Industrial Relations Commission New South Wales Medium Neutral Citation: Phillip Platts v Commissioner of Police [2019] NSWIRComm 1023 Hearing dates: 10, 11, 12 April 2017 and 1, 2 November 2017 Date of orders: 29 April 2019 Decision date: 29 April 2019 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: (1) Application for review is upheld; (2) The applicant shall be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal within 14 days from the date of this decision; (3) The respondent, the Commissioner of Police, shall pay to the applicant an amount equivalent to what he would have earned, but for being removed, between the date of his removal and the date of his reinstatement at the rate of his ordinary rate of pay less any monies/remuneration earned from work undertaken during that period. Those monies shall be paid within 14 days from the date of this decision; and (4) The period of employment of the applicant with the respondent shall be taken not to have been broken by his removal. The intervening period between the date of the applicant's removal and his reinstatement to the NSW Police Force shall be counted for all purposes as a period of employment. Catchwords: POLICE - removal of Police Officer – s 181D Police Act 1990 - application for review of order of Commissioner of Police under s 181E – hearing de novo - misconduct allegations – Commissioner's Reasons adopt investigation findings – allegations not supported by the evidence – public interest – tripartite test considered - removal harsh, unjust and unreasonable – application upheld – orders made Legislation Cited: Police Act 1990 Road Transport (Safety and Traffic Management) Act 1999 Road Rules 2008 Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 14 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Byrne v Australian Airlines (1995) 185 CLR 410 Commissioner of Police v Collins (2008) NSWIRComm 162 Commissioner of Police v Reid-Frost (2010) 192 IR 363 Hosemans v Commissioner of Police (2004) 138 IR 159 Morris v Commissioner of Police [2016] NSWIRComm 1034 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Toshack v Commissioner of Police [2009] NSWIRComm Van Huisstede v Commissioner of Police (2000) 98 IR 57 Texts Cited: NSW Police Code of Practice for Crime NSW Police Guidelines on Procedural Fairness Complaint Practice Note PSC ref 06/01 NSW Police Force Safe Driving Policy [REDACTED] NSW Police Urgent Duty Guidelines Category: Principal judgment Parties: Phillip Platts (applicant Commissioner of Police (respondent) Representation: Counsel: D Nagle (Applicant) M Seck (Respondent) Solicitors: G Willis (Applicant) K&L Gates (Respondent) File Number(s): 2016/00249993 Publication restriction: A non-publication order is in force in relation to all documents under tabs 7 and 8 of the "key documents" bundle tendered by the respondent related to the NSW Police Safe Driving Policy, November 2009 and July 2016. Judgment 1. The applicant in this matter, Mr Phillip Platts has made an application under s 181E of the Police Act 1990 ("the Police Act") for review of an order of the Commissioner of Police ("Commissioner" or "respondent") made on 9 August 2016, removing him from the NSW Police Force. 2. At the time of his removal, the applicant was a Police Transport Command Officer responsible for patrolling public transport in the City region, so as to prevent and detect fare evasion, criminal activity and the like. It was common ground that the applicant was a successful proactive Police Officer. 3. On 22 October 2014, the applicant activated a red light/speed camera in Waitara while conveying an intoxicated person to Central Station where that person could be placed in the custody of a friend. An investigation concerning the incident followed and the then Commissioner of Police, Commissioner Andrew Scipione, AO, APM subsequently determined that the applicant had manufactured an excuse for activating the speed camera. 4. The applicant has at all times maintained that he was following a red sedan when he activated the speed camera. The investigation report and the Commissioner's findings determine the red sedan did not exist and the applicant had lied to his chain of command and the Investigators. 5. Following consideration of the investigation report and the applicant's show cause response, the Commissioner determined that he did not have confidence in the applicant's suitability to continue as a member of the NSW Police Force. At the time of his removal, the applicant had achieved the rank of Senior Constable and had been a sworn Officer since January 2007. 6. Part 9 of the Police Act deals with the management of conduct of Police Officers within the NSW Police Force. Division 1B of Pt 9 deals with the summary removal of Police Officers in whom the Commissioner has lost confidence. 7. Section 181D of the Police Act relevantly provides that the Commissioner, by order in writing, may remove a Police Officer from the Police Force if the Commissioner does not have confidence in the Officer's suitability to continue as a Police Officer having regard to the Police Officer's competence, integrity, performance or conduct. 8. In this particular case, the Commissioner considered that the applicant's conduct and integrity was such that he could not have confidence in his suitability to continue as a Police Officer. 9. The Commissioner exercised the discretion available to him and determined that pursuant to s 181D, the applicant's "conduct" and "integrity" was contrary to the provisions of the Police Act, the Road Rules 2008, the NSW Police Force Safe Driving Policy, the NSW Police Force Code of Conduct and Ethics and the NSW Police Handbook. 10. The Commissioner's reasons for his decision to remove the applicant from the NSW Police Force were set out in a document entitled "Statement of Reasons" which accompanied the s 181D order. 11. The applicant contends that given the terms of the Commissioner's Order, the respondent (or the decision maker acting on behalf of the respondent) gave insufficient weight or no weight at all, to the contents of his response to the s 181D(3) Show Cause Notice. 12. The applicant submits the order is harsh because of its consequences for his personal and economic situation. The order is unjust because the applicant contends that he is innocent of the allegations sustained against him. 13. The applicant further contends that the Order is unreasonable because it was based on inferences that should not reasonably have been drawn from the material before the respondent. Moreover, the respondent made findings of fact against him that on the balance of probabilities, it was not reasonable to make. 14. In determining this matter, I have given consideration to the extensive evidence and written materials relied upon by the parties. The fact that I do not refer exhaustively to that evidence and written materials (or elements that were addressed in submissions helpfully advanced by counsel) does not mean that I have not read those materials. The reverse is the case. 15. Mr D Nagle of counsel appeared for the applicant. Mr M Seck of counsel appeared for the respondent. Non-publication order 1. A non-publication order was made in relation to all documents under tabs 7 and 8 of the "key documents" bundle tendered by the respondent related to the NSW Police Safe Driving Policy, November 2009 and July 2016. Legislative Framework 1. Section 181D of the Police Act provides: 181D Commissioner may remove Police Officers: (1) The Commissioner may, by order in writing, remove a Police Officer from the NSW Police Force if the Commissioner does not have confidence in the Police Officer's suitability to continue as a Police Officer, having regard to the Police Officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the Police Officer a notice setting out the grounds on which the Commissioner does not have confidence in the Officer's suitability to continue as a Police Officer, and (b) must give the Police Officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the Police Officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the Police Officer from the NSW Police Force. (5) The removal takes effect when the order is made. (6) (repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a Police Officer from the NSW Police Force under this section has the same effect as if the Police Officer had resigned (or, in the case of a Police Officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the Police Officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 1. A Review of a Commissioner's decision to remove a Police Officer under s 181D is provided for under sections 181E, 181F and 181G contained in Division 1C of Pt 9 of the Police Act. Those sections of the Act relevantly provide: Division 1C – Review of Commissioner's decision under Division 1B 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 (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a Police Officer, as referred to in section 181D (1). 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)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 1. An application for review is a hearing de novo. It is 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]. 2. The Commission as presently constituted is required to undertake a fresh and independent review of the decision. That review requires an assessment of the material brought against the Police Officer and any new or additional evidence admitted during those proceedings. It is subsequently open to this Commission to confirm the Commissioner's findings in whole or in part or, in the alternative, determine different findings and/orders. 3. Commissioner Newall conveniently summarised the approach to be adopted by the Commission in determining 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. The allegations that gave rise to applicant's removal 1. Four allegations were set out in the "show cause" notice served on the applicant pursuant to s 181D(3)(a) of the Act on 29 March 2016. The allegations were framed as follows: Allegation 1 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 22 October 2014, while driving a Police vehicle on duty, you travelled at approximately 72 km/h in a 60 km/h speed zone without lawful reasonable excuse. In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the Road Rules 2008, the NSW Police Force Safe Driving Policy, the NSW Police Force Code of Conduct and Ethics. 1. In his response to the s181D Notice, the applicant denied that he had sped without lawful reason or cause. The applicant considered he had reasonable grounds to believe the driver of a vehicle of interest, later identified as a red sedan with the partial registration XCF ***, may have been affected by alcohol or drugs, "given the manner of driving" that he had observed prior to his Police vehicle activating the speed camera. 2. The applicant conceded that the circumstances of his driving did not come within the exemption prescribed by Rule 305 (1)(b) of the Road Rules 2008 on the grounds that the vehicle was not displaying blue/red flashing lights or sounding an alarm. Notwithstanding that concession, the applicant maintained that he had a lawful reason or excuse for exceeding the speed limit and he was taking reasonable care at the time. 3. The applicant urged the Commissioner to consider the following: * He had observed a red sedan commit a traffic offence - the vehicle crossed from lane 1 to lane 2 on the Pacific Highway, north of the Romsey Street intersection; * He was intending to conduct a speed check on the red sedan. It was therefore inappropriate for him to activate the warning lights and/or siren of the Police vehicle; * He identified a speed check was warranted given the speed of the red sedan approximately 360 metres before the intersection, a distance commencing approximately from Hornsby Street to Romsey Street; and * The speed of the red sedan at the intersection as measured by the RMS road log was 60.6 km/hour and increasing to 60.7 km/hour, suggested the vehicle was exceeding the speed limit and was accelerating away from the Police vehicle behind. 1. The Commissioner determined the red sedan did not exist and was a fiction manufactured by the applicant to defend his camera activation. In support of that proposition, the evidence set out below shows that the applicant and his work colleague on the night of the incident, Constable Bernhardt, independently recorded or noted the red sedan had a partial registration XCF ***. 2. A witness for the Commissioner also agreed that contrary to the investigation findings and the Commissioner's Reasons for the applicant's removal, the RMS CCTV footage shows there was a vehicle in front of the Police vehicle at the point of camera activation. 3. The applicant referred to his Record of Interview response that he was initially "driving at approximately 60 km/hour when the red sedan XCF *** continued to gain distance" on the Police vehicle to support the proposition that it was reasonable for him to conclude that vehicle was exceeding the speed limit. 4. The applicant contended that on an objective assessment of the circumstances, his speed being 12 km/hour in excess of the speed limit presented no actual or potential danger to either himself, the other occupants of the Police vehicle or any other person in the vicinity of the Police vehicle travelling on the Pacific Highway at the time. 5. Moreover, the roadway was multi-laned in both directions, well-lit with a dry surface. There was no other traffic between the Police vehicle and the red sedan XCF *** at the time the speed camera was activated. Commissioner's findings – Allegation 1 The Commissioner was satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 22 October 2014, while driving a Police vehicle on duty, you travelled at approximately 72 km/h in a 60 km/h speed zone without lawful reasonable excuse. I find that your conduct was contrary to the Police Act 1990, the Road Rules 2008, the NSW Police Force Safe Driving Policy, the NSW Police Force Code of Conduct and Ethics. Section 7 of the Police Act 1990 relevantly states: Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) uphold the rule of law, … (h) ensures that authority is exercised responsibly. Rule 20 of the Road Rules 2008, as in force on 22 October 2014, relevantly states: Obeying the speed-limit A driver must not drive at a speed over a speed-limit applying to the driver for the length of the road where the driver is driving. Rule 305 of the Road Rules 2008, as in force on 22 October 2014, relevantly states: Exemption for drivers of Police vehicles (1) A provision of these Rules does not apply to the driver of a Police vehicle if: (a) In the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that provision should not apply, and (b) If the vehicle is a motor vehicle that is moving – the vehicle is displaying a blue or red flashing light or sounding an alarm … [REDACTED] Point 1 of the NSW Police Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. You must always act lawfully and never in a way that brings, was likely to bring discredit to the NSW Police Force You must act honestly, truthfully and with integrity in all your dealings with other employees and the public. … Point 2 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must act with care and diligence when on duty. As an employee of the NSW Police Force you must carry out your work professionally. This means paying all due care, attention and diligence to your duties, fulfilling them to the best of your ability and supporting other employees to do the same. Point 3 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must know and comply with all policies, procedures and guidelines that relate to their duties. If you are going to work lawfully and effectively you need to understand and act in accordance with the standards that govern your duties. Point 6 of the NSW Police Force Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must comply with the law whether on or off duty. The NSW Police Force is responsible for upholding the law. Unlawful and / or criminal conduct by employees of NSW Police is incompatible with that role and also likely to bring the NSW Police Force into disrepute. All employees of the NSW Police Force are expected to comply with the law at all times. Allegation 2 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you falsified an official Police record (your official Police notebook): In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to the Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct and Ethics, as outlined above in relation to Allegation1. 1. The applicant denied that he had falsified an official Police record as alleged. In his defence, the applicant maintained: … the manner of the driving of the red sedan partial registration XCF was a cause of concern to me and was a reason that I exceeded the speed limit, which resulted in me activating the speed camera. 