. In his Statement of Reasons, the Commissioner stated he considered Mr Lockley's actions in causing damage to the property of a member of the public to be 'at odds with your duties as a police officer. Your failure to adhere to the law you swore to uphold causes me great concern'. Submissions 1. Mr Doherty quite properly acknowledged that Mr Lockley's misconduct was serious. However, Mr Doherty submitted that Mr Lockley's moral or criminal culpability, and the gravity of the particular offending as a police officer, should be significantly reduced, based on the following considerations: 1. the evidence before the Commission supports a finding that Mr Lockley's actions were more impulsive than deliberate and that there was minimal planning of how the offence would be committed and putting steps in place to commit the offence; and 2. Mr Lockley's state of intoxication and his psychiatric conditions played a significant role in undermining his judgement and are causally related to his offending. In this regard, reliance is placed on the expert evidence of Dr Friend. 1. Mr Shariff submitted that the engagement by Mr Lockley in criminal conduct involving damage to the property of another person is repugnant to the fundamental duties and obligations of a police officer. It was further submitted there was potential for personal harm to BK and other members of the public arising from Mr Lockley's actions in respect of the motorcycle. Consideration – deliberate/planned actions 1. There was a great deal of time devoted in the evidence and submissions to the extent to which Mr Lockley's actions in respect of BK's motorcycle were deliberate/planned versus impulsive. This involved matters including whether Mr Lockley did his own oil changes of his car, where the bottle of oil used was located on the night in question, the covering of Mr Lockley's face with his T-shirt as opposed to creating a face covering beforehand and his running away when sensor lights came on at BK's residence. 2. Mr Lockley picked up the motor oil (regardless of where it was kept), under cover of darkness walked to BK's motorcycle parked at her residence (not any other property), covered his face with his shirt while pouring the oil into the muffler then ran away when sensor lights came on. This much is admitted or evident from the CCTV camera footage. Mr Lockley explained his reasoning for covering his face during the commission of the offence: Q [Commissioner]. I didn't quite understand your evidence, Mr Lockley, in relation to the covering of your face. You said a couple of times that you did it, it was your instinct to cover your face, you did it instinctively. What do you mean by that? Why did you have that instinct? A. I guess, as a police officer, I would have known that there's a possibility that I could be seen, what I was doing, and that's it, I just - it's just something that I would have - I think it's something that just come, I was thinking, "Well, somebody might see me doing this," so that's what happened. I never made a conscious - like, I could have fashioned any sort of face covering prior to going over there if it was so planned, I could have done a number of things to conceal my identity, but I didn't do those things, which is why I believe it was instinct rather than premeditated, "I'm going to cover my face". And there's the fact that I dropped it at the end, when I walked away anyway, so my mind mustn't have been focused on really trying to conceal my identity.Q [Commissioner]. But the instinct to cover your face was to conceal your identity, wasn't it, on what you've just said, because people might have seen you. A. Well, yes, I don't remember making that rational decision at the time, but from the footage, that's what it shows. [Underline emphasis added] 1. Mr Lockley damaged the property of his neighbour and sought to conceal his identity while doing so. In my view, seeking to draw fine distinctions about the degree to which it was premeditated as opposed to 'instinctive' does not materially assist in mitigating Mr Lockley's misconduct. Mr Doherty himself quite properly acknowledged that there was some planning ('minimal') by Mr Lockley and the offence was 'more impulsive than deliberate' - not that there were no elements of planning or deliberateness in Mr Lockley's actions. In any event, whether it was 'instinctive' or not, Mr Lockley admitted that he covered his face to avoid detection, thus seeking to conceal his identity. This is consistent with his separate acknowledgment that he knew what he was doing was wrong. 2. There was also exploration in the evidence of whether Mr Lockley's motivation was because the motorcycle was noisy and woke him up, or he was frustrated because he suspected BK of supplying illegal drugs and was getting away with it. Mr Lockley explained his conduct by reference to the suspicions he held that BK was engaging in criminal activity and that he was 'frustrated' she had not been caught or otherwise been subject to legal ramifications based on her activities. Mr Lockley's evidence was that while he had no memory of the actual reasons for his actions, he believed he would not have intended to cause serious or permanent damage to the bike and was probably more focussed on being menacing at the time. 3. In my view, both of the potential reasons for Mr Lockley's actions are equally concerning in light of Mr Lockley's position as a police officer. Neither of them justify a police officer pouring oil into the muffler of his neighbour's vehicle in the circumstances in which Mr Lockley did. If Mr Lockley's explanation for his most likely motivation is accepted, he was taking unilateral action against BK because he suspected her of illegal activities, instead of an official police investigation, charge and criminal proceedings. Mr Lockley acknowledged in cross-examination that doing so would be fundamentally inconsistent with his duties as a police officer. Further, the fact that he may have been seeking to be 'menacing' towards a member of the public, rather than intending to cause damage to her property, does not mitigate the inappropriateness and seriousness of his actions. 4. Mr Shariff submitted there was a risk of harm to BK or to the public of riding a motorcycle with oil in the muffler, which is not where oil should be put. However there was no specific evidence of the existence and extent of any such risk and I have not therefore taken that matter into account. In any event, it would not materially heighten the seriousness of the misconduct, which I consider arises by virtue of the nature and circumstances of the commission of the offence. Consideration – medical conditions 1. Mr Lockley contends that in assessing his misconduct, the Commissioner, and this Commission, should give weight to his medical conditions, specifically, post-traumatic stress disorder (PTSD) and Alcohol Use Disorder. It is submitted that Mr Lockley's conduct in respect of BK's motorcycle is mitigated by his high level of intoxication and his PTSD, together with his frustration that BK was engaging in criminal conduct without repercussion. 2. There were extensive submissions made regarding the nature of the expert medical evidence in these proceedings, the purpose for which it could legitimately be used and the appropriate weight it should be given. Mr Lockley relied upon the report of Dr Friend, Psychiatrist, who examined Mr Lockley. The Respondent relied upon a report of Dr Parmegiani, who reviewed Dr Friend's report. 3. Dr Friend examined Mr Lockley and gave an expert opinion in a detailed Report dated 21 June 2017. In forming his opinion, as well as examining Mr Lockley, Dr Friend reviewed extensive material relating to Mr Lockley's medical history, including earlier reports of Ms Rima Nasr (clinical and forensic psychologist, dated 20 April 2015) and Ms Barbara Majchrowska (consultant psychologist, dated 10 January 2017). Ms Nasr examined Mr Lockley at the time she prepared her report in April 2015. Ms Majchrowska's report was based on her treatment of Mr Lockley from 30 May 2015 until the date of her report (10 January 2017), initially weekly then fortnightly and monthly. 4. The Respondent submits that Dr Friend's report should be given little weight because the opinion was based on a history given to Dr Friend by Mr Lockley which is not supported by the evidence before the Commission about: 1. the amount of alcohol Mr Lockley was consuming at the time of the misconduct in January 2015 as part of his Alcohol Use Disorder – Mr Lockley exaggerated the amount of alcohol he was consuming (based on the evidence of Mrs Lockley which went to her observation of alcohol consumption after 3 January 2015); and 2. the work events that are said to have caused or contributed to his PTSD – Mr Lockley never complained of these events during his employment and did not provide details of them to Ms Nasr or Ms Majchrowska. 