1. In such circumstances, the applicant contended it was appropriate he recorded that particular fact in his Police notebook. Commissioner's findings - Allegation 2 The Commissioner was satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that you falsified an official Police record (your official Police notebook): I find that your conduct was contrary to the Police Act 1990 and Point 1 of the NSW Police Force Code of Conduct and Ethics as described in Allegation 1. Allegation 3 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were untruthful in your initial report to Sergeant Tylor dated 12 November 2014. In particular, you stated that you: (i) Observed a motor vehicle that appeared to cross from lane two to lane one, while it negated bends on the Pacific Highway; (ii) From a distance of approximately 30 metres, deciphered the first three letters of the car registration plate as XCF; (iii) Sped up so you could read the remainder of the number-plate and possibly start a speed check, before pulling the driver over to speak to them and possibly test their sobriety; and (iv) Informed Sergeant Chapman of the incident after it occurred. In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics, as outlined above in relation to Allegation 1. Furthermore, it appears you have acted contrary to the NSW Police Force Handbook. 1. In his response to the Commissioner, the applicant denied that he was untruthful or that he acted contrary to the NSW Police Force Handbook as alleged. 2. The applicant provided a lengthy response in relation to the specific particulars set out in Allegation 3 and summarised below in dot point form. (i) Observed a motor vehicle that appeared to cross from lane two to lane one, while it negated bends on the Pacific Highway * A contemporaneous record of the incident was recorded in the applicant's Police notebook; * The applicant noted that Constable Bernhardt had corroborated the presence of the red sedan XCF on the Pacific Highway after the camera had been activated. However, the applicant contended that the Constable "was not aware of that vehicle beforehand" as stated in his second interview dated on 15 May 2015: … At the time I did not know where the vehicle had come from. Because the vehicle did not overtake us I thought that the vehicle may have come from the Blue Gum Hotel. I did not see the vehicle swerve out from there. We caught up to the vehicle and I have taken a piece of paper and I have started to take down the registration of the vehicle ahead. * Constable Bernhardt was unaware of the existence of the red sedan XCF when the speed camera activated because, as he stated in his second interview: I was just looking to the building on left hand side, the shops out the window. * In his second interview, Constable Bernhardt states that the red sedan was not within sight before the intersection because "the vehicle did not overtake us and I was unaware of the car when Phillip accelerates after the car". In that interview, the Constable admits that prior to travelling through the intersection, he did feel the Police vehicle accelerate. However, only after passing through the intersection and the camera being activated did he have concern "to look forward"; * The applicant contended that if, prior to camera activation, Constable Bernhardt was not looking ahead or forward but rather, "looking to the buildings left hand side, the shops out the window" and/or "turning and actually looking at her" (the intoxicated person on board), it was understandable that the Constable "would not be aware of the existence of the red sedan XCF on the roadway immediately prior to the camera being activated; * The applicant noted that Constable Bernhardt in his second interview also acknowledged "that there was no discussion between us concerning the red sedan XCF…". Against that backdrop, the applicant further contended that the Constable's "inattentiveness to the roadway ahead does not negate my assertion having observed that vehicle prior to the intersection"; (ii) From a distance of approximately 30 metres, deciphered the first three letters of the car registration plate as XCF 1. The applicant referred to the series of responses set out in his Record of Interview dated 19 February 2015 and sought to defend his conduct respect to this allegation as follows: * The applicant noted that during his interview, he had explained that after activating the speed camera, "I turned my attention to the back of the car I got closer to it and that's when I identified (it) as a red sedan with the partial and number-plates of XCF"; * The applicant also stated during his interview that prior to crossing the intersection, he was unable to identify the colour of the sedan because it was night time. It was not until he passed through the intersection that he could identify the vehicle as a red sedan, XCF"; * After activating the camera, the applicant stated, "I focused back on the car in front of me. I would say that I was about 30 metres away from it (when I was able identify it) as a red sedan … (with) the partial number-plate of XCF. The applicant also referred to his Interview where he had stated, "I remembered Constable Bernhardt and I confirming the partial registration of the red sedan XCF"; and * During the Interview, the applicant had referred to a contemporaneous note that he made in his notebook concerning the partial registration XCF of the red sedan made when he returned to Hornsby Police Station after the incident. (iii) Sped up so you could read the remainder of the number-plate and possibly start a speed check, before pulling the driver over to speak to them and possibly test their sobriety 1. The applicant provided the following response with respect to this allegation: * The applicant contended that he did not "speed up" so he could read the remainder of the red sedan's number-plate. This particular aspect of the allegation was inaccurate; * The applicant referred to his interview and affirmed that when he set the speed camera off, the red sedan was ahead of his Police vehicle. He was momentarily distracted by the flash and subsequently commenced to look for vehicles that might have been responsible for activating the camera as he was unaware at the time that the Police vehicle had actually activated it; * In his second interview, Constable Bernhardt corroborates: We have caught up the vehicle (the red sedan) and I have taken a piece of paper and I have started to take down the registration of the vehicle ahead. * Constable Bernhardt also stated in second interview: "When I first noticed it (the red sedan) was far ahead, we go through the camera and I feel the Police vehicle accelerate and then there is a few seconds before I consider vehicle ahead at the first corner. It was not until the Police vehicle had gone around the corner that I am able to see that it is a red vehicle. We go through the bends and catch up to the car and I start to write part of the rego down on … the truck was just normal speed. Philip appeared not to show any more interest in the car". (iv) Informed Sergeant Chapman of the incident after it occurred 1. The applicant maintained that he had informed Sergeant Chapman of the camera activation shortly after it had occurred. He had correctly recorded that fact in his Report. He referred to Sergeant Chapman's Record of Interview dated 4 March 2015 where the Sergeant stated that he could not recall the applicant speaking to him about the camera activation. Moreover, the Sergeant was also unable to recall discussing the incident with him after reading his Report. 2. The applicant contended that the failure of Sergeant Chapman to recollect a particular conversation almost five months after the event does not rule out the possibility that he did have that discussion with the Sergeant and he had simply forgotten. 3. Sergeant Chapman could not deny the possibility that the conversation did occur. In that regard, the applicant sought to rely on the Guidelines on Procedural Fairness and Part 8A Evidence Based Investigations issued by the Professional Standards Command which relevantly provide: 3. Decisions to be made only on relevant and logically probative evidence Decisions must be based on the facts of the case under consideration. They must not be based on suspicion, gossip or rumour, or be merely the Investigator's opinion. There must be facts or information to support all adverse findings or comments against a subject Officer. 1. The applicant also sought to draw the Commissioner's attention to Complaint Practice Note PSC ref 06/01 which states: Untruthfulness is more than simply being evasive or not being fully frank and forthright. For a finding of untruthfulness to be sustained it must be established that the subject Officer said something they knew to be untrue. There must be a factual basis for the decision. (applicant's emphasis) 1. A further plea put to the Commissioner by the applicant was a request that he consider the distinction between a finding that he was untruthful and a finding that his evidence cannot be accepted. In that regard, the applicant noted that this particular difference has been recognised in a number of authorities including Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ); and Deane J at 271. 2. The applicant noted that in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Dixon J observed: In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences … an issue such as fraud [and other allegations of serious misconduct] must be proved "clearly", "unequivocally", "strictly" or "with certainty" … weight is given to the presumption of innocence and exactness of proof is expected. (applicant's emphasis) Commissioner's findings - Allegation 3 The Commissioner was satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were untruthful in your initial report to Sergeant Tylor dated 12 November 2014. The Commissioner found the applicant's conduct was contrary to the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics. The Commissioner also concluded that the applicant's conduct was contrary to the NSW Police Force Handbook. The NSW Police Force Handbook relevantly states: Conduct All NSW Police Force employees are expected to always act honestly, in accordance with the Oath of Office (Police Officers), the Code of Conduct and Ethics and the Statement of Values. Allegation 4 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were dishonest during your departmental interview on 19 February 2015: In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics, as outlined above in relation to Allegation 1 and the NSW Police Force Handbook as outlined above in relation to Allegation 3. Furthermore, it appears that you have acted contrary to section 167A of the Police Act 1990. Section 167A of the Police Act 1990 relevantly states: Offence of making false complaint about conduct of Police Officer or giving false information … (2) A person must not, in the course of the investigation of a complaint made under this Part, provide information to any of the following knowing information to be false or misleading in a material particular: … (b) a member of the NSW Police Force … … Maximum Penalty: 50 penalty units or imprisonment for 12 months, or both. 1. The applicant strenuously denied this allegation and relied upon his defence set out above under Allegations 1-3. 2. The applicant considered the Commissioner committed error when he determined "the red sedan" was a fabrication. The applicant further denied that he had failed to comply with operational procedures, standing orders and directives. Moreover, the applicant rejected the Commissioner's findings that his driving did not fall within the Urgent Duty Guidelines and the Safe Driving Policy. The Commissioner's Removal Order 1. On 9 August 2016, the applicant was issued an order under s 181D(1) together with the Commissioner's Statement of Reasons in accordance with s 181D(4) of the Police Act. The Order was expressed as follows: Order under section 181D(1) of the Police Act 1990 I, Andrew Phillip Scipione, Commissioner of Police, having considered your conduct and integrity do not have confidence in your suitability to continue as a Police Officer. By this Order, I remove you from the New South Wales Police Force. In reaching my decision, I have carefully considered the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the evidence contained in the supporting documentation, which were served on you. I have also taken into account your written response provided by your legal representative. The reasons for my decision are annexed hereto under the heading "Statement of Reasons". Your removal takes effect from the date of this Order. 1. The Commissioner's Statement of Reasons which accompanied the s 181D order dated 9 August 2016 contained the following Statement by Commissioner Scipione: Consideration As set out in my Notice, I am very concerned by each of the allegations set out above. I expect the highest standards of behaviour from sworn Officers of the NSW Police Force and for all NSW Police Force Officers to place integrity above all. I have carefully considered the information provided by you in your report, your record of interview and your Response. However, I am satisfied that the available evidence demonstrates that you travelled at speed without legal reason or excuse and risked, not only your own safety but that of your colleague, your civilian passenger and other members of the public. I am particularly troubled by your conduct as set out in Allegations 2 to 4. I am satisfied that you have been dishonest in your explanations of the incident in that you were untruthful in your official Police notebook and in your initial report to Sergeant Tylor. You then compounded matters by being untruthful to the investigator. I am disturbed about your belief that your excessive speed posed no actual or potential danger to yourself, the other occupants of the vehicle or to members of the public who may have been in the vicinity of the Pacific Highway at the time in question. I find this lack of insight in relation to your actions puzzling given your position in the Police Transport Command and the knowledge you should possess about the dangers of speeding. You should be acutely aware of the adverse consequences that can arise when a vehicle speeds. I accept the enquiries regarding the information contained in the camera log received from RMS showing that the 11 second difference between the vehicle in front and the Police vehicle driven by you would mean that at the time you entered the intersection, the vehicle in front was over 160 metres ahead of you. This contradicts your version of events that you first observed the car when it was approximately 300 metres before the intersection and your assertion that you identified the vehicle as a red sedan from a distance of 30 metres, after you had passed through the intersection. There are numerous parallels between both your and Constable Bernhardt's original versions of events, not least that you both recorded the exact same segment of the registration of the vehicle you alleged you were attempting to catch up to. I find that there was some discussion between you in relation to what should be reported in respect of this incident. At the very least, you were copied into Constable Bernhardt's email to Sergeant Tylor and were therefore aware at that time of the version that he was providing, prior to submitting your report or taking part in your departmental interview. I find that you then use this knowledge to tailor your version of the events to be consistent with those initially provided by Constable Bernhardt. I note that you assert that your comment to Constable Bernhardt, "Don't do that" was not in relation to him reporting the dishonesty but rather in circumstances where he was attempting to show his notebook to you to discuss the events on 22 October 2014, in circumstances where you were both under a direction not to discuss the matter. However this is inconsistent with the evidence of Constable Bernhardt and I do not accept your version of events in relation to the comment. I find that in making that comment you were requesting Constable Bernhardt to maintain his deception. I find that you have failed to demonstrate the minimum standards of candour and integrity I expect from any Police Officer. Constable Bernhardt now admits that his original version of events was untrue. Constable Bernhardt's admission, together with the independent evidence, gives me reason to hold serious concerns about your integrity. I accept Constable Bernhardt's evidence that you only showed an interest in the vehicle ahead after seeing the speed camera activate. As you are aware, integrity is one of the core values of the NSW Police Force. Any form of untruthfulness is entirely unacceptable. As a Police Officer, you should be acutely aware that the general public are entitled to expect that all Police Officers will behave honestly. The proper performance of your duties requires the highest standards of integrity and it is critical when dealing with allegations of criminal activity. Your conduct set out in Allegations 2 to 4 appears to demonstrate a failure on your part to reach the minimum standards expected from any Police Officer. … I expect any Officer to provide a truthful, full and frank account when asked about their duties. Failure to do so is utterly unacceptable. It undermines the public confidence in this organisation and damages its reputation. In the circumstances, I would have difficulty relying on your judgement in the future. I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a Police Officer. I expect and the law demands that New South Wales Police Officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales Police Officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all Police Officers and I expect them to adhere to the expectations of ethical and professional conduct. You have clearly breached the New South Wales Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility to make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a Police Officer. The Evidence For the applicant 1. Two affidavits were read by the applicant. The first filed on 30 January 2017 constituted his primary evidence and the second filed 27 March 2017 constituted his evidence in reply. A set of folders containing documents sought to be relied upon were attached to his first affidavit. Policing experience 1. The applicant set out a detailed history of his employment as a Police Officer. Between March 2011 and May 2015, the applicant was assigned to the Commuter Crime Unit (CCU) which later changed its name to the Police Transport Command (PTC). From March 2011 to October 2014 the applicant worked from the Parramatta CCU/PTC and at Hornsby PTC from October 2014 to May 2015. The applicant described the CCU/PTC as a proactive Police unit tasked to undertake foot patrols on public transport and adjacent areas where public transport operates: Being a proactive unit, it was our job to go out and look for things that may be of interest to us, which included things such as fare evasion, gang activity, drug dealing, graffiti … Malicious damage to public property and antisocial behaviour around public transport. 1. On some occasions, CCU/PTC duties required Officers to drive vehicles for part or their entire shift. On these occasions, Officers were also required to be proactive and deal with matters as they occurred. It was the applicant's evidence that when working at Hornsby as part of the Hawkesbury LAC, he participated in a large number of Police operations related to speeding, drivers using their mobile phones, random breath tests and the like: I participated in many of these operations, conducting hundreds of RBT's, speed checks and I have issued tickets for speeding and people using their mobile phones while participating in general duties and the CCU/PTC. Police driving rules and policy 1. In relation to conducting speed checks, the applicant contended that Police were taught to get close enough to the alleged offending vehicle so that the registration plate could be identified and then maintain a set distance behind the vehicle in order to detect its speed: (You) then stay behind alleged offending vehicle for at least 300 metres whilst maintaining a set distance from their car in order to detect the speed they are doing … Whilst you are conducting a speed check you do not use your lights and sirens as this would alert the alleged offending vehicle to your presence and they would obviously slow down and it may confuse other road users. 1. The applicant referred to exemptions set out in Rule 305 of the Road Rules made pursuant to the Road Transport (Safety and Traffic Management) Act 1999: 305 Exemption for drivers of Police vehicles (1) A provision of these Rules does not apply to the driver of a Police vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the provision should not apply, and (b) if the vehicle is a motor vehicle that is moving - the vehicle is displaying a blue or red flashing light or sounding an alarm. Note. Motor vehicle and Police vehicle are defined in the Dictionary. (2) Subrule (1) (b) does not apply to the driver if, in the circumstances, it is reasonable: (a) not to display the light or sound the alarm, or (b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm. 1. The applicant further deposed: 2. [REDACTED] Driving a caged vehicle 1. [REDACTED] Passenger Transport Command 1. The applicant described the work methods and related practices within the PTC in the following terms: At the beginning of each shift at the PTC, all persons on shift would be divided up into two person crews. One person of each crew would be in charge of doing a running sheet which would detail what those people did the during the shift and would include such information like how many trains were patrolled, and how many infringements, warnings and person searches and "move ons" the crew did. Our main duty was to patrol trains. All trains on the Sydney metro system have double-decker carriages. We patrolled train carriages by one person in the crew patrolling the top deck of the train or the other person would patrol the bottom deck of the train. That way, no person could evade us as we walked through the train. As a result of this method of patrolling, if one person stopped and spoke to someone for not having a train ticket, the other Officer would not witness the offence of the person failing to produce a valid ticket by the time they walked through the train carriage and back to where the Officer was talking to the person who had no ticket on the other deck. At least 50 per cent of the entries in my notebook have not been witnessed by another Officer and I am used to working by myself or what is referred to as an "alpha unit". At the end of each shift or throughout the shift the member of the team responsible for doing the running sheet would talk to the other team member about what they did, regardless of whether they saw it or not and record it. If an event occurred during the shift such as a camera activation, damage to equipment, damage to a civilian property or loss of equipment then the crew will talk to each other about this and record it as it is standard operating procedure in the PTC that both members of the crew are asked about the circumstances for loosing (sic) the equipment or getting the flat tyre or how a fence was damaged. Senior Constable McCrum speed camera activation 1. The applicant sought to distinguish the approach taken by NSW Police in relation to an incident where another Officer, Senior Constable McCrum activated a speed camera on 25 October 2014 compared to the approach adopted concerning his camera activation incident on 22 October 2014: I am aware that S/Constable McCrum informed S/Constable Egleton … about why he activated a speed camera on 25/10/2014 as S/Constable Egleton was not aware why S/Constable McCrum was attempting to catch up to the vehicle in front of him. S/Constable Egleton was also asked one month before S/Constable McCrum to submit a report … as to why S/Constable McCrum activated a speed camera. S/Constable Egleton could not have submitted his report if he had not been told by S/Constable McCrum what occurred. Windsor Police Station cell incident May 2009 1. The applicant referred to an incident that occurred in the custody area of the Windsor Police Station on 30 May 2009 where Officers were directed to place a particular offender in a cell. Despite being reminded earlier that day that he was required to remove his firearm when in the custody area, the applicant contended that the Police Handbook states that Officers are to wear all arms of appointments when attending an incident. Accordingly, the applicant entered the custody area wearing all of his arms and appointments. In the course of moving the offender to the cells, the applicant was assaulted by the offender. The offender was subsequently charged. 2. On the 5 June 2009, the applicant received a complaint in relation to what occurred in the custody area on 30 May. The complaint alleged that the applicant had used excessive force against the offender. A/Sergeant McTaggart alleged the applicant "began pushing (the offender) for no apparent reason". The complaint was sustained without viewing the CCTV footage of the custody area at the time of the alleged conduct. Moreover, the three other Officers also present in the custody area at the time were not interviewed. 3. The relevant fact sheet related to the incident stated it took three Officers to bring the offender under control. Those Officers subsequently confirmed the applicant's contention that A/Sergeant McTaggart had in fact issued a directive to the applicant and the three other Officers to place the offender into a cell. Further, an allegation that the applicant had attempted to use his capsicum spray on the offender was not supported by the three Officers involved in placing the offender into a cell. 4. The applicant also contended that the CCTV footage related to the complaint incident "went missing" from Windsor Police Station. The applicant subsequently made a formal complaint concerning this incident and understood NSW Police took no action. Member of the public complaint 1. On 23 March 2010 when working at Windsor Police Station, the applicant received a directive memorandum from Sergeant Barlow and Sergeant Zvargulis claiming he had told a member of the public who was standing inside the Station foyer at the time to "shut their mouth". 2. The applicant recalled that for the majority of his shift that day, he was working in the custody area dealing with offenders he had arrested for a fight that occurred earlier in the day. The applicant did not believe that he had worked in the foyer area of the Police Station on the particular day. After informing both Sergeants that he had no knowledge of the incident, the applicant alleged that Sergeant Zvargulis subsequently stated, "I saw you do it". 3. The applicant pursued his innocence and spoke to other members of the public who were in the Station foyer at the time of the alleged incident. The applicant's own investigation pointed to Constable Ryan Mitchell being the Officer who had made the offensive comment. The applicant subsequently filed a report via his chain of command outlining what had occurred. However, he heard nothing further. Proactive policing 1. The applicant stated that he was the most proactive Police Officer at Hornsby PTC and was one of the top proactive Officers at Parramatta PTC. When rostered to work with Constable Bernhardt on 22 October 2014, the applicant was unaware that the reason for this particular roster was to improve the Constable's poor proactive performance. The applicant was subsequently rostered to work with Constable Bernhardt on a regular basis. In or around March - April 2015, he was informed why he had been rostered to work with Constable Bernhardt: The reason why you are working with Warren all the time is not because the other guys don't like him, it (sic) so as you can help him to be more proactive. He has been spoken to about being the least proactive Officer who works on a full-time basis at Hornsby PTC. Speed camera activation incident 1. At approximately 8:40 pm on 22 October 2014, the applicant was patrolling a train near Berowra when he observed a woman intoxicated and drinking alcohol. After speaking to the woman and doing a check via Police radio, the applicant established that the woman was in breach of her bail conditions and had not reported to Surry Hills Police Station as required by 8.00 pm. 2. The woman was subsequently arrested and taken to Hornsby Police Station where the custody manager instructed the applicant to issue her with a warning for the breach of bail and take no further action. The applicant subsequently proceeded to transport the woman to Central Station where she would be placed in the custody of a friend. The applicant was accompanied by Constable Bernhardt. 3. It was the applicant's evidence that the incident that ultimately gave rise to his removal from NSW Police Force occurred as follows: As I was driving, I noticed a car ahead of me move into my lane as it negated 2 corners between Hornsby Street and Romsey Street at Waitara, the suburb just south of Hornsby. As I had lived in the Hornsby area for 32 years, I am aware that the above stated series of corners … (it) is common for people to veer out of their lane, just as is the case of the two corners just north of Bridge Street along Peats Ferry Road at Hornsby. When I observed this it made me pay attention to the vehicle and I noted that it had gained distance on my car as I was driving about 60km/h. [REDACTED] I activated the speed camera at the intersection of Romsey Street on the Pacific highway. I caught up to the vehicle in a short time after the camera activation and noted it was not doing a speed that was over the sign posted 60km/h so I continued on with conveying (the intoxicated woman) to Central Train Station. I eventually caught up to the vehicle and was able to identify it as a red sedan and the number plate was yellow with black writing and the first three letters on the number plate was (sic) "XCF". I did not get the rest of the number plate because I was concentrating on driving at the time. I confirmed with Constable Bernhardt that it was a red sedan with the number-plate started with "XCF" and that is what he saw as well. I spoke to him about what had happened and I informed him of what I was doing. I am aware that throughout this incident I acted reasonably in accordance to (sic) section 305 of the Road Rules and in accordance to (sic) [REDACTED]. In hindsight, after reviewing the RMS CCTV footage of this incident, I viewed that it was safe to do a speed check on the red sedan and at no time does the footage show any unsafe incident or near miss incident that could be deemed unsafe. I'm also aware that the passenger I was conveying (the intoxicated woman) has made no complaint regarding the way I conveyed her from Hornsby to City Central on 22 October 2014. I am aware that the vehicle I was driving, a Toyota Hilux dual cab was the same as a 2013 year model of the Toyota Hilux. I am aware from the passenger seat in this type of vehicle, (that) you cannot see the speedometer of the vehicle when it is doing a speed greater than 40 km/h and less than 140 km/h due to the protruding plastic mounts surrounding the speedometer (the) person sitting in the passenger seat cannot confirm the speed you are doing during a speed check. At a date soon after 25 October 2014, I became aware that the night shift on 25 October 2014 comprising Senior Constable Gary McCrum and Senior Constable Martin Egleton may have activated two speed/red light cameras while they conveyed an intoxicated person from Hornsby to Seven Hills … I was informed that one of the activations may have occurred while they were conveying the intoxicated person to their home and the other activation did occur after they had dropped off the intoxicated person and were driving back to Hornsby Police Station. I did not think this was strange or unusual as I have activated multiple speed camera(s) in a single shift and as a proactive unit, it is our job to make inquiries (sic) into things that we see occur as we see them. I have since found both Officers only had to write a report for the second camera activation that was activated and S/Constable Egleton … (wrote) his reports in an identical manner to the way I have written my report as he has stated who the vehicle of interest was, then described what happened in the incident … In his second report about the incident, S/Constable Egleton admits he has not seen the initial reason for activating the speed camera and the driver of the Police car, S/Constable McCrum is the only witness to this … In relation to the first activation done by S/Constable McCrum and S/Constable Egleton, the circumstances were identical to my situation as they were doing 11 km over the speed limit in order to close the distance to a car that was allegedly (in) breach of the road rules whilst they were conveying an intoxicated person in the car and the RMS issued a warning notice in relation to this matter … I have found out that this matter was never investigated by the PTC safe driver panel and the OIC of my investigation. S/Sergeant Holmes has viewed an entry in the Police car vehicle diary that described this incident and not taken any action in relation to this incident … On 12 November 2014, I was back on duty and noted that I have received an email from Sergeant Stuart Tylor of the City Central PTC. He was requesting me to write a report about the circumstances of activating a speed/red light camera on 22/10/2014. I thought this was odd as the number of speed and red light cameras I have activated in my 9 years as a Police Officer would number into the hundreds, but I have never been asked to write a report about activating a RMS speed or red light camera. The only people I am aware of who has (sic) written a report as to why a RMS camera has been activated was a friend of mine who activated speed camera is going in excess of 45 km/h over the speed limit [REDACTED]. I also noted Constable Bernhardt had sent me an email about the camera activation while I was off duty. When I read his email I noted he had said that the car I was following and was of interest to me came from a side street off the Pacific Highway. I was aware that he had mentioned something about this on the night I had activated the speed camera on 22/10/2014 (and as I later told Investigators in my answer to Q 71 of my interview … I have been placed in a similar situation where another Officer has gotten (sic) his version of events wrong, notably the time I was issued with a directive memorandum from Sergeant Barlow … where she falsely believed that I was the subject Officer for the directive memorandum. The persons conducting the investigation had failed to conduct proper inquiries (sic) into the matter. I conducted my own investigation into the matter and after speaking to the civilian bystanders of the incident, found out who the subject Officer was and submitted a report through the chain of command correcting their misconception. In relation to my actions after reading Sergeant Tylor's and Constable Bernhardt's email, I submitted a report via the chain of command on … 12 November 2014 (see annexed report D50) which clarified what occurred. 