1. Mr Shariff submitted that the Commission could not be satisfied on provable facts that Mr Lockley was suffering from either condition at the time of the incident. Reliance was placed on Makita v Sprowles [2001] NSWCA 305 as authority for the submission that expert opinions are only as good as the evidence that the expert is given. On this basis, Mr Lockley had not discharged the onus of establishing that Dr Friend's opinion has weight. Indeed, Mr Shariff clarified that he was submitting there was sufficient evidence before the Commission to make a finding that Mr Lockley was not suffering from PTSD or Alcohol Use Disorder. 2. I do not agree. Dr Friend is a psychiatrist with expertise in (amongst other specialisms) Anxiety Disorders, Mood Disorders and Acute Psychiatry. Dr Friend's report is not based solely on a history that was given to him by Mr Lockley in the examination Dr Friend conducted, but on a significant amount of material that included, most relevantly, the reports of Ms Nasr and Ms Majchrowska who had examined and treated Mr Lockley. Further, I do not consider that the evidence relied upon in these proceedings by the Respondent reaches a level sufficient to displace Dr Friend's opinion, so formed. 3. Dr Parmegiani's report was not relied upon by the Respondent to challenge Dr Friend's opinion concerning his diagnosis of psychiatric conditions. As a consequence, I have not taken into consideration Dr Parmegiani's opinion that some matters were inconsistent with a diagnosis of PTSD. 4. Mr Doherty submitted that because Mr Lockley was intoxicated and suffering the diagnosed psychiatric conditions his judgment was undermined, and this was causally related to his offending. As a result, Mr Lockley's moral or criminal culpability and the gravity of the particular offending should be significantly reduced. 5. The issue is the relevance of the existence of these conditions to Mr Lockley's misconduct in light of all the circumstances and the other evidence about his conduct, including his own evidence. Notwithstanding his medical conditions and level of intoxication, Mr Lockley acknowledged in cross-examination that his judgment was not so impaired that he did not know what he was doing was morally wrong. This was supported (if such support be needed) by the expert evidence of Dr Parmegiani. 6. Although Mr Lockley's judgment may have been 'clouded', it was not impaired to the point where he failed to appreciate what he was doing. In my view, this is the key consideration. Mr Shariff submitted it heightens the seriousness of the misconduct in the early hours of the morning on 3 January 2015. I agree. It is a critical admission in this matter. It also heightens the seriousness of Mr Lockley's actions in the aftermath of that night, discussed further in these reasons in respect of his failure to identify a conflict of interest and disclose what he had done. 7. Accordingly, while I accept the existence of the medical conditions diagnosed by Dr Friend, in light of Mr Lockley's commendably frank admission that he knew what he was doing was wrong and thus his acceptance of moral culpability, I do not consider they mitigate the seriousness of his misconduct on the evening of 3 January 2015. Conclusion – Cause damage to property – criminal offence 1. I consider that Mr Lockley's actions in respect of Allegation 1 constitute serious misconduct. I agree with the opinion of the Commissioner of Police expressed in the Statement of Reasons and share his concern that Mr Lockley broke the law it was his sworn duty to uphold. A police officer damaging the property of a member of the public, whether intentionally or recklessly, is an extremely serious matter. It is conduct that is likely to bring discredit to the NSW Police Force. There is evidence that it did indeed do so in this matter, which was publicised on television and in the on-line press. I do not consider that the seriousness of the misconduct is mitigated because it was impulsive/not deliberate, nor by Mr Lockley's medical conditions. Allegation 2 – Unauthorised access of COPS Summary of issue 1. During his shift on 3 January 2015, Mr Lockley made four inquiries on the COPS system: 8:05 PM - "location enquiry" on BK's address, 8:12 PM – repeat "location enquiry" on BK's address, 8:13 PM - "party enquiry" on BK and 8.26 PM (including her criminal record and COPS events linked to her) - "party enquiry" on LK ('COPS Accesses'). 2. Mr Lockley did not enter any reasons for the COPS Accesses in the COPS system, nor did he record a reason for access in his police notebook, although he stated that this was consistent with his long-term usual practice to instead use the data field in COPS. At 8:25 pm on 3 January 2015, Mr Lockley sent an email to Senior Constable Greg McKay in relation to BK and some of his observations about her residence. He did not mention what he had done to BK's motorcycle on the evening prior. 3. Between 3 and 19 January 2015, Mr Lockley did not report his conduct with respect to BK's motorcycle to any supervisor or superior officer. On 19 January 2015, police officers from St Marys Local Area Command attended Mr Lockley's residence to question him about the incident with BK's motorcycle and Mr Lockley admitted his conduct. However Mr Lockley did not at that time also report that he had made the COPS Accesses in respect of BK and LK on his first shift after the incident. 4. The Commissioner found that that Mr Lockley conducted the COPS Accesses without authorisation and for an improper purpose, contrary to the Police Act, the Police Regulations, the Computer Operational Policing System (COPS) User Guide and the Code of Conduct. 5. Mr Lockley denied the COPS Accesses were unauthorised. He stated that his reason for accessing COPS was to enquire if BK or anyone with her surname who resided at the house was currently being investigated in relation to prohibited drugs and, if so, to identify the officer in charge of the investigation and make contact with the officer. He denies the access was because he wanted to know whether any incident had been reported overnight. Consequently, he denies that his Response to the Commissioner in respect of Allegation 2 was untruthful (Allegation 4). Submissions 1. The Respondent submitted Mr Lockley's explanation of his reason for the COPS Accesses, being to report BK's suspected criminal activities, was implausible and should not be accepted: 1. Mr Lockley gave evidence that he had previously disclosed certain information to Constable Falzon and his wife, with Constable Falzon having conducted surveillance on BK's home with nothing untoward being observed; 2. since passing on information to Constable Falzon, Mr Lockley had allegedly observed a Mercedes car and a white van at BK's house, however he did not pass that information on to Constable Falzon, nor did he retain any contemporaneous records, including the bits of paper on which he says he had taken down registration details. This meant that his observations of the car and the van were of little evidentiary value; and 3. Mr Lockley's email to Senior Constable Gregory McKay on 3 January 2015 claiming to report his genuine suspicions about BK and activities at her residence did not provide any useful or vital information which would have genuinely assisted an investigation. Further, Mr Lockley did not respond to Senior Constable McKay's request for further information, or inform his supervisors of the information that might be passed on to Senior Constable McKay. 1. Mr Shariff submitted that an inference could be drawn from the above evidence that Mr Lockley knowingly and deliberately accessed COPS without a lawful or authorised purpose. Rather, Mr Lockley's real purpose was to see if his conduct on the evening of 3 January 2015 had been reported. If that submission is accepted, it must follow that Mr Lockley was dishonest in his response to the Commissioner about his reason for the COPS Accesses, and in his evidence before this Commission whereby he maintained this position. 