1. The applicant's answer to question 71 put to the applicant during his investigation interview was as follows: A: I remember he told me he first saw the vehicle near the Blue Gum Hotel and I think that he later told me that he thought it had pulled out from the Blue Gum Hotel. 1. The email dated 12 November 2014 referred to above by the applicant was annexed under report D50 to his affidavit and stated: On 13 February 2015 I was sent an email from Senior Sergeant Holmes saying that she was conducting an investigation into the activation of a red light/speed camera and that I was to attend City Central PTC on 19 February 2015 to take part in a departmental interview. On 19 February 2015, I participated in an interview at City Central PTC. Present at the interview was (sic) Chief Inspector David McBeath, Senior Sergeant Renée Holmes, myself and my support person Senior Constable Martin Egleton … I noted in the interview Q67, 117 & 118 (see annexed report of the investigator's report) are attempting to clarify my report that I handed in on the matter. Q67 is alleging the red sedan was 30 metres in front of me at the intersection while Q117/118 … (are) alleging I have identified the red sedan before the intersection. It appears that (the) operating Investigators are just guessing what my report says. I am aware that in accordance to (sic) standard procedure of the Mandatory Continuing Police Education which is mandatory training all Police have completed, it states in PowerPoint 41 and 42, "Sometimes reports end up on supervisors' desks with ill worded arguments, spelling mistakes, poor grammar, inconsistencies in layout and formatting errors, incorrect or inconsistent information an (sic) tables and/or attachments, incomplete paragraphs through cutting and pasting and chain of command omissions. So … Double check you (sic) report before sending it. Supervisors have the responsibility to make sure that the standard report meets NSWPF document standards and should work with their colleagues on any suggested improvements". I am aware that Police were attempting to clarify what my report said during the course of the interview which I found odd as my report had never been returned for correction as per Police policy. In relation to Q117/118 … I am aware that S/Constable Egleton has written reports for activating a speed camera in an identical manner (see annexed report D3) and submitted it to the same members of the CMT at City Central PTC who dealt with my investigation, yet his report had no issue with the way he wrote it. This report was even returned for more information to be added to it, and again S/Constable Egleton wrote the new report in the identical manner I have (done) and it was not an issue. I also noted that Q38 to 49 is (sic) try to clarify my report by asking me to provide more detail than what the report provides. As stated above, in accordance with the Police policy, my report should have been returned for clarification before I was interviewed. I am aware that S/Constable McCrum had his report resubmitted twice for corrections and more information before it was accepted and S/Constable Egleton had his report recently for correction (see annexed report D3). I am aware that Q110 … is asking me to clarify what rule 305, subrule (1) of the Road Rules is. I have become aware that the site I got this information from off the Police intranet, was misleading, as it did not contain the phrase "rule 305 sub rule (2)" anywhere, but it still described rule 305 sub rule (2). I am aware the Police intranet site I got this from is from the Highway Patrol Education Course and is part of the course for Highway Patrol Officers. I had no reason to believe I was misquoting rule 305 of the Road Rules. I did inform Investigators that I got information for this from the intranet. Regardless of what my report allegedly says, in accordance to (sic) Q125 of my interview, and as I later found out (from) Q 94 in Constable Bernhardt's second interview … there appeared to be an overriding presumption that there was no vehicle of interest in front of the Police car as per the above questions allege. This accusation would justify the reason why (the) Investigators never returned my report for correction as they were only interested in the part that describes the vehicle being in front of the Police car when they are alleging there is no car in front of the Police car. This accusation would justify the reason why Investigators never returned my report for correction as they were of the belief that report was a lie and the CCTV footage shows that there is "no car in front of the Police car" but the RMS CCTV footage does show a car in front of a Police car and as the RMS road data shows, it was travelling in lane 2 just like my report describes and is reaching an approximate speed of 74 km/h and is speeding as the measurements taken from Chase Burke & Harvey (see annexed report D43) and the images I have taken from the Pacific Highway show (see annexed report D55). When I returned to Hornsby PTC, I was ushered into the Sergeant's office and had a conversation with another Officer. Once inside, I was told words to the effect of "I was down at City Central PTC in the Sergeant's office with another sergeant when Sergeant Tylor first played the RMS CCTV footage you saw in your interview. When he played it, he started jumping around the room saying "There's no car there, they are both lying". Sergeant Tylor left the office and returned with Acting Superintendent Deborah-Lea Eardley. Sergeant Tylor replayed the RMS CCTV footage to A/Superintendent Eardley and she could not see vehicle in front of Police car either". I remember thinking to myself after I was told that information, "I saw the car the first time I saw the footage. How could an entire complaints management team look at that footage and not see a car? No one is that retarded!" There is clearly a vehicle in front of the Police car in the RMS footage (see annexed report of RMS CCTV footage and RMS log data in the investigator's report) and that vehicle is speeding according to the measurements I have taken of the Pacific Highway, just like I described (see annexed report of the Investigators report). I am also aware that the RMS Road data (see annexed report of the Investigators report) that I used to make the calculations to prove the car in front of the Police car is speeding was not obtained until after I was interviewed (see annexed report, paragraph 12 in the Investigators report), so there is no way the Investigators looking in to this matter could have investigated this part of my report. I am also aware that accordance to (sic) the NSW Police Force Professional's Standards Command guide on untruthfulness by subject Officers during a Part 8A investigation, it states that "where there are conflicting versions of the factual issue, it does not automatically follow that one person has been untruthful". It then goes on to say "a way of evaluating a subject Officer's statement is to examine its consistency with other evidence. A statement is more likely to be true if it accords with known facts, documentary evidence or other objective sources". I am also aware that the only legitimate way to formally identify the red sedan Constable Bernhardt and I saw was to place a form of demand on the vehicle that could have been of interest in accordance (with) section 177 of the Road Transport Act. In hindsight, with all the evidence that has been supplied to me, no form of demand was ever done and this investigation began purely upon the false assumption that there is no vehicle of interest in the RMS footage. After pondering about it, I thought the only way an investigation could have been started over the report I wrote is because registration details supplied did not match up with a red sedan as I described or a form of demand had been conducted … And the owner or driver of the red sedan had told Police that they were not in the vicinity of the Pacific Highway at Waitara at about 10.00 pm on Saturday, 22 October 2014 as my report describes. On 26 February 2015, I decided to request the RMS footage through the freedom of information section of the RMS. In my request I also asked a few questions so as I could clarify things in my own mind why I was investigated (see annexed report of the Investigators report). On 27 April 2015, I was on duty at Hornsby PTC and I was requested to attend City Central PTC with one of my supervisors, Sergeant Chapman. Constable Bernhardt and I were placed on a conduct management plan which saw Constable Bernhardt and I being forced (to) transfer to City Central. I am now aware through my conversations with the NSW Ombudsman's representatives, that the cause of the forced transfer was initial accusation that there is no car as the NSW Ombudsman had received no updates to the complaint file since it was received by them on 21 January 2015, therefore the complaint was still focused on initial accusation that there is no vehicle of interest in the RMS footage. In hindsight after looking through all the times (sic) of evidence gathered in relation to this matter, I am of the belief that I was forced (to) transfer for no legitimate reason, and the only reason why Constable Bernhardt felt compelled to conduct a second interview was due to the impropriety of conducting a forced transfer and unlawfully extending the length of this investigation for no valid reason. I am also aware that the length of time this investigation ran for in accordance to (sic) section 145 of the Police Act is unlawful as investigation was conducted in neither a timely or effective manner. Police investigating this matter failed to follow Police procedure in accordance to (sic) page 45 of the NSW Police Force Complaint Handling Guide (where) it states in bold writing, "the NSW Police Force timeframe for completing matters subject to an evidence based investigation is 90 days from the date received by the NSW Police Force". As per paragraph 7 of Sergeant Tylor's statement, this complaint was generated in the Safe Driver Panel Meeting on 9 January 2015. I am aware the Safe Driver Panel is comprised of the same people that make up the Complaints Management Team being the Inspectors and Superintendents of City Central PTC so Police would receive this complaint on the same day it was generated, so the completion date would have been 9 April 2015. I am also aware that the NSW Police Force Complaint Handling Guide states, "Approval for an extension must be sought from the CMT before the expiration of the investigation deadline. The report must include the period of extension requested, the reason for the request, a list of outstanding activities and the new proposed completion dates. Investigators should expect their reasons for extensions to be scrutinised. Where notified matters are concerned, the CMT is expected to notify the NSW Ombudsman of extensions and reasons given by Investigators". Through my dealings with the NSW Ombudsman, I am aware that no reasons for the extension were ever sent to the Ombudsman and by looking through the evidence gathered by Investigators, there was no lawful reason to extend investigation. This investigation was sustained on 5 May 2015 in accordance with paragraph 18 of A/Sup Eardley's statement (see annexed report D51) she supplied to EML in relation to the bullying and harassment accusations she did (sic) against me whilst I was under investigation. 1. The applicant contended the investigation continued "for a total of 26 days over the 90 day investigation time frame for no apparent reason". He further contended an email from Clint Hall dated 12 May 2015 and a statement from Sergeant Coxon dated 14 May 2015 "were used to sustain issues in the investigation report": These two men appear to have been only contacted after the investigation was sustained and A/Superintendent Eardley states in paragraph 18 of her statement (see annexed report D51), the matter was sustained at a CMT meeting, who meet on a fortnightly basis. This tends to suggest that the investigation continued to at least 19 May 2015. … The evidence Investigators have supplied is neither credible or accurate and I am of the opinion should not have been used in this investigation. Clinton Hall's email fails to supply any part of Part 7 of the SDP which this incident falls into. In accordance to (sic) information from Sergeant Coxon received on 12 May 2015 which tells him the car in front of the Police car has travelled 180 metres in approximately 13.82 seconds and is therefore travelling at an average speed of 47 km/h and not maintaining constant speed of 60.7 km/h like all his calculations use (see annexed show cause notice). Sergeant Tylor's email also states that after 2.82 seconds after the camera activation, the distance between the two cars is 124 metres. This is a clear indication that the two vehicles are not maintaining a constant speed. For him to state the car is maintaining a constant speed we know it is not, in a signed statement is I believe a prima facie case of perjury. I am also aware that in the Highway Patrol course, at no stage is anyone taught to assume speed. Highway Patrol Officers are only taught to measure a distance and calculate the time it took to travel that distance. From that, they are taught to estimate the speed travelled over that distance. From this, the evidence Sergeant Coxon is providing is not expert evidence as I am not of the opinion he has been taught to assume speed in any Police teachings. 1. The applicant commenced working at City Central PTC on 28 April 2015. The investigation was continuing at that time. The applicant alleged he became the subject of a bullying and harassment campaign which resulted in him making a complaint, a copy of which was annexed to his affidavit at report D55. 2. A copy of the Investigation Report was given to the applicant on 10 July 2015. He summarised the findings made in that Report on the following terms: In summary, Investigators have sustained the matter alleging the car in front of the Police car would have been too far away from me to see despite making no attempt to investigate how far I can see and that I have lied to Investigators during my interview as they allege my report describes I identified the red sedan before the camera activation despite my report being identical to S/Constable Egleton's reports (see annexed report D3). 1. The applicant was not afforded the opportunity to view the RMS CCTV footage and associated road log data prior to writing his report and being interviewed as part of the investigation into the incident. He noted that S/Constable McCrum had been afforded such an opportunity during an earlier investigation into his speed camera activation. In that regard, the applicant observed: The 10 seconds I stated in the investigation is only an estimation. The incident that occurred 4 months before and during this time I have been working full policing duties and have attended hundreds of incidents and spoken to thousands of people. I did not make any time estimation in my report as I could not remember it at the time I wrote the report. If I had been given the opportunity to view images or footage of this incident before I had written my report or the interview as has occurred ... (with) S/Constable McCrum … I would have been able to have given a more accurate account of this incident. The only way you can accurately get a time of the incident is to know the distance both vehicles travelled and the exact speed they were travelling. Both these things are not known and have not been clarified by the investigation because (the) Investigators have chosen not to gather CCTV footage from other businesses after the intersection that was available to them at the beginning of the investigation. 