2. Mr Doherty submitted that Mr Lockley's explanation that he made the COPs Accesses because he was concerned about illegal activities at BK's residence is supported by his evidence as follows: 1. prior to 3 January 2015 Mr Lockley held genuine suspicions about BK being involved in supplying prohibited drugs using her motorcycle, which was corroborated by Mrs Lockley; 2. Mr Lockley told Constable Falzon and his wife about his suspicions in late 2014. These officers were not called by the Respondent and a Jones v Dunkel inference should be drawn that their evidence would not assist the Respondent in disproving such suspicions were in fact raised with them by Mr Lockley; and 3. Mr and Mrs Lockley gave evidence of their observations of a Mercedes car and a white Suzuki van at BK's residence which Mr Lockley thought was suspicious, and Mr Lockley recorded the number plate of the white van on a bit of paper, although he did not retain that paper. 1. Mr Doherty responded to criticisms about the manner in which Mr Lockley reported his suspicions about BK: 1. Mr Lockley stated that his purpose in sending the email to Senior Constable McKay was "to offer assistance in the case if he required it and deemed it suitable". Mr Lockley acknowledged in cross-examination that his email conveyed nothing by way of intelligence and was of no evidentiary value, however it was "the beginning of dialogue, in my opinion, and that I was going to continue talking to Senior Constable McKay". He further stated that the reason he did not respond to a reply email from Senior Constable McKay on 19 January 2015 was because he was by that time under investigation for his actions in respect of BK's motorcycle and recognised he had a conflict of interest; 2. Mr Lockley acknowledged he was "somewhat confused" as to why he did not submit an intelligence report rather than sending an email to Senior Constable McKay. He suggested he may have considered a conflict of interest at the time and perhaps erred on the side of caution. When it was put to him that he had not raised this earlier in his Response to the Commissioner, Mr Lockley explained he was reconstructing what he was thinking at the time because he is now in a much better frame of mind; and 3. he acknowledged he did not retain any contemporaneous records of the Mercedes or the white van, including the bits of paper on which he had allegedly taken down registration details, resulting in his observations of the car and the van being of little evidentiary value in any charges ultimately laid against BK. 1. Mr Doherty submitted that considered as a whole, the evidence does not support the drawing of the inference submitted by the Respondent, that Mr Lockley's accesses were unauthorised or not for a genuine purpose: 1. Mr Lockley had no motive to make inquiries about the offence being reported, because he was unaware there was a CCTV security camera and partially covered his face until he dropped his shirt. He therefore did not know he might have been detected committing the offence; 2. he could have accessed information outside COPS to determine if the offence had been reported or if he was a suspect leaving no audit trail; and 3. it was very unlikely that just 16 hours after the offence had been committed a general duties investigation would have progressed to the point of him being identified or linked to the incident. 1. Reliance was placed on the application of the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, given the seriousness of the consequences of a finding that Mr Lockley's stated reason for access was not his true reason for access. This included a consequent finding that Mr Lockley was untruthful in his responses to the Commissioner and to this Commission. Consideration – unauthorised access to COPS 1. There is no doubt that it was an extremely serious error of judgment for Mr Lockley to make the COPS Accesses in circumstances where he knew what he had done to BK's motorcycle only 16 hours before and that it was wrong. However Mr Lockley consistently maintained in his reasons given to the Commissioner and in these proceedings that he was frustrated that BK was 'getting away with' criminal conduct at her residence and that he made the accesses because of his suspicions about BK. This evidence was largely unchallenged in cross-examination. Mr Lockley made no admissions in respect of this aspect of his case, in contrast to other aspects that he frankly acknowledged, such as the fact that he knew right from wrong when he engaged in the criminal offence. 2. I accept that Mr Lockley had genuine suspicions about BK undertaking illegal activities at her residence. At the same time, the manner in which Mr Lockley dealt with and reported his suspicions was inadequate for a police officer of his seniority and experience. He did not keep contemporaneous notes of his observations about the car and van, sent an email rather than making an intelligence report and did not follow up with Senior Constable McKay. They are actions which would not reasonably be expected of a competent and experienced Senior Constable who was concerned about alleged illegal activities in his neighbourhood. 3. Nevertheless, this is an insufficient basis upon which I can be comfortably satisfied to the relevant Briginshaw standard that Mr Lockley made the COPS Accesses for an unauthorised purpose. Weighing all of the relevant matters, I do not consider there is adequate evidence before me to draw the necessary adverse inferences that Mr Lockley accessed COPS to determine if BK or anyone else had reported his activities from the night before, then reported his suspicions about BK to Senior Constable McKay for the purpose of seeking to justify or 'cover' the accesses. Accordingly, I do not find that Mr Lockley engaged in misconduct in respect of Allegation 2 – unauthorised access of COPS. It is therefore unnecessary for me to address the submissions made about the impact of Mr Lockley's medical conditions in respect of Allegation 2. Allegation 3 – Failure to identify or report a conflict of interest Summary of issue 1. Mr Lockley admits that on 3 January 2015 when he accessed information on COPS about BK, he failed to identify that he had a conflict of interest in respect of BK, in circumstances where he had damaged BK's motorcycle 16 hours before. He admits his actions were contrary to the specified policies and legislative provisions that applied to him as a police officer. Submissions 1. Mr Doherty submitted that Allegation 3 should be considered in the context of Mr Lockley's diagnosed psychiatric conditions. Mr Lockley continued to labour under the symptomology of those conditions and therefore did not have the 'benefit of a clear mind'. Reliance was placed on the opinion of Dr Friend that when Mr Lockley made the COPS Accesses he experienced a loss of judgement, probably whilst in a disassociated state. 2. Mr Doherty clarified in his reply submissions that Mr Lockley's evidence was that he made the COPS Accesses because he had decided to take appropriate actions to discover if BK, or anyone with her last name who resided at the house, was currently being investigated in relation to prohibited drugs and 'to take steps to advise the officer in charge of [his] knowledge'. The reasons Mr Lockley sent the email to Senior Constable McKay was to introduce himself and let him know that he believed BK was actively involved in drug supply, that he had previously provided information to Senior Constable Falzon, offer him 'assistance in the case if he required it and deemed it suitable' and open up dialogue and come up with details if they proceeded talking to each other. 3. Mr Shariff submitted there was an inconsistency in Mr Lockley's position. Mr Lockley sought to excuse his conduct in failing to identify and manage the conflict of interest by reference to his medical conditions and the 'disassociated state'. However Mr Lockley's evidence before the Commission is that he was not intoxicated when he made the COPS Accesses while on duty 16 hours after damaging BK's motorcycle, and he was undertaking the accesses for a legitimate purpose, in furtherance of a potential criminal investigation into the conduct of BK. 4. Mr Shariff submitted that there was a clear conflict of interest in accessing the COPS record of BK after Mr Lockley had committed an offence in relation to her property. Mr Lockley also failed to consider, at the time he made the COPS Accesses or afterwards, that his conduct could potentially undermine any criminal investigation into BK by Senior Constable McKay or another officer. Consideration – failure to identify or report conflict of interest 1. Each police officer has a personal responsibility to take 'reasonable steps' to identify, avoid and manage conflicts of interests in the performance of their duties – actual, perceived or potential conflicts. The Procedures for Managing Conflicts of Interest and the Code of Conduct explain this is necessary to protect the public interest, maintain public confidence, prevent corruption and manage allegations of misconduct. 