1. The Investigators dismissed the applicant's contention that he did catch up to the red sedan after camera activation and had partially read its number-plate. Sergeant Coxon's estimation was clearly incorrect and there is nothing within the investigation report that establishes how fast the Police vehicle or red sedan was travelling after the RMS CCTV footage finished. It is not apparent that the Investigators sought to contact the owner of the red sedan. 2. The applicant's defence in response to the four allegations sustained in the investigation were set out over 27 pages of his affidavit: Allegation 1 * [REDACTED] * RMS CCTV footage and Sergeant Tylor's email dated 29 April 2015 prove Sergeant Coxon's estimate of 185.4 metres is incorrect; * The red sedan was not maintaining a constant speed and was gaining distance from the Police vehicle as it passed through the intersection. No evidence has been presented to refute his account of what the red sedan was doing before the intersection; * Sergeant Coxon estimated that the red vehicle was 185.4 metres in front of the Police vehicle at the time of camera activation effectively means the Police vehicle has gained 50 metres on the red sedan in 2.82 seconds or was gaining 17.73 m/s for the first 2.82 seconds after activation. * On Sergeant Coxon's analysis, the applicant estimated the Police vehicle would have been travelling 63.8 km/h faster than the red sedan, if the red sedan was maintaining a constant speed of 60.7km/h. Put alternatively, the Police vehicle would have been travelling at an average speed of 136.6 km/h. Clearly it was not; * The RMS road log data shows the Police vehicle travelling at 72.8 km/h and the red vehicle did not maintain a constant speed; * In the event the red sedan did maintain a constant speed of 60.7 km/h, it would have travelled 101 metres after six seconds. In such circumstances, the red sedan would have been in line with the 9th chevron painted line on Pacific Highway and would have been fully visible in the CCTV footage which of course, is clearly not the case; * There is nothing in the investigation brief that refutes his contention that "I was at a distance behind the red sedan where I could see it cross the lane markings on the Pacific Highway before the camera is activated". Nor is there any evidence that states the speed of either vehicle prior to camera activation; * Given the prevailing conditions of a clear sky and no other traffic, it was relatively easy to spot the vehicle moving out of its lane because the red sedan's head and tail lights had illuminated the white lane markings and cat eyes. In that regard, the applicant stated that he was able to see a vehicle move out of its lane at a distance of 260 metres. The applicant referred to medical reports attached to his affidavit material that suggested his eyesight was better than 20/20 vision; * The conclusion reached that Constable Bernhardt's statement that he did not notice the red sedan prior to the camera activation is not an admission that there was no red sedan. Constable Bernhardt stated during the course of an interview on 4 May 2015 that he did notice the red sedan – but only after the speed camera had been activated as immediately prior to activation he was looking out the side window and towards the rear of the vehicle observing the intoxicated passenger rather than paying any attention to what was ahead. In fact, Constable Bernhardt later witnessed seeing the red sedan south of Romsey Street and wrote down half of its registration number plate without any prompting; * In 9 years of policing, the applicant was unaware of any circumstances where a Police Officer had conducted a speed check with lights and sirens on; * The CCTV footage records the red sedan travelled 112 metres in six seconds after camera activation at 60.6 km/h. The CCTV footage shows the reflection of the red sedan's tail lights on the road paint. At six seconds, the red sedan has increased its speed to 73.8 km/h which would clearly make it a vehicle of interest having exceeded the speed limit of 60 km/h; * The CCTV footage depicts the traffic conditions which show that it was safe to conduct a speed check; * Following the incident, the applicant contacted Volkswagen, Mercedes Benz, Toyota and Beacon Lighting at Waitara who advised him "that they had available footage that looks onto the Pacific Highway". The Investigators did not seek to procure this video footage; * Police regularly activate fixed and mobile speed cameras in the course of their duties and the need to travel at speeds faster than the posted speed limit is not a deterrent for Police to investigate or uphold the law; and * • The report made by S/Constable McCrum dated 4 March 2015 fully explains why he activated a speed camera doing 86 km/h in a 70 km/h zone on 25 October 2014 when conducting a speed check without displaying lights or sirens. No action was taken against S/Constable McCrum. Allegation 2 1. It was the applicant's evidence that because he had better than 20/20 vision, he had no problems in identifying a vehicle moving out of its lane at a distance of 260 metres. In support of that proposition, the applicant referred to his Police Force Health Assessments records dated from June 2009 to July 2010 and 8 August 2012 annexed to his affidavit at D 39. The applicant contended that it was open to the Commissioner through the Investigators to give consideration to the strength of his eyesight. 2. In relation to Allegation 2, the applicant made the following observations: * The Investigators cannot make a determination of what the red sedan did up to 360 metres before the intersection by observing the RMS road log data which was taken at the intersection; and * There was video evidence available from surrounding businesses which would have shown what the Police vehicle and the red sedan did before and after the intersection. 1. The applicant denied that he had been untruthful by dishonestly outlining a set of circumstances in his initial report to Sergeant Tylor on 12 November 2014. He contended the circumstances in which the red sedan had been driven prior to the intersection of Pacific Highway and Romsey Street was correct and the Investigators had failed to speak to the owner of the red sedan or obtain CCTV footage from the motor vehicle dealerships nearby. 2. It was the applicant's evidence that the allegation that he was able to read the red sedan's registration before the intersection was clarified to the Investigators when he answered Q67 and Q118. Moreover, the allegation that his report stated that he obtained the partial registration of the red sedan prior to passing through the intersection of the Pacific Highway and Romsey Street was false and he had "specifically pointed this out to Investigators during my interview in his answer to Q118": I obtained the partial registration of the red sedan prior to passing through the intersection of the Pacific Highway and Romsey Street 1. The applicant contended that the method he used in writing his report was consistent with that used by other Police Officers including S/Constable Egleton without issue. 2. The applicant contended that the Investigators had misconstrued his report. In that regard, paragraphs 2 and 3 of his report clearly stated the following: … but from the time I first saw the red sedan it was gaining distance on my vehicle. I sped up so I could carry out my intentions of getting close enough to the red sedan so as I could read its number-plate and possibly start a speed check on the red sedan's average speed before pulling the driver over to talk to them about their driving and test their sobriety. Before I had the opportunity to get close to the red sedan I activated the red camera at the intersection of the Pacific Highway and Romsey Street. The only time in my report that I have put what happened as it occurred on the evening of 22/10/2014 is in the second and third paragraph, after I introduced the vehicle of interest in the first paragraph. The second and third paragraph is the only time I have used the words first and before. The only way you could assume what Investigators are alleging in this paragraph is if you only read the first paragraph of the comment section of my report and ignored the rest of the report. The whole report describes incident, not just the first paragraph of the comment section (which is only and (sic) introduction). My answers to Q 37, 38, 40, 48, 49, 50, 53, 65, 67, 117, 118 and 121 in my interview clarify this and the RMS Road data and footage shows this. As a point of interest, I clarified this to the interviewers before watching the RMS footage in the interview and the RMS footage shows that this is what occurred. My answer to Q 49, 67 and 118 specifically clarifies the point of where the Police car was on the Pacific Highway when I was 30 to 40 metres behind the red sedan. 1. The applicant contended the following reference in his report: From the distance I observed the car from (approximately 30 metres), I got the first 3 letters of the number-plate only was a reference to the distance he was behind the red sedan when he partially read its registration plate. It was not a reference to the distance between the Police vehicle and the red sedan when he first saw the red vehicle on the Pacific Highway. This difference was put to the Investigators in his answers to Q 49, 60 and 118. Moreover, the applicant stated the only reference in his report that describes where he first saw the red sedan was set out "midway through the second paragraph". There was no reference "where the Police vehicle is on the Pacific Highway in that sense". 1. The applicant referred to his Police notebook entry which accompanied his report to Sergeant Tylor on 12 November 2014. That entry does not state that he had caught up with the red sedan and was already conducting a speed check when the camera was activated. Rather, the entry stated: About 22:30 I was trying to catch up to a red sedan … 1. The applicant contended that the Investigators had failed to consider his responses to Q 84 to 91. 2. The applicant stated that the Investigators could have sought clarification about various aspects of his initial report. Moreover, if the document was not clear to them or contained poorly worded or incomplete paragraphs, any of the three supervisors who initially received the report or any member of the SDP or CMT could have referred the report back to him for re-drafting or clarification, which was consistent with the policy set out in the NSW Police mandatory report writing training package. The applicant referred to the fact that a recent report he had submitted to Inspector Watson had been returned to him for correction 3. The applicant noted that S/Constable McCrum had been asked to amend his speed camera activation report three times after initially submitting it. S/Constable McCrum had activated the speed camera three days after the applicant's incident and was only issued with an infringement. No further action was taken against him. 4. The applicant stated that he was aware that the RMS CCTV footage concerning the incident had been sent to C/Insp McBeath before the SDP and CMT had met. The applicant believed his report would have been discussed at these meetings but at no stage was it suggested that his report should be returned for correction or clarification. 5. It was the applicant's evidence that the RMS footage and his answers to Q 125 and 126 clearly depicts the red sedan about 80 metres past the intersection at the beginning of the footage: The red sedan is obscured from the camera due to the awning blocking the camera. At the 8 second mark of the footage the red sedan is seen again. Given the distance viewed on the RMS footage between the Police car and the red sedan, it supports the Police car and red sedan car speeds collected by road data and my version of events in my report where I initially observed the red sedan committing traffic offences and saw the red sedan gaining distance on the Police vehicle before the intersection, then I sped up to catch up to the red sedan, so the speed I was doing at the intersection was the speed I was doing in order to catch up the red sedan after I noticed it was gaining distance on me, as I stated in my report. 1. The Investigators have not been able to draw upon any evidence to refute the claim that he saw the red sedan cross the lane boundaries on the Pacific Highway prior to the intersection of Romsey Street. 2. Moreover, it was not possible to determine with any accuracy the estimated speed of the two vehicles or the distance between them prior to the intersection. Despite the RMS road data suggesting that the red sedan did not maintain a constant speed, the Investigators saw fit to ignore that particular evidence. 3. The applicant deposed Sergeant Tylor had adopted the flawed calculations of Sergeant Coxon. The applicant repeated his earlier evidence that surveyors had measured the distance between the two vehicles at 131.35 metres and not 124.2 metres (less than three seconds post camera activation) as adopted by Sergeant Coxon and Sergeant Tylor. In that regard, the applicant contended: … taking my measurement, if the red sedan was 185 metres in front of the Police car at the time the camera was activated, then the Police car has gained 50 metres on the red sedan in 2.82 seconds after the camera activation. For the Police car to be doing this, it would have been travelling 63.8 km/h faster than the red sedan's speed if the red sedan was maintaining constant speed of 60.7 km/h. The police car would have to be travelling at an average speed of 136.6 km/h. This is grossly incorrect as the RMS road data show(s) the Police vehicle to be travelling at 72.8 km/h. This also shows the red sedan was not maintaining a constant speed throughout this incident. 1. The applicant contended that Sergeant Coxon's estimate, adopted by the Investigators, that 10 seconds after activation the distance between the two vehicles "would have been 151 metres is grossly incorrect" because the measured distance post three seconds is 131.35 metres as calculated by surveyors Chase Burke Harvey and set out in annexure D 43. 2. The applicant maintained he was not aware of the precise speed he was doing prior to camera activation but it was not a constant speed. In support of that proposition, the applicant referred to Q 35 of his interview where he said, "I was driving to catch up to a car …." Moreover, the applicant sought to rely upon paragraph 2 of the "comment section" of his report which states the red sedan "… was gaining distance on my vehicle" before the intersection. The applicant also sought to rely upon Constable Bernhardt's answers to Q 51 and Q 90 put to him during his interviews on 13 February and 4 May 2015. In that regard, the applicant made the following observation: Constable Bernhardt … has pointed out that the vehicle has turned left in traffic which means the red sedan would have to slow down after the intersection to make the turn. Allegation 3 1. The applicant stated this allegation was sustained on incorrect grounds. The Investigators determined that the RMS CCTV footage did not show a vehicle in front of the Police vehicle on the night of the incident, whereas the CCTV footage and road log data "prove that there is a car in front of the Police vehicle and it is where I have stated the red sedan is on the Pacific Highway". 2. It was incorrect for Investigators to dismiss his eyewitness account of the incident and determine that he had "falsified an official record by creating a notebook entry about a traffic offence involving XCF ***. In that regard, the applicant noted that the only question that he was asked in the course of his interview that specifically related to his notebook entry was Q 86 and whether he had spoken to Constable Bernhardt "about writing my notebook entry". 3. The applicant contended that the red sedan could be identified as the vehicle in front of the Police vehicle in the first second of the footage and again at the 8 to 10 second mark following camera activation. There were no other vehicles between the red sedan and the Police vehicle. 4. In his report to Sergeant Tylor, the applicant stated that he had mentioned one vehicle of interest was in front of the Police vehicle. He was at a loss as to why the Investigators had alleged the RMS CCTV footage "does not show a vehicle in front of PTC 115". It was clear that the RMS CCTV footage was proof that there were two vehicles and on the applicant's surveyors' calculations, those vehicles were 131.35 metres apart 2.82 seconds after camera activation. 5. Sergeant Tylor's reliance on the calculations made by Sergeant Coxon that the red sedan was 185.4 metres ahead of the Police vehicle according to the RMS CCTV footage would effectively require: … the Police vehicle to have made up 50 metres in less than 3 seconds (which) is a physical impossibility. 1. The applicant contended that his notebook entry was an entry to remind him "why I activated the camera". That entry was consistent with the RMS CCTV footage that he later viewed. Moreover, the "start" of the RMS CCTV footage shows there is a gap of more than 30 metres between the two vehicles: There is nothing in this brief to refute the fact that I was at a distance from the red sedan before the intersection and before it gained distance on the Police vehicle (as stated in my report) that enabled me to observe the red sedan commit traffic offences. Sergeant Coxon's statement and no other evidence in this brief states or estimates how fast the two vehicles were going or what distance was between them before the intersection, and the use of 185.4 metres is wrong. The two vehicles were not maintaining a constant speed as stated in point(s) 11 and 12 of the brief, as the answer to Q 90 in Constable Bernhardt's interview on 13/02/2015 and his answer to Q 51 in his interview on the 04/05/2015 and the RMS road data and footage point this out. My measured distance puts the maximum gap between the two vehicles at 131.35 metres and this is not a distance I have any issues with observing … the car on the road in front of me. There is nothing in this brief to refute or even contest my eyewitness account of what took place before the intersection … 1. It was the applicant's evidence that he considered the Investigators were attempting to use the incorrect evidence of Sergeant Coxon to suggest that the red sedan "would have been too far away for me to see it". Further, the applicant stated that his notebook entry did not contain any measurements and accordingly he failed "to see how asserting any measurement proves my notebook is a lie …" 2. The applicant contended that the luminescent cat eyes and road lane markings would have helped him to see when the red sedan crossed into lane 1. 3. The applicant referred to his answers to Q 35 and 69 of his interview and Constable Bernhardt's response to Q 31 of his interview on 4 May 2015 in support of the proposition that "I accelerated after the red sedan", which is consistent with his notebook entry where he described that he was "… trying to catch up to a red sedan …". 4. The applicant stated that in his nine years of policing, he had never put "every single thing that occurred at an incident into my notebook": … you could quite literally fill a notebook on every job you attend if it was a requirement to record every single detail you observed. Allegation 4 1. The applicant contended that the RMS CCTV footage showed that he had driven the Police vehicle in a safe manner. The intoxicated passenger was never in danger. The Investigators did not interview the passenger who, in any event, had not made any complaint. The applicant also noted that when travelling to Central Train Station, he travelled along the Gore Hill Expressway at 80 km/h which is faster than his Pacific Highway camera activation speed of 72 km/h. 2. The applicant repeated his contention that Clinton Hall did not refer to or attach Part 7 of the Safe Driver Policy which is relevant to the incident. The investigators report failed to acknowledge that he was conducting a speed check. 3. Moreover, there is no written NSW Police policy that prevents a Police Officer from undertaking an investigation in the form of a speed check while conveying a prisoner. Nor is there any written prohibition preventing Police Officers from conducting a speed check or investigating another traffic related matter in circumstances that could be described as routine rather than "urgent duties" requiring a "pursuit". [REDACTED] 4. [REDACTED] 5. The applicant contended that it was common knowledge amongst Police Officers that conducting traffic stops or speed checks was considered a routine or code blue response. In that regard, the applicant stated both S/Constable McCrum and S/Constable Egleton had conducted a speed check while conveying an intoxicated person in a Police vehicle on 25 October 2014 (as annexed in report D 38) without issue. 6. Both S/Constable McCrum and S/Constable Egleton had activated a speed camera doing 86 km/h in a 70 km/h zone whilst undertaking a speed check without displaying lights or sirens. 7. Against that backdrop, the applicant asserted the [REDACTED]. In addition, the applicant stated that s 305 of the Road Rules allowed all Police Officers to breach those rules in specified circumstances. 8. [REDACTED] 9. The incident did not require an Urgent duty response. It did not involve a life-threatening situation. The applicant subsequently referred to a course known as "Six Minute Intensive Training" and entitled "Coded System of Driving". All Police Officers receive training in this course as part of their continuous training. The course defines a "code red" as a life-threatening situation. 10. The applicant denied the allegation that he had exceeded the speed limit without any reasonable and/or lawful justification. In that regard he relied heavily on his report and investigation interview where he had said words to the effect of: I was conducting a speed check on the red sedan and closing the distance between the offending vehicle. 1. The applicant referred to the RMS CCTV footage and road log data which showed the red sedan was doing more than the posted speed limit of 60 km/h. 2. It was the applicant's evidence that at no time did he deviate from his intended trip to Central Train Station in order to follow the red sedan after he had identified that vehicle. Nor did he attempt to follow the red sedan "for an unnecessary length of time". 3. [REDACTED] 4. [REDACTED] 5. [REDACTED] 6. [REDACTED] 7. The applicant denied the allegation that his eyewitness account that he saw the red sedan before the intersection of Romsey Street and the Pacific Highway was a "fabrication to avoid departmental action …". Given the RMS CCTV footage, the applicant contended the red sedan was "speeding up to a speed of 73.8 km/h" and accordingly, he was within his rights as a Police Officer to investigate the speed of the red sedan. 8. The applicant noted that the Investigators in their report had stated: [REDACTED] 1. The applicant contended that Investigators had attempted to alter "what it is they were investigating" from "there is no vehicle of interest" as stated in paragraph 6 of Sergeant Tylor's statement, Q 125 of his own interview and Q 94 of Constable Bernhardt's first interview to "the vehicle of interest was too far away to see" and "my report does not match the CCTV footage". Moreover, the Investigators appear to have based their findings upon parts of my report that were never queried during the investigation interview. 2. The applicant considered the Investigators' basis for the accusation of lying put against him was their belief that "… there not being a red sedan in the scenario …", that is, the allegation that there was no vehicle of interest in the RMS CCTV footage. 3. The Investigators had only identified that there was a car in front of the Police vehicle after they had viewed the RMS video footage and road data. 4. The applicant also contended that the Investigators had failed to notice the red sedan driving on that part of the road which was blocked by an awning "during first second" of the CCTV footage. In any event, any speeding vehicle "would be a vehicle of interest to any proactive Police Officer". 5. The applicant's reply evidence dealt with the affidavits filed by Constable Bernhardt and Detective Superintendent Devaney. The applicant also briefly outlined his personal circumstances. Bernhardt affidavit 1. The applicant denied the observation that he was reluctant to take an intoxicated person to Central Railway Station and noted there was ample time to make the return trip prior to end of shift. 2. Constable Bernhardt's statement at paragraph 11 of his affidavit that the applicant had braked and subsequently accelerated suddenly soon after camera activation is consistent with the RMS CCTV footage and the applicant's evidence. However, he denied stating words to the effect of, "fuck, Bernie, I think that was a camera!" but thought he might have said, "what was that?" 3. The applicant noted the position where Constable Bernhardt had placed an "X" on a Google map depicting where he first observed the red sedan two seconds after the Police vehicle had activated the camera near the intersection was "just before the bend" at the intersection of the Pacific Highway and Carden Avenue. 4. In relation to Constable Bernhardt's statement in paragraph 17, the applicant denied that he was in "pursuit" of the red sedan at any stage. Contrary to Constable Bernhardt's evidence, the applicant stated that he was able to make accurate observations of the red sedan from the distances involved in the incident. 5. In relation to Constable Bernhardt's reference to a NSWPF standard procedure which "requires Police Officers to prioritise the transportation of the intoxicated person in the rear of our Police vehicles" and not perform any other duties unless there is a medical emergency, the applicant stated he was unaware of the existence of such procedure. Moreover, in relation to the investigation and the service of the s 181D notice, the applicant stated: … I have never seen standard operating procedures to that effect contained within the supporting documents, or anywhere else. 1. In paragraph 19, Constable Bernhardt stated: … had Mr Platts observed the driver of the red sedan committing an offence, the appropriate course of action would have been to notify me as the passenger. I would have then broadcast that information on the Police radio so that other Police Officers could attend the location and intercept the vehicle while Mr Platts and I continued to transport the intoxicated person. At no stage did Mr Platts say anything to me at all about the red sedan. He accelerated to catch up with it after the safety camera was activated and then let the vehicle continue its journey after he got close enough for me to start recording the registration number. 1. With reference to paragraph 21, the applicant recalled that Constable Bernhardt had stated during the remaining journey to Central Station, words to the effect of "I will say the car swerved from the side" and, "… that the car came from the Blue Gum Hotel". The applicant also recalled providing this information in his answer to Q 71 of the investigation interview. He also recalled a discussion with Constable Bernhardt concerning those statements which he dealt with in his answers in Q 61 and 74 of the investigation interview. 2. The applicant agreed with Constable Bernhardt that his notebook entry: PTC115 driven by Platts. We observed red veh rego XCF to cut across in front of our lane near Blue Gum Hotel Hornsby, possible camera activated. 1. was incorrect, a view that he had consistently maintained throughout the investigation. The applicant was resolute that he did not ask Constable Bernhardt to make the false entry in his notebook. On the contrary, he considered that he had a lawful excuse for breaking the speed limit. 2. It was the applicant's evidence that he was not on duty when Constable Bernhardt submitted his version of events to Sergeant Tylor on 9 November 2014. Moreover, it was also the applicant's evidence that he only became aware of Constable Bernhardt's entry when he read Constable Bernhardt's email dated 12 November 2014, which was prior to him completing his report for Sergeant Tylor. 3. It was the applicant's recollection that shortly prior to camera activation when he was observing a distant vehicle, Constable Bernhardt was looking to his left at the shops and also turning around to check on the intoxicated person. 4. In relation to Constable Bernhardt's decision to approach A/Superintendent Eardley to correct his account of the incident, the applicant denied that a conversation took place on or around 29 April 2015, when after Constable Bernhardt had shown him his incorrect notebook entry, there was an agreement to meet in the locker room at 6.00 pm. The applicant stated that he was unaware at that point in time that Constable Bernhardt had been untruthful in his investigation interview or there was an aspect that required correction. 5. The applicant stated he recalled an approach made by Constable Bernhardt but told him they could not speak because a direction had been given to them not to speak to each other about the matter. The applicant did, however, recall telling Constable Bernhardt that he should get legal advice from the Police Association before approaching A/Superintendent Eardley. He denied that he sought "to talk him out of going to see Superintendent Eardley". 6. [REDACTED] 7. In paragraph 54 of his affidavit, Constable Bernhardt stated: ... (the applicant) never informed me that the red sedan had been speeding or that he was going to conduct a speed check, which is what I would have expected him to do had he observed the red sedan to be driving illegally. Instead, he said nothing to me at all about the red sedan. Mr Platts never followed the car while maintaining a constant distance, contrary to his description of conducting speed checks. As noted above, as soon as we caught up with the red sedan, Mr Platts reduced his distance from it. 1. In relation to paragraph 54, the applicant recalled speaking to Constable Bernhardt about the incident after it occurred. The applicant maintained that when he was sufficiently close to the red sedan to commence a speed check, it was obvious to him that the driver was no longer speeding. Accordingly, he did not commence a speed check and slowed down. Contrary to Constable Bernhardt's recollection that the vehicle turned off the Pacific Highway, the applicant recalled the red vehicle "continued along the highway". 2. The applicant was adamant that the only advice that he gave to Constable Bernhardt was to contact the Police Association. He was unaware what Constable Bernhardt had said during his first interview and was adamant that he never assisted or encouraged him to maintain any deception concerning the incident. Devaney affidavit 1. The applicant contended Detective Superintendent Devaney's opinion concerning his conduct was based solely on what was contained in the s 181D order and the Statement of Reasons. The applicant further contended that in his opinion: … It does not appear that he has read the supporting documents, or my affidavit, sworn on 28 December 2016, including attachments to that affidavit. 1. In paragraph 19 of his affidavit, Detective Superintendent Devaney stated that while he had "sporadic interactions as his Commander" at the PTC for a 10 month period, he was not "particularly familiar" with the applicant and observed, "I had very limited interaction with him". In his defence, the applicant stated that he had achieved a number of accolades when working under Detective Superintendent Devaney's command: … I achieved excellent work performance reviews through my productivity and good comments from my supervisors for being proactive, during that period of my service. 1. The applicant subsequently referred to 12 favourable reviews and/or comments concerning his work performance set out in attachment D16 to his primary affidavit. 2. With reference to paragraph 26 of Detective Superintendent Devaney's affidavit where he found that the applicant had no legitimate excuse or reason for speeding, the applicant maintained he had a lawful excuse for exceeding the speed limit because he was attempting to catch up to the red sedan to identify it and perform a speed check. 3. The applicant took particular issue with paragraph 31 of Detective Superintendent Devaney's affidavit: However, Constable Bernhardt later revealed that the versions of events that both he and Mr Platts had provided to investigating Police were false. In particular, Constable Bernhardt came forward with a truthful version of events, indicating that Mr Platts only showed interest in the red sedan that was a significant distance ahead of the Police vehicle at the point where the Police vehicle passed through the Pacific Highway and Romsey Street intersection, after Mr Platts had triggered the safety camera. 1. The applicant contended that he did not know what Constable Bernhardt had written in his notebook or had told Sergeant Tylor concerning the incident until he returned to work on 12 November 2014 and found Constable Bernhardt's email with his notebook entry attached. 