2. A conflict of interest arose because BK lived in Mr Lockley's street and he knew her in a personal capacity, Mr Lockley had damaged BK's property 16 hours before he made the COPS Accesses and did not disclose his involvement in doing so. 3. Mr Lockley acknowledged that when he made the COPS Accesses, he knew he had poured oil in BK's motorcycle. He did not state he had no recollection of his actions, and was frank in his admissions in cross-examination that he knew his conduct was actually or potentially criminal conduct. Further, his case was that he was not intoxicated when he was at work at the time he made the COPS Accesses relating to BK, her residence and her relative LK. 4. Accordingly, there was a clear conflict of interest between Mr Lockley's personal interest arising from the fact he had committed an offence against a member of the public that he had not disclosed, and his duty as a police officer. Mr Lockley ought to have been aware of the existence of such a conflict, given his 10 years' experience and his position as a Senior Constable. He did not take any steps in respect of the conflict of interest. 5. Further, Mr Lockley's conduct had the potential to prejudice any genuine criminal investigation that was being conducted into BK's conduct. The seriousness of Mr Lockley's failing in this regard is demonstrated in the following exchange in cross-examination: Q. I'll come back to that point. Can I just go to a different issue. You were at least aware by the evening of 3 January that Senior Constable McKay was conducting some kind of investigation into Bianca, correct? A. He was listed as the officer in charge of that particular case, yes. Q. And you knew that you had engaged in some conduct that was targeted at either the person or property of the subject of that police investigation, correct? A. Yes. Q. And you didn't realise, did you, and you still don't realise that your conduct had the potential to scuttle a proper police investigation? A. I guess my involvement could be perceived as tainting the investigation, yes. Q. And as a police officer or former police officer, you know, don't you, that in criminal prosecutions if the defence got hold of that kind of information, it would prejudice the whole charges that would be laid against a suspect, correct? A. That's correct. Q. So at the point in time that you were passing on, according to you, some vital intelligence that you thought was vital at the time to Senior Constable McKay you were withholding from him another element of important intelligence, weren't you? A. The - what had occurred earlier that day? Q. Yeah? A. Yes. Q. That your own conduct had the potential to seriously compromise an active police investigation? A. That's correct. Q. And you withheld that and as I think you accepted before lunch that your conduct would not have come to light but for the CCTV footage, isn't that right? A. (No verbal reply) Q. You had no intention of disclosing your conduct, did you? A. No. Q. And so again in that regard your conduct left the community in a position where an active police investigation was occurring without you having disclosed that your conduct had compromised it, correct? A. That's correct. Q. And do you accept that that conduct left the community in the position where it wasn't being protected by police officers in whom it reposes such trust? A. Yes, I - yes. Q. And do you also recognise that your conduct brought the police force and its officers into disrepute? A. Yes. [Underline emphasis added] 1. Mr Lockley's conduct in not identifying or reporting his conflict of interest is very concerning. Mr Lockley committed a criminal offence and acknowledges he knew he had potentially done so. Despite this, he accessed the COPS records of the member of the public against whom he had committed that offence. He failed to identify such accesses as a conflict of interest with the potential to adversely impact public confidence in the police force. 2. This occurred in circumstances where Mr Lockley took no steps to disclose his misconduct with respect to BK's motorcycle, at the time he made the COPS Accesses or thereafter. Indeed, he admitted he did not ever intend to report his misconduct, if it had not otherwise been discovered and put to him on 19 January 2015. He did not disclose, on 19 January 2015 or thereafter, that he had made the COPS Accesses. Mr Lockley further acknowledged that he failed to consider that accessing BK's COPS records could also potentially jeopardise any investigation into her potentially criminal activities that he was seeking to assist by emailing Senior Constable McKay. These are serious failures in judgment. 3. It was submitted on behalf of Mr Lockley that while he was not intoxicated at the time of the COPS Accesses, the medical opinion of Dr Friend was that he was nevertheless in a 'disassociated state' due to the Post Traumatic Stress Disorder and that this is a relevant matter to take into account. It appears this was put in mitigation of the seriousness of the misconduct. 4. The medical opinion of Dr Friend under the heading 'Effect of the psychiatric diagnoses' was preceded by, and predicated upon, his general observation that 'the specific effect of each condition at particular times would be extremely difficult to determine without a very detailed history, corroborated by others, and even so, it may not be possible'. Then, in respect of the specific effect of the PTSD condition on the COPS Accesses, Dr Friend's opinion goes no higher than, based on the history given to him, Mr Lockley experienced a 'sense of dissociation' when he was accessing the COPS database and that Mr Lockley was 'probably' in a disassociated state. 5. Dr Friend also notes that Mr Lockley said he could remember doing it and was aware of what he was doing, although had no sense that this was the wrong thing to do and could not understand how he could have thought that way. Mr Lockley described in his history given to Dr Friend that he did not know why he made the accesses and did not think of the consequences, it did not make sense to him, 'he was just so focussed and distressed at the time and very upset that BK was apparently dealing drugs'. 6. However in these proceedings, Mr Lockley's evidence is that he did have a purpose in accessing COPs, however it was not to see if his actions on the evening of 3 January 2015 had been reported. On his evidence, he made two decisions - to see if there was any current investigation in relation to prohibited drugs and then to contact the officer in charge. In my view, these decisions demonstrate an exercise of judgment, albeit a poor one that failed to identify the conflict of interest and consequences. I agree with the submission of the Respondent that in respect of Allegation 3, Mr Lockley cannot 'have it both ways'. I do not consider that the evidence is sufficient to mitigate or justify Mr Lockley's misconduct in respect of the COPS Accesses, being his failure to identify and manage the conflict of interest. 7. I find Allegation 3 to be a proven incident of misconduct that constituted a breach of the Police Act (ensure that authority is exercised responsibly); the Code of Conduct (take reasonable steps to avoid a conflict of interest, report those that cannot be avoided and co-operate in their management; effectively manage conflicts of interest; identify and avoid conflicts); and the Procedures for Managing Conflicts of Interest (protect the public interest by taking reasonable steps to identify and avoid conflicts of interest). Allegation 4 – Untruthfulness in the reasons for access of COPS Summary of Issue 1. The Commissioner's Statement of Reasons expressed this Allegation as follows: "… that you were untruthful, or at the very least less than fully frank, when you said in your Response to the investigation, dated 8 December 2015, that you accessed BK's profile for a lawful and reasonable purpose and that you did not access any information within BK's COPS profile other than an intelligence report relating to drug activity." 1. It appeared that the Commissioner did not rely in these proceedings on the second limb set out in the Statement of Reasons, relating to the precise records accessed by Mr Lockley. Submissions 1. Mr Lockley denies this allegation. Mr Doherty relied upon his submissions in relation to Allegation 2 and submitted that as a consequence, the evidence does not support that Mr Lockley was untruthful or less than fully frank in relation to the reasons why he made the COPS Accesses. 2. Mr Shariff submitted that the 'unassailable conclusion' to be reached if Allegations 1 and 2 are accepted by the Commission is that Mr Lockley was untruthful or, at the very least, less than fully candid and frank. Consideration – untruthfulness in reasons for COPS Accesses 1. I have found Allegation 2 not proven. There is insufficient evidence on which I can be comfortably satisfied that Mr Lockley falsely constructed the reason for making the COPS Accesses then lied to the Commissioner of Police, and this Commission, about such reason. Accordingly, the 'unassailable conclusion' referred to by Mr Shariff does not arise. 2. Nevertheless, Mr Lockley was less than fully frank in his dealings with Senior Constable McKay, in failing to tell him about Mr Lockley's own criminal conduct with respect to BK in the preceding 16 hours. This exacerbates Mr Lockley's misconduct in respect of Allegation 3 (Failure to Identify or Report a Conflict of Interest). 3. I also consider that Mr Lockley's failure to report his actions in respect of BK's motorcycle was conduct that was less than fully frank in his dealings with his employer. He did not disclose what he had done, and stated that he did not ever intend to disclose it. As Mr Shariff submitted, this is 'quintessentially' an absence of candour and in my view, destructive of the confidence that the Commissioner must hold in police officers. 4. People make mistakes. It is how one chooses to deal with the consequences of a mistake that is critical to preservation of trust, integrity and relationships. Mr Lockley made a very serious mistake when he poured oil into his neighbour's motorcycle on the evening of 3 January 2015, and he knew it. However Mr Lockley then had a choice. He could have reported what he had done to his superior officer, explaining he was intoxicated, acknowledging his conduct was incompatible with being a police officer sworn to uphold the law and expressing contrition for his actions. He could have raised with his employer the symptoms of his medical conditions that he was experiencing, which he had not previously disclosed and which, on the medical evidence and evidence of his colleagues, were not otherwise immediately apparent in his performance of his duties. 5. At the same time, instead of making the COPS Accesses himself on 3 January 2015, he could have reported his concerns about BK's suspected illegal activities to his superior officer and given them the opportunity to make the necessary inquiries. That officer could then liaise with Senior Constable McKay, preserving the integrity of that investigation. Instead, Mr Lockley chose to make the COPS Accesses himself in a clear conflict of interest situation. 6. The Commissioner's Statement of Reasons found that Mr Lockley was untruthful 'or at the very least less than fully frank' in his statement that he made the COPS Accesses for a lawful and reasonable purpose. On the evidence before me, I have not reached the same conclusion in respect of Allegation 2 that Mr Lockley was untruthful. Consequently, my finding in respect of Allegation 4 differs from the Commissioner's. 7. Nevertheless, I find that aspects of Mr Lockley's conduct as set out above were contrary to the same provisions of the Police Act, Police Force Handbook and Code of Conduct relied upon by the Commissioner, namely failure to place integrity above all (Police Act); always act honestly (Police Force Handbook); behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force and act honestly, truthfully and with integrity (Code of Conduct). These are relevant matters in assessing whether the Commissioner can have the necessary confidence in Mr Lockley to serve as a police officer. I reiterate that I do not consider the medical evidence justifies or mitigates Mr Lockley's misconduct, for the reasons and on the basis set out in respect of Allegations 1 and 3. Gravity of misconduct 1. In Allison v Commissioner of Police [2018] NSW IRComm 1005, I considered the proper approach for the Commission to take in assessing allegations of misconduct against police officers as follows: [150] It was submitted by Mr Chin that the proper approach for the Commission to take is to consider each incident or matter not in isolation, but as part of a pattern of conduct that caused the Commissioner of Police to lose trust and confidence in Mr Allison as a police officer. I agree. In determining whether a police officer has justifiably lost the trust and confidence of the Commissioner of Police, any other approach would be contrary to common sense. An employment relationship should be viewed in a holistic manner, not artificially dissected into separate incidents examined in isolation from each other and the overall context in which they occur. 1. I have adopted this approach in considering whether the dismissal of Mr Lockley from his employment with NSW Police was harsh, unreasonable or unjust. I have taken into account the accumulation and nature of the proven allegations, being Allegations 1 and 3, as well as what I have identified as Mr Lockley's lack of candour. I consider Mr Lockley's misconduct, considered as a whole, to be serious. Unreasonable or unjust 1. The concepts of harsh, unjust and unreasonable set out in Byrne v Australia Airlines Limited (1995) 185 CLR 410 at 465 are applicable to s 181E reviews. The removal of a police officer may be harsh, unreasonable or unjust, or a combination of all three. Mr Lockley submitted his removal was unreasonable and unjust on both substantive and procedural grounds. Procedural unfairness 1. There was no specific evidence of alleged deficiencies in following procedures or policies. The procedural unfairness was said to arise from the Commissioner's failure to take into account relevant matters raised in Mr Lockley's Response to the Notice. Mr Doherty submitted that this contributed to the ultimate determination of the issue of whether the termination was harsh, unreasonable or unjust: Starr v Commissioner of Police [2001] NSWIRComm 226 at [140]. 2. It was submitted that in the overall assessment of Mr Lockley's criminal and moral culpability and seriousness of his misconduct as a police officer, the Commissioner failed to give adequate weight to the following matters: 1. Mr Lockley's state of intoxication when damaging the motorcycle; 2. the fact that Mr Lockley's Alcohol Use Disorder was caused by his duties as a police officer; 3. his increased consumption of alcohol resulting in his intoxication was as a consequence of psychological call trauma he suffered from his police duties on 24 December 2014 when attending the Burchfield suicide; and 4. the overall effect of Mr Lockley's poor mental health and the symptomology he was suffering from in late December 2014 and January 2015 and the effect on his judgement on 3 January 2015. 1. Mr Shariff submitted there was no evidence that the Commissioner failed to consider Mr Lockley's propositions. Rather, the Commissioner rejected Mr Lockley's position on the basis of the evidence and materials before him at the time of the review, which was open to him to do. I agree. I do not consider there is sufficient basis upon which to find that the Commissioner's decision was unreasonable in this regard. 2. In any event, and as quite properly acknowledged by Mr Doherty, procedural deficiencies are not determinative and should be assessed in light of the independent review undertaken by this Commission, on the evidence and submissions in these proceedings. Substantive grounds 1. I consider the proven aspects of Mr Lockley's misconduct as serious. He breached fundamental obligations imposed on him by the NSW Police Force Code of Conduct and Ethics, in particular "Comply with the law whether on or off duty", "Behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty" and "identify and manage conflicts of interest". 2. The media reporting of Mr Lockley's offence is also relevant. The matter resulted in negative publicity. A copy of an article by the TV program 'A Current Affair' that appeared under 'News/National' on Nine Digital was exhibited to the Statement of Detective Inspector Rattenbury. It contains a 'still' picture of Mr Lockley from the CCTV footage, under the headline 'Police officer caught vandalising neighbour's motorcycle on CCTV'. It reports Mr Lockley as 'Detective Senior Constable Rodney Lockley of Quakers Hill Police Station' and that he had pleaded guilty but received no criminal conviction for the malicious damage. 3. In summary, Mr Lockley breached the law, in doing so publicly damaged the good reputation of the NSW Police Force, acted with a lack of integrity and candour in not disclosing what he had done and failed to identify a clear conflict of interest in making the COPS Accesses. I do not consider his removal for such misconduct to be unreasonable or unjust in the circumstances. Harshness 1. It was submitted that the dismissal was nevertheless harsh, for the following reasons: 1. because it is disproportionate to the gravity of the misconduct; 2. because it is disproportionate in light of Mr Lockley's particular subjective circumstances that are relevant in mitigation of his misconduct and actions; and 3. in its consequences for Mr Lockley's personal and economic situation. 1. I have already addressed the issue of gravity of the misconduct in my consideration of the allegations against Mr Lockley and the substantive grounds for the removal. I consider that dismissal in the circumstances, based on the proven misconduct which I have found to be serious, is not disproportionate. Extensive submissions were made in respect of the other grounds of harshness, each of which I consider in turn below. Employment history and character 1. Mr Lockley had 10 years' service prior to his removal with what Mr Doherty submitted was a reasonably good promotional history. There is evidence of good work history. He was awarded a Region Commander's Commendation in 2014 for excellent police work performed under difficult and dangerous conditions. There was no evidence of any adverse disciplinary matters involving Mr Lockley, apart from a reprimand relating to unauthorised COPS access. 2. There was evidence from six character witnesses, all current serving police officers who worked with and/or supervised Mr Lockley. They ranged from the rank of Constable, Senior Constable, Sergeant to Inspector. The written character references were given in the knowledge that Mr Lockley had engaged in misconduct. The witnesses encountered Mr Lockley throughout his service history and prior to the misconduct: Toshack v Commissioner of Police [2009] NSWIRComm 31 at [75]. 3. Mr Lockley relies upon the character evidence as going to the issue of whether or not the removal was harsh, unreasonable or unjust and the issue of reinstatement as the appropriate relief. It was submitted on his behalf that Mr Lockley is generally a person of good character: 1. his misconduct was an aberration and due regard should be had to the fact that the misconduct was committed under clouded judgement arising from the combination of poor psychiatric health and intoxication; and 2. the desirability of maintaining Mr Lockley's service within the Police Force, both in the interests of the Police Force and the community with the evidence to be taken into account in the Respondent's evaluation of whether or not he can retain confidence in Mr Lockley. 1. Mr Doherty submitted that the character evidence should weigh heavily in favour of Mr Lockley. I accept that Mr Lockley had a good employment history, the character evidence is favourable and that Mr Lockley loved his work as a police officer. That is also demonstrated by his commitment to bringing these proceedings and seeking the remedy of reinstatement. These are important matters to which I have given weight, particularly the character references. 2. However there are contrary indicators relating to Mr Lockley's character in respect of his conduct after the incident on 3 January 2015. I agree with the submission made on behalf of the Respondent that Mr Lockley's failure to disclose his wrongdoing must also be taken into account in assessing his character. 3. Mr Lockley made a deliberate decision that he was not going to tell anyone about his conduct because he was hoping he might not get caught. He did not 'come clean', either immediately or in the days thereafter when he had time to further reflect upon what he had done and the position he was in vis a vis his obligations under the Code of Conduct. Rather, as he acknowledged, he hoped he would not be found out and did not disclose what he had done until it was discovered. The fact that when confronted he then admitted his conduct and did not lie about it does not excuse his failure to disclose up to that point. Harshness – personal and financial consequences 1. Mr Lockley submitted that termination was harsh in its consequences for his personal and economic situation. Mr Lockley went directly from high school to the Police Force and holds no trade or other qualifications and the guilty plea in respect of the criminal charge of damaging property renders him ineligible to apply for a security officer's licence. There is evidence there has been adverse financial impact upon him and his wife of the dismissal, in that they have altered their mortgage repayments in the short term to interest only payments so as not to default on their loan. 2. I accept that, as with any dismissal, there are adverse financial and personal impacts. However Mr Lockley is only 30 years old and able to pursue other employment opportunities outside policing and security. There was no conviction recorded in respect of the offence which would appear on background checks for positions in other industries. 3. Further, Mr Lockley's own conduct is directly relevant to the assessment of these matters. His unfitness to serve as a police officer has arisen because he committed a criminal offence, then, in the aftermath of that offence, engaged in further conduct evidencing unfitness, namely exercising poor judgment in identifying a conflict of interest and not disclosing what he had done. 4. It was submitted that the particular circumstances surrounding the damaging of the motorcycle and being charged with the offence attached heightened stigma to the dismissal. The CCTV footage of Mr Lockley pouring oil into the muffler of the motorcycle provided to the media and aired on Current Affair was said to have 'deeply embarrassed and humiliated' Mr Lockley. The essence of this submission appeared to be that Mr Lockley has therefore already suffered serious consequences arising from his actions and these are matters to be taken into account by this Commission in assessing harshness and determining remedy. 5. I do not consider Mr Lockley's personal suffering arising from the media coverage of his offence is a matter to be given significant weight. It arose as a result of Mr Lockley's own conduct. No conviction was recorded in respect of the offence and Mr Lockley was placed on a 12 month good behaviour bond. Further, the fact that the media coverage of the offence caused embarrassment to Mr Lockley obviates the damage to the reputation of the NSW Police Force that also resulted from Mr Lockley's actions. 6. In Klazidis v Commissioner of Police [2016] NSWIRComm 1014, Mr Klazidis was employed in an administrative role within the Police Force and had been convicted of the criminal offence of affray. Commissioner Murphy found the offence to be extremely serious, then proceeded to consider various matters impacting on the assessment of harshness. Mr Klazidis had 23 years' of unblemished service, a sentence of 'no conviction recorded', presented evidence of good character and work ethic and support from colleagues and supervisors, submitted the incident was 'one mistake' and had a personal impact on him, his family and finances. Commissioner Murphy noted as follows: [100] With respect to the applicant's "non-public facing role" and the fact that the incident was "one mistake" which occurred not at work and did not gain media attention, I would regard as factors having greater mitigating impact in cases of less serious misconduct. Such factors have less mitigating impact in cases, such as the present, which involve very serious misconduct. 1. I have found that Mr Lockley's misconduct was serious. Further, Mr Lockley's circumstances are materially different. Mr Lockley was a serving police officer in a public facing role when he committed an offence resulting in criminal proceedings and the matter did gain media attention, both on television ('A Current Affair') and online news media. They are matters to which I have given weight in assessing the harshness of removal as an outcome. The mitigating factors referred to by Commissioner Murphy are not present. Harshness – medical conditions 1. Mr Doherty submitted it was harsh to dismiss Mr Lockley after more than a decade of mostly excellent service, whilst he was suffering PTSD and Alcohol Use Disorder that were caused by his duties as a police officer both generally and specifically at the time he committed the offence against BK's motorcycle. 2. In respect of his state of intoxication, I have found that Mr Lockley's judgment was not so impaired on the evening of 3 January 2015 that he did not appreciate what he was doing and that he knew it was wrong. Further, the evidence discloses that Mr Lockley was not intoxicated in the aftermath of 3 January 2015 when he made the COPS Accesses and omitted to disclose what he had done to his employer. I also note the opinion of Dr Friend as to the precise impact of Mr Lockley's conditions at specific times and in respect of particular actions. In these circumstances, I do not consider the reason Mr Lockley consumed alcohol, whether because of his duties as a police officer or otherwise, significantly impacts the assessment of harshness. Remorse, likelihood of re-offending and Undertaking 1. The Commission is entitled to take into account as mitigating factors objectively demonstrable remorse, contrition and acceptance of responsibility: Commissioner of Police v Collins [2008] NSWIRComm 162 at [67]; Lawrance v Commissioner of Police [2010] NSWIRComm 149 at [26(c)]. 2. It was submitted that the dismissal has had a devastating effect on Mr Lockley and that his misconduct was an 'aberration' when considered in light of his clouded judgement at the time of the offence. Mr Doherty submitted there was 'ample evidence' of remorse and in this regard referred to the positive steps taken by Mr Lockley to address his Alcohol Abuse Disorder and his offering of an Undertaking to the Commission and the Commissioner of Police not to consume alcohol. The payment of compensation to BK in respect of the damage to her motorcycle was also relied upon, albeit lightly. 3. Mr Lockley's position in these proceedings that his medical conditions mitigate his culpability necessarily diminishes his acceptance of personal responsibility to some extent. However in his Show Cause Response, Mr Lockley clearly expressed remorse for his actions in respect of BK's motorcycle on the night of 3 January 2015. He apologised to the Commissioner for his conduct, noting the shame he has brought upon the Police Force, his family and himself. There are similar statements of regret reported by medical practitioners in their reports. 4. These statements, and the frank acknowledgements given by Mr Lockley in these proceedings of various matters, demonstrate he understands he made a serious mistake. They are relevant in assessing whether Mr Lockley will re-offend. However there is another, and in my view more critical, factor impacting his likelihood of reoffending. 5. On 13 December 2017, Mr Lockley gave a formal undertaking to the Industrial Relations Commission and the Commissioner of Police that he would not consume at any time any substance containing alcohol, whether at work or otherwise, and submit to an alcohol testing regime. 6. Mr Doherty relied upon the decision in Commissioner of Police v Dobbie (2006) 157 IR 44, wherein the Full Bench considered proffered undertakings by an appellant that he would no longer consume alcohol. The Full Bench stated at 58 [34]: The giving of an undertaking was, as correctly submitted by Mr Docking, a relevant consideration for the Commission in making a determination as to whether the removal of the police officer was harsh, unjust or unreasonable. It was also a consideration that may have been taken into account in evaluating mitigating factors that may have explained (but not justified) the respondent driving under the influence of alcohol. Further, whether an applicant was suffering from a depressive illness at the time he or she engaged in conduct that attracted a removal order and whether he or she has recovered may be relevant to whether the dismissal was harsh, unreasonable or unjust and to whether reinstatement is practicable. 1. In Lawrance v Commissioner of Police [2010] NSWIRComm 149, the Commission stated at [26(b)]: This consideration may also include questions as to whether an undertaking was provided not to further engage in conduct which was causal of any misconduct: Dobbie at [34], [52] and [67] and Johnston at [42]. This consideration may depend very much on the particular circumstances of the case and the conduct engaged in by an applicant. The authorities make clear that relevant considerations in mitigation are whether the misconduct was due to an excessive consumption of alcohol and if the officer had taken steps to seek professional help to overcome that problem: Evans at [7], Collins at [67] and Dobby at [34] and [52] (see a similar approach with respect to medical or psychological problems: Johnston at [43] and [61]. 1. Mr Doherty submitted that the Undertaking is relevant to the assessment of the genuineness of Mr Lockley's intention to address his alcohol use disorder. 2. The difficulty that I have with this submission is that the genuineness of Mr Lockley's intention is not the determinative matter. Rather, it is the medical evidence about his prognosis. I accept the medical opinion of Dr Friend. Dr Friend's report made the following comments about Mr Lockley's prognosis, relevant to his risk of reoffending and reinstatement to performing his duties as a police officer: Mr Lockley is not currently experiencing any symptoms of posttraumatic stress disorder and is abstinent of alcohol. However he is at risk of both of these conditions returning. I would regard him as having an alcohol use disorder severe in partial remission but at risk of relapsing. The posttraumatic stress disorder symptoms have resolved because he is no longer working as a police officer and not exposed to trauma. It is likely that these symptoms would return to some degree, albeit less because he is abstinent of alcohol, if he returned to working as a police officer. [Underline emphasis added] 1. Dr Friend recommended a treatment plan consisting of multiple elements, including trials of various antidepressant medications supervised by a psychiatrist with specialty in psychopharmacology, a medication to reduce his alcohol consumption, assessment by a psychiatrist with specialty in addiction psychiatry, potentially attending an alcohol rehabilitation program or counsellor, continuing his gym membership to increase fitness and lose weight. He further opined: If he was to resume working as a police officer he is likely to benefit from continuing to take an antidepressant medication and medication to reduce the desire to consume alcohol as there will be increased levels of stress and there is the possibility there will be some return of symptoms particularly or post traumatic stress disorder. If he returned to work as a police officer I would recommend he continue to receive psychiatric treatment by a psychiatrist skilled in psychopharmacology. I would recommend that he continue to be treated by a psychologist who is skilled in the treatment of post traumatic stress disorder. He would need to consult the psychologist about once a month and the psychiatrist perhaps every six to eight weeks. [Underline emphasis added] 1. Dr Friend further stated that he could not absolutely say that Mr Lockley could be rehabilitated: If all of the above can be implemented then it is highly likely that Mr Lockley will remain abstinent of alcohol, will increase his level of fitness and overall be more resilient at dealing with stressful situations. He wishes to return to work as a police officer and if he can maintain abstinence from alcohol that is achievable. What is difficult to determine is how much return of posttraumatic stress disorder symptoms he will experience. He would be likely to cope with them far better than previously as he is abstinent of alcohol and his depressive symptoms are probably likely to be treated by the antidepressant medication. He would also be assisted by receiving ongoing psychological and psychiatric treatment. However I cannot absolutely say that he could be rehabilitated to returning to work as a police officer. [Underline emphasis added] 1. Dr Ahmed created a treatment plan for Mr Lockley in light of the recommendations in Dr Friend's report. In her Report dated 20 November 2017, she advises that as at 20 November 2017, Mr Lockley had been abstinent from alcohol and had no cravings to drink for 10 months. Dr Ahmed also stated that Mr Lockley had complied with and responded well to his treatment plan, including attending appointments with her and AA meetings, and that he had 'worked hard to address his health issues in a holistic way'. Dr Ahmed also stated: Mr Lockley had been abstinent from alcohol since February 2017. He had been attending AA. Assessment of his decisional balance/motivation re continuing abstinence from ETOH [ethyl alcohol] revealed high levels of sustained motivation. He had no urges or cravings to drink. It was clear that the alcohol had a close relationship to work related trauma and out of this situation Mr Lockley had no desire to drink alcohol. 1. I consider that the medical evidence indicates that if Mr Lockley returned to active policing duties in the NSW Police Force there is a risk of relapse. Dr Friend's prognosis about return to work is guarded and conditional. If Mr Lockley continued to comply with the multi-factor treatment plan it was 'highly likely' he would remain abstinent and would 'likely' cope with recurring PTSD symptoms 'far better than previously'. However Dr Friend could not 'absolutely say' he would be rehabilitated to return to work. 2. Dr Friend's prognosis was also given in circumstances where Mr Lockley was absent from the workplace and accordingly not subject to any 'triggers' that may arise from the performance of active police duties. This would necessarily include the types of duties and activities, recounted by Mr Lockley to Dr Friend, which caused Dr Friend to form the view that Mr Lockley suffered from PTSD caused by his work as a police officer. Dr Ahmed similarly highlighted the fact that Mr Lockley being out of the work environment is related to his desire to drink alcohol. For these reasons, as submitted by the Respondent, reinstatement could expose Mr Lockley to risk of harm, and the Respondent to potential liability of Mr Lockley suffering the medical conditions. 3. Mr Lockley is to be commended on his actions in respect of his rehabilitation. I have great empathy for his efforts to overcome his Alcohol Use Disorder. However in my view, the Undertaking does not, and cannot, adequately mitigate the identified risk. Mr Doherty described the Undertaking as a 'solemn promise' that Mr Lockley will be abstinent from alcohol. Solemn or not, and irrespective of the genuineness of Mr Lockley's intention, promises can be broken and if that occurs, there are consequences for Mr Lockley, and potentially his colleagues and the public. 4. Mr Lockley suffers from two serious medical conditions currently in remission but in the opinion of Dr Friend, at risk of relapsing. The cause of Mr Lockley's PTSD according to Dr Friend is his work as a police officer. Dr Ahmed similarly opines that there is a relationship between work-related trauma and Mr Lockley's desire to drink alcohol. The promise in the Undertaking is made at a time where Mr Lockley is not performing active police duties. 5. Mr Shariff submitted that there were a number of problems with the Undertaking, including that the Commission does not have the necessary power to impose the Undertakings as conditions of reinstatement and that it alters the statutory regime for drug and alcohol testing. It is not necessary for me determine those matters, as I do not consider the Undertaking satisfactorily addresses the risks of Mr Lockley returning to work, for the reasons set out above. Further, in light of the seriousness of the proven misconduct and balancing of the other factors relating to harshness, I do not consider the giving of the Undertaking otherwise renders the removal harsh, unreasonable or unjust. I would not make the orders giving effect to the Undertaking as a matter of discretion. Public interest 1. The Commission is required to have regard to 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 of Police made an order pursuant to section 181D(1) of the Police Act: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 119. Considering the public interest involves a balancing of interests and is a matter of fact and degree: Commissioner of Police v Collins (2008) NSWIRComm 162 at [58]. 2. In this matter, public interest considerations weigh heavily against overturning the Commissioner's order. It is essential that a police officer acts with integrity at all times, both on and off duty, and upholds the law. 'Integrity', as it appears in the Police Act, includes concepts of both personal integrity of the individual officer and institutional integrity of the NSW Police Force. 3. Personal integrity includes consideration of whether the officer is a person of sound moral principle and character which may involve questions of honesty, uprightness and sincerity: Toshack v Commissioner of Police [2009] NSWIRComm 31. While I have not found that Allegation 4 is made out as found by the Commissioner, I have found that Mr Lockley did not conduct himself with candour after he committed the criminal offence. 4. The Respondent submitted that Mr Lockley has exhibited a lack of integrity and the Commissioner of Police has lost confidence in him. Mr Lockley was a Senior Constable who engaged in criminal conduct (whether intentionally or recklessly), failed to disclose his conduct in the hope he would not be caught, exercised poor judgment in the aftermath of the offence. I consider the loss of confidence in him to be justified. 5. As observed by Commissioner Newall in Morris v Commissioner of Police [2016] NSW IRC 1034, 'there is a real public interest in maintaining a capable and experienced police force'. While Mr Lockley has some experience (10 years), the key consideration is whether he is capable of performing his duties as a police officer. There is evidence that if he were to return to general policing duties, he may relapse. This would not only create personal risk to Mr Lockley, but necessarily impact on him performing his duties effectively and capably. Given the nature of policing and duties of serving police officers, this could also create risks to his colleagues and the public. 6. There is also the consideration of institutional integrity and public confidence that the police will comply with the laws that apply to those they are sworn to protect. The importance of maintenance of standards of discipline within the NSW Police Force was described by Brennan J in Police Service Board v Morris and Martin (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.' [Underline emphasis added] Conclusions 1. In considering whether a dismissal is harsh, the Commission must take into account the gravity of the misconduct. I consider the two proven allegations to be serious. It is also appropriate in assessing whether the removal decision is harsh, unreasonable or unjust to consider all of the proven matters as a whole. When this is done, dismissal is not a disproportionate outcome. 2. I have had regard to the fact that the Commissioner has made the Order removing Mr Lockley. In weighing Mr Lockley's interest against the public interest, I have given careful consideration to the mitigating factors advanced on his behalf. However I do not consider that Mr Lockley has discharged the onus on him to demonstrate that the removal was harsh, unreasonable or unjust. The Commissioner is entitled to expect police officers to comply with the law of NSW that they are sworn to uphold and enforce in the community they serve. In the circumstances, reinstating Mr Lockley to active duty would undermine public confidence in the NSW Police Force. 3. I decline to interfere with the decision of the Commissioner of Police. Reinstatement 1. I have found that the removal of Mr Lockley was not harsh, unreasonable or unjust. Accordingly, the question whether reinstatement to his position as Senior Constable is an appropriate remedy does not arise for determination. I note however that even if I did consider relevant unfairness existed, reinstatement would be impracticable. 2. The power of the Commission to order reinstatement of an employee must be exercised with caution, particularly where a public position is involved: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 120; McGhee and Commissioner of Police [2010] NSWIRComm 22. 3. The medical evidence in respect of Mr Lockley's medical conditions canvassed in relation to the Undertaking indicates there is an unacceptable risk in reinstating him to active police duties. Further, if the removal had been found to be unfair, the public interest considerations discussed in these reasons would similarly be relevant in determining the appropriate relief to be granted: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at 111. In this regard, a relevant factor would include that reinstating Mr Lockley, subject to an undertaking or otherwise, would likely again be reported by the media and potentially cause further reputational damage and undermine public confidence in the integrity of the NSW Police Force. 4. The Application for Review pursuant to s 181E of the Police Act by Rodney Lockley is dismissed. JANE SEYMOUR Commissioner ************ Amendments 01 March 2019 - In paragraph [104] inserted after "he did not" the word "appreciate" 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: 01 March 2019