2. In paragraph 33 of his affidavit, Detective Superintendent Devaney states in part: … Mr Platts's suggestion in his Police notebook that he saw the red sedan crossing into his lane is clearly false. The evidence shows the red sedan was too far ahead of the Police vehicle for Mr Platts's to have observed this clearly. Even if Mr Platts did make such an observation, or had reasonable grounds to suspect the red sedan had crossed into his lane illegally (for example, without indicating or in a dangerous manner) [REDACTED]. 1. The applicant contended that Detective Superintendent Devaney had formed his opinion that the red sedan was too far ahead of the Police vehicle for him to have observed it crossing from lane 1, simply from what is contained in a Statement of Reasons without consideration of the evidence, that shows "how the estimates of any distances were arrived at". The applicant made the point that during the course of the investigation, he was not questioned concerning his eyesight or offered a test to establish "whether I could have made observations of the red sedan over the distance involved". 2. [REDACTED] The applicant believed there was "nothing pressing or demanding prompt action" at the time of the incident. Rather, the applicant contended he was simply attempting to carry out a speed check on another vehicle. Similarly, the applicant also contended that the definition of "Pursuit" contained in Part 10 supported his statements that he did not engage in a pursuit of the red sedan at any time. 3. [REDACTED] 4. It was the applicant's evidence that contrary to a finding made by Detective Superintendent Devaney, he had never asserted that he was engaged at any time in "pursuit" of the red sedan and at no stage of the incident did he engage in a pursuit. 5. In his defence, the applicant restated his recollection that when he spoke to Constable Bernhardt after the incident, he advised him to seek advice from the Police Association. The applicant also repeated his recollection that he did not know what Constable Bernhardt had said in his interview or what he had outlined in his email to Sergeant Tylor. It follows that initially, he was unaware that Constable Bernhardt had been untruthful in his first interview. 6. In paragraph 42 of his affidavit, Detective Superintendent Devaney deposed in part: Whilst Mr Platts cites the relevant legislation and policy, it is apparent that Mr Platts had no lawful or reasonable excuse to be speeding at the time of activating the safety camera, as he only demonstrated interest in the red sedan after the activation, with a view to retrospectively manufacturing such a lawful excuse. 1. In response, the applicant contended that he had a lawful reason to exceed the speed limit because he was attempting to conduct a speed check on the red sedan and was trying to catch up to it. The applicant referred to the RMS CCTV footage and road log data together with his surveyor's measurements and certain images set out in attachment D 55 to his affidavit to demonstrate that the red sedan was, at the point of camera activation, speeding in lane 2 and was also in front of the Police vehicle. 2. Detective Superintendent Devaney has simply relied entirely upon the version of events set out in the Statement of Reasons. 3. The Investigators made no attempt to obtain the CCTV footage from a number of premises situated near the intersection of Romsey Street and the Pacific Highway. 4. In paragraph 44 of his affidavit, Detective Superintendent Devaney accepted the proposition that Police Officers may from time to time discuss incidents with one another. He distinguished that type of conversation from one where two Police Officers enter consistent, but untruthful, accounts of events with a view to concealing their own failures and misconduct. Detective Superintendent Devaney continued: From my review of removal order and Statement of Reasons this type of behaviour is the misconduct that Mr Platts engaged in, and it is indicative of his lack of integrity. 1. The applicant denied that he and Constable Bernhardt entered into consistent but untruthful accounts of this incident: Constable Bernhardt swears that he never discussed the matter with me after the night, although I do recall speaking to him about the emails he sent to me on 9 November 2014 (see Qs 99 and 100 of my interview). Further, any comparison of the version given by Constable Bernhardt in his notebook and his email to Sergeant Tylor, to the versions provided by me in my report and my interview, clearly demonstrates that our respective versions are inconsistent. I say that I told the truth in both my report to Sergeant Tylor and in my interview. I point out that my version is consistent with the RMS log data and the CCTV footage, which I had not seen prior to my interview. Coxon affidavit 1. As noted below, the affidavit filed by Sergeant Coxon was not read. 2. In paragraph 10 of his affidavit, Sergeant Coxon states he had reviewed the applicant's affidavit material and the RMS CCTV footage and road log data prior to preparing his affidavit. The applicant noted that when Sergeant Coxon prepared his calculations, he had assumed that both the red sedan and the Police vehicle "maintained a constant speed throughout the incident". 3. Sergeant Coxon contended in paragraph 13 of his affidavit: In the RMS footage, at around seven seconds after the footage commences, the Police Vehicle can be observed braking after triggering the camera, which can be seen from the activation of the Police Vehicle's brake lights. Based on this observation, the distance between the First Vehicle and Police Vehicle … would have increased immediately after the Police Vehicle crosses the Romsey Street intersection, assuming the First Vehicle maintains the same speed while the Police Vehicle brakes. 1. The applicant stated it appears that Sergeant Coxon did not review Constable Bernhardt's affidavit or his second investigation interview. In that regard, the applicant referred to Constable Bernhardt's investigation interview dated 4 May 2015 where he makes several references to the Police vehicle accelerating after camera activation including the fact that he felt the Police vehicle accelerate "hard". 2. Moreover at paragraph 11 of his affidavit, Constable Bernhardt states that soon after camera activation he felt the applicant apply the brakes and then accelerate suddenly. Against that backdrop, it was the applicant's evidence that he did not maintain a constant speed and the Police vehicle was accelerating to catch up to the red sedan. 3. The RMS CCTV footage shows the red sedan ahead of the Police vehicle after it passed through the intersection and activated the camera. The red sedan is not immediately visible because an awning has obstructed the view of the camera. However, the vehicle's tail lights show that the driver was applying the brakes and therefore the red sedan reduced speed and was not maintaining a constant speed over the relevant distance. Personal circumstances 1. The applicant deposed he was 40 years of age, single and lived by himself in a house that was subject to a mortgage. He had plans to marry his girlfriend and start a family. However, those plans have been put on hold. Prior to joining the Police Force in 2007, he was a furniture maker. He pursued a career in policing because he "thought I might be able to make a contribution to the community through my work". At the time of hearing, he had earned $7140 from casual labouring work. However, he was unable to continue that casual work "because of the time I needed to prepare for these proceedings, including attending conferences with legal representatives and the like". 2. The applicant was cross-examined over two and a half days. At the outset, he confirmed that he had been given six opportunities to recount his recollection of events concerning the incident that occurred on 22 October 2014. * He made a short notebook entry prior to the completion of the shift; * At Sergeant Tylor's request he prepared a response dated 12 November 2014; * He participated in an interview with Senior Sergeant Holmes on 19 February 2015; * Responded to a show cause notice dated 27 May 2016; * Filed his affidavit in chief on 30 January 2017; and * Filed his reply to the evidence of the Commissioner of Police on 27 March 2017. 1. The applicant identified a number of landmarks and commercial premises set out in approximately 60 photos from Google maps along the Pacific Highway route undertaken from Hornsby Police Station to Central Station on the night of the incident. 2. In relation to a number of measurements set out within the Google map material, including for example map 60 which states "the distance between James Lane to Romsey Street is … 150.72 metres", the applicant was unable to accept those measurements as being accurate: I don't accept this type of evidence as being credible … I do not accept it as being accurate because no one has gone out and actually measured it … So I'm not going to try and guess it. 1. The applicant stated that he could not accept the measurements set out in Google map 61 showing a distance of 178.48 metres between Romsey Street and Waitara Avenue on the Pacific Highway, particularly in circumstances where there was a "kink in the road": I got a surveyor to measure this and he's come up with a completely different measurement. 1. The applicant was asked a number of questions concerning measured distances on Google map 63. The following exchange ensued: Q: I want to put to you, this is based on the Google Maps measurements, that based on your experience and understanding, the distance between McDonald's Waitara to Romsey Street is about 220 metres? A: No. Q: Is that based on contrary measurements that you've got, or you just don't accept that as a rough estimate because you don't know? A: I don't accept that as a rough estimate. You're trying to measure two curves with straight lines. Don't get me wrong … You haven't provided survey measurements of these … Q: Stop there, Mr Platts I'm asking you to accept it. You can either except it or not accept it. A: … Yes. 1. The applicant was asked a number of questions in relation to various measured distances shown on the survey map prepared by his surveyor. The applicant agreed with the proposition that he was relying on the surveyors' map to support his case. 2. The applicant confirmed that the first time he saw the RMS CCTV footage was when he was interviewed on 19 February 2015. He was subsequently referred to the Safe Driving Policy (November 2009) and agreed that he had received training with respect to the Policy which applies to all NSW Police Officers. 3. It was the applicant's evidence that he had received no additional training concerning the Policy or variations to it since his initial training. He suggested that he only became aware of Policy changes by word-of-mouth. 4. [REDACTED] 5. [REDACTED] 6. In relation to traffic stops, the following exchange ensued: Q: So, is it your evidence that the traffic stops part of the policy do not apply to you on the night in question? A: Not entirely, no. Q: So you hadn't formed a view yet as to whether or not you would conduct a traffic stop or not, but that was one of the options which was available to you on the night in question, that's right? A: Simply conducting a traffic stop was not the intention of what I was doing that evening. My only intention was to catch up to the car, to measure its speed, and then from that, take it to the next step. It was not my intention to purely catch up to the car to stop it. Q: So, are you saying here, just so I understand it, just read the paragraph under traffic stops; you're saying you weren't seeking to engage in a traffic stop at that time because you hadn't determined that yet, but you are seeking to reduce the distance to the offending vehicle? A: That's correct. Q: That's correct. So you're seeking to fall within the second part of the sentence there, reducing the distance to an offending vehicle without informing VKG of a response code or activating warning devices, that's right? A: That's correct. 1. The applicant stated he was exercising the discretion available to him to close the distance between the Police vehicle and the then vehicle of interest and in the exercise of that discretion, he considered matters such as the road conditions, time of day and any danger to other road users. 2. The applicant viewed the RMS CCTV footage and confirmed that after the camera flashed he remembered talking to Constable Bernhardt about the incident shortly thereafter but had little or no recollection of the exact words of the conversation. 3. The applicant confirmed it was not uncommon for Police Officers to activate red light and speed cameras. With reference to his Police notebook entries generally, the applicant stated: The only thing I've been taught about my notebook is to simply record anything I deem relevant in it … Anything within my policing duty …. 1. The applicant recalled that he made the following entry in his notebook following his return to Hornsby on the night of the incident: About 22.30 I was trying to catch up to red sedan partial rego XCF ***for crossing into my lane 1 on Pacific Highway, just north of the Blue Gum Hotel. Trying to catch up to him so I could speak to driver driving. Car PTC 115. He also wrote the words "record only" in the margin of the page. 1. The applicant agreed with the proposition that his best recollection of events would more than likely have been closer to the incident. 2. The applicant rejected the proposition that his attempt to catch up to the other vehicle involved dangerous driving. 3. Following the incident, the applicant spoke to Sergeant Chapman and beyond that discussion, he did not consider the prospect of being asked any further questions or being brought before the Safe Driving Panel. 4. The applicant confirmed that he first read Constable Bernhardt's email to Sergeant Tylor dated 9 November 2014 when he returned to work after having a few days off on 12 November 2014. The applicant agreed he immediately identified that Constable Bernhardt's statement said: Cut across in front of our lane. Blue Gum Hotel, Hornsby was untrue. 1. The applicant stated that when he first read Constable Bernhardt's email reference: We did not pursue this vehicle as we had an IP female in the rear cage at the time but we merely wanted to identify the driver of the other vehicle. He disagreed with that statement and was adamant that at no stage did they talk about entering a pursuit of the vehicle. The applicant stated that he simply wanted to catch up to the vehicle and conduct a speed check. 1. The applicant stated his recollection was that as soon as he noticed the vehicle was no longer speeding, "I simply stopped taking notice of it". 2. In relation to Constable Bernhardt's statement that "we lost sight of the vehicle", the applicant stated: When I read that I simply interpreted that he stopped taking notice of the vehicle, which is something that I did. 1. The applicant was questioned about the differences between his understanding as to what occurred on the night of the incident and that of Constable Bernhardt. The following exchange ensued: Q: Was it concerning to you at the time that you read a version of events, contained in Constable Bernhardt's email, to Sergeant Tylor, which contained so many inaccuracies? A: No. Q: Did it not concern you that given those inaccuracies you had to ensure that those inaccuracies were drawn to the attention of Sergeant Tylor? A: As I have stated in my affidavit, this exact scenario has happened to me before and it didn't concern me. I simply recollected what I saw in front of me, in my own version of events. Q: Do you accept that there are at least four significant differences between what you say occurred and what is set out in this particular email from Constable Bernhardt? A: No, because he was viewing something different to me. Q: Well-- A: I was watching the road ahead of me, he was watching the car. So the car may very well have turned off, I simply don't know. Q: All right, so now you're saying, when it says that it turned left in the traffic ahead, it may have turned left in the traffic ahead, you just may not have observed it? Is that what your evidence is? A: That's correct. Q: But you agree that there's a significant difference in relation to where the vehicle pulled in front of the vehicle you were driving, at the Blue Gum Hotel? That's certainly contrary to your evidence, that's right? A: Yes. 1. The applicant believed that Sergeant Tylor's email to him dated 9 November 2014 simply wanted an account of what had occurred on the night of the incident. He was not aware at the time what was being investigated was potentially a matter that could be brought before the Safe Driver Panel. In drafting his response, the applicant contended that he was not overly concerned the matter was being investigated. Accordingly, when drafting his response: I was not taking it any more or less seriously than my other daily duties required me … I recorded what came to mind. 1. The applicant disagreed with the proposition that he first observed the number plate of the red sedan prior to passing Romsey Street. In was his evidence that he was first able to identify the vehicle of interest as the red sedan only after activating the Romsey Street speed camera. 2. The Commissioner of Police was critical of the fact the applicant did not set out what occurred on the night of the incident in chronological order. In that regard, the applicant contended that Police are not taught to write or set out reports in chronological order. The following exchange ensued: Q: I want to put to you that when one reads this statement in totality, the overwhelming impression that's created is that you actually closed the distance and observed the numberplate before you got to Romsey Street and after you activated the red camera or the speed camera at the intersection of Pacific Highway and Romsey Street you stopped pursuing the car? Stopped following the car? That's exactly what happened isn't it? A: That is incorrect and any Police Officer who read this should have come to the same conclusion as I have through their teaching. 1. The applicant acknowledged that he did not particularise his concerns about and disagreement with Constable Bernhardt's version of events in his interview statement: Q: It must have alarmed you that when you read Constable Bernhardt's account of what occurred that what he said was incorrect and you had to correct the record. A: As I've stated before Commissioner I've been involved in these identical situations and given the nature of the job I do not believe it's out of order for people to simply not forget or not remember or recall incidents correctly. Q: But there are some fundamental details contained in Constable Bernhardt's email which you disagreed with, that's correct isn't it? A: Yes. Q: And if you didn't have a discussion with Constable Bernhardt about why the pursuit should have ended or what happened after the vehicle - after you no longer could see the vehicle turning left. It would have made sense for you to actually record that in your statement, correct isn't it? A: Not necessarily it all depends on what the reader wants. Q: You knew what the reader wanted here was your account of what occurred, having read Constable Bernhardt's account of what occurred, that's right isn't it? A: No I did not know what the reader wanted or expected. Q: Wouldn't you know that from the email … A: Yes. I read that and he wanted an oversight of what occurred. Q: Well he wanted a report about the incident and if you have made any notes please forward them to me. So he wanted a report firstly but also he indicated that firstly you knew that you had Constable Bernhardt's notes and his account of what occurred and that's in fact noted in the email right? A: Yes. Q: So that's been drawn to your attention. A: Yes. Q: And you're asked to provide your own report. If there were parts where you disagree with Constable Bernhardt, it would have been appropriate for you to record those differences, that's right isn't it? A: No. 1. The applicant reconfirmed that he had not seen the RMS CCTV footage at the time he prepared his initial report. Accordingly, when the camera was activated, he was not immediately aware whether his Police Vehicle or another vehicle had set it off. He later confirmed that the Police vehicle was the only vehicle that passed through the Romsey Street intersection at the time of camera activation. 2. Notwithstanding the Commissioner's criticism in cross examination that the applicant had varied his account of the incident, the applicant agreed with the proposition that he: … was trying to catch up to a car to have a chat with them about the driving (and) during this I set off the speed camera. 1. In response to a question suggesting that the first time he observed the red sedan was the vicinity of the Waitara Caltex, the applicant stated: A: As I later explained in the interview where I point to the Caltex is the first time I can recall seeing the vehicle and being able to put a dot on the map, not the first time I see the vehicle. Q: Well-- A: Q:121, I do believe, yes I actually point out that the reference that I gave in my interview, in my report, is where I first saw the vehicle and that I first observed the vehicle cross the lanes between a series of s-bends and those two corners, not just one corner but two corners, hence the plural, are the two corners directly before the Romsey Street intersection. So my answer to Q:49, I was merely answering where can I first recall the car, recall seeing the car and being able to put a dot on the map. In my affidavit, I do actually specifically state the reason why I don't point to the McDonald's Waitara corner is because there is an apex of a hill on that corner and I didn't know how far past the corner the apex was. So for instance if I said in the interview and said, "Yeah I saw it outside McCarroll's Volkswagen, I would have been lying because from the distance from back at Hornsby Honda you can't actually see the road markings, so I didn't know where exactly around that corner I first saw the vehicle so I answered the Q:43 by saying, "No, I do not recall the exact point where I first saw the vehicle". The first point that I can recall seeing the vehicle and being able to put a dot on the map, is outside the Caltex because I, at that-- Q: Well is that, just hold on, is that inconsistent with what you said at paragraph 121 then, you accept that they're inconsistent answers aren't they? A. No they're completely consistent. 1. In response to further questioning alleging the applicant "couldn't keep your story straight" when responding to questions during the course of his investigation interview, the following exchange ensued: Q: What you're doing at the moment and what you did during the interview Mr Platts, was that you sought to improvise answers as evidence became known to you and that's what you did here, you firstly identified Waitara Caltex as the first time you noticed the car and then you change your answer later on when you ask further questions about where you notice the XCF to Hornsby Street, the cross streets of Hornsby Street as the place you identify the vehicle the first time. Those answers are inconsistent, that's correct isn't it? A: The first time I make reference to Hornsby Street is actually in my report before the interview, in my answer to Q:121, I clarify that again in my interview. My answers are consistent with my report. Q: Now what you say in your report, you don't actually identify specifically where you look at the vehicle, you just say, "You were driving along Pacific Highway approximately between Hornsby Street and Romsey Street", that's right? A: That's correct. Q: So that's a long distance, but you don't identify specifically where you actually saw the vehicle the first time, do you agree with that? A: I do believe I do, I do believe I say that I saw it go through a series of s-bends-- Q: Hold on, in your report? A: In my report, yes. Q: S-bends, let me look for the word. Go back to your report which is under tab - sorry series of bends, is that what you are referring to? A: Yes. Q: If we can go to the series of bends, I understand? A. Yes. So in saying that, the first bend between Hornsby Street and Romsey Street is where I can say I definitely saw the car. 1. The applicant restated that he lost sight of the vehicle "because I stopped looking ahead of me on the road". 2. The applicant confirmed that he observed the vehicle commit two traffic offences, the first being moving over or across the road lane lines and a second was that he believed it was speeding. He initially thought the driver may be under the influence of drugs or alcohol. However, by the end of "the incident" the vehicle had stayed within its lane and he no longer considered the driver may be under the influence. 3. During cross-examination on 11 April 2017, the applicant conceded that he had spoken to Mr Ian Harvey from Chase Burke Harvey surveyors sometime after 9.00 am and immediately prior to these proceedings. The applicant described this conversation as being general in nature with the exception of a question put to Mr Harvey concerning the accuracy of a 327 metre measurement set out in the survey undertaken on his behalf and set out in his affidavit evidence: There was just one measurement that I've questioned if it was accurate, which was the 327 metre measurement. It's a measurement I've personally never used in any of my measurements, so I've never really taken notice of it. I just questioned whether it was accurate or not. 1. It was the applicant's evidence that Mr Harvey never responded to his question as shortly after he put the question to him, Mr Harvey commenced speaking on his phone. 2. The applicant did not agree with the proposition that it was improper for him to speak to a witness whilst under cross-examination. He contended, "it depends on the conversation". He could not recall discussing with Mr Harvey the evidence he gave to the Commission on the first day of the hearing or what evidence Mr Harvey may give in these proceedings. 3. The applicant stated Mr Harvey was initially going to be called as a witness but later his counsel said he was not required. He did not tell Mr Harvey he was not required and later explained that he had left a telephone message that he was not required. The applicant later conceded he was aware that he was under a prohibition from talking to anyone related to the case whilst under cross examination. 4. In relation to speed checks, it was not the applicant's understanding that speed checks were "done only by those in Highway Patrol" as asserted by Constable Bernhardt. 5. The applicant stated that he formed the view that the vehicle of interest warranted a speed check "during the 360 metres before the intersection (of Romsey Street and the Pacific Highway)". He disagreed with the proposition that he decided to undertake the speed check at Hornsby Street which is prior to Romsey Street. 6. The applicant stated that he was able to identify the red sedan as XCF*** when his Police vehicle had passed the Holden dealership south of Romsey Street. The following exchange ensued: Q: No. You say it's some distance past the intersection. That's what you say. You don't say some distance-- A: Yep. Q: --past the Holden dealership. You say some distance past the intersection past the Holden dealership? A: That's-- Q: So you're saying just past the Holden dealership. That's right, isn't it? A: No, I'm not saying "just" anything. I'm simply saying it's a distance past the Holden dealership. Q: I want to put to you that what you conveyed in the answer to question 48 of your record of interview and what you conveyed in your response at paragraph 3.3.4 was that where you were located when you first caught up with the vehicle and observed the numberplate XCF on the red sedan was immediately past the Suttons Holden dealership on the Pacific Highway. That's right, isn't it? A: That's not correct at all. Q: If you're saying it's not correct, I want to give you the opportunity. Where do you say that you observed the vehicle? A: As I have stated in my interview-- Q: No. Where do you-- A: --I cannot recall-- 1. Following a criticism from counsel for the applicant that the Commissioner's line of questioning was ambiguous, the following exchange ensued: Q: Now let me ask you this. When you say to the best of your recollection that you say it wasn't just past the Holden dealership that you observed the number plate of the red sedan, to the best of your recollection when do you say you actually observed the numberplate, as in the witness box now? A: As I've stated in my response, Commissioner, it was past the Holden dealership. Q: No. Where do you say more precisely where it was? A: I'm not saying it's more precisely. Q: Well, I'm asking you, Mr Platts. So if you can't answer the question, say you can't. But I'm asking you do you recall now, having travelled down the roads, as you said yesterday, of the Pacific Highway thousands of times, can you say now more precisely where you actually observed the vehicle's numberplate for the first time on the Pacific Highway? A: No, I-- Q: You can't say? A: No, I can't say. 1. In relation to Constable Bernhardt's statement that the Police vehicle was close enough to observe the red sedan's numberplate somewhere "past the Waitara Avenue traffic light near Carden Avenue between Carden Avenue and Pennant Hills Road", the applicant stated Constable Bernhardt had provided three versions of the incident. The following exchange ensued: Q: … do you accept that you read that in his statement, Mr Platts? A: I accept that in one of his statements, yes. Q: And now you say you don't remember when you actually observed the vehicle. Do you accept that if Constable Bernhardt has given precise evidence as to when he actually observed the vehicle, his evidence is to be preferred over your evidence? A: I have given a measurement and that is past the Holden dealership. Q: Well, you say-- A: When I have stated that, I deem it to be the whole dealership, the whole Holden dealership, not just a building on the block. Q: When you say "past the Holden dealership", so I understand, are you saying it's before the Kia dealership or are you saying it could be anywhere past the Holden dealership, even beyond Waitara Avenue? A: Any point beyond the Holden dealership. Q: So that-- A: Well-- Q: --could be-- A: --I should answer that correctly by saying anywhere behind - anywhere beyond the Suttons motor dealership there. Q: Right. So you're not limiting it to prior to Waitara Avenue at all, are you, in your answer? A: No. Q: And you accept that you could have actually observed the vehicle at Carden Avenue, as Constable Bernhardt said? A: Yes. Q: Yes, and it could be between Carden Avenue and Pennant Hills Road. Do you accept that that may be true? A: I do not know that. Q: All right, so you don't-- A: I cannot recall that incident-- Q: --know that, but you can't contradict it, can you? Because you don't have a recollection, even though you've travelled thousands of times down the Pacific Highway, where you actually observe the vehicle with this number plate XEF? A: On the night in question, I don't exactly remember the exact point, no. Q: What I want to put to you is that what you're seeking to do now, Mr Platts, is improvise an answer because I've now shown you the map and the distance between where Romsey Avenue is and the Sutton Holden dealership and you've realised it only reflects somewhere between 70 to 80 metres and now you've sought to change the answer from very specific answers that you've given in relation to questions in your interview. That's what you've tried to do. You've improvised a new answer, haven't you? A: That's totally incorrect. 1. The applicant contended that "two kinks in the road" occur between James Street and James Lane. Despite vigorous questioning concerning what he meant by "negating corners" and "cutting corners", the applicant replied in the following terms: … you're taking my words completely out of context. I've already described this, what's occurred and what I meant … As I've said before, the whole part of the vehicle never left lane 2. Only part of it crossed the centre dividing lane. 1. In response to an allegation that "you haven't kept the details of your story straight … (and) in cross examination … you're improvising a different answer" to what is set out in your statement, the applicant responded in the following terms: Commissioner, my story is totally plausible. This is actually the first time I've ever been questioned as to what the vehicle was actually doing. It's the first time anyone has actually asked me to explain this in any detail. That's the reason why it is not found within my interview. 1. The applicant was shown a series of Google map photographs and agreed there was a small peak in the road in the first "kink". However, he disagreed with the proposition that it was not possible to see the lines on the road and accordingly, it was not possible to determine whether or not a vehicle is veering from one lane to the other. His response was, "I was looking at the first half the corner …" The applicant subsequently agreed that it was possible to see from the photograph vehicles travelling "on the other side of the peak" but not the lines on the road. Against that backdrop, the applicant remained adamant that he had observed the vehicle veer out of its lane. 2. In relation to the RMS road log data, the applicant agreed that at the time the red sedan activated the speed camera at Romsey Street, it was 10.43 seconds ahead of the Police vehicle. However, he denied that the Police vehicle "must have been significantly behind … (and) you weren't able to observe it for periods between Hornsby Street and Romsey Street: … Over the distance that I observed the vehicle from, I deemed it to have been gaining distance on my vehicle. 1. In relation to his notebook entry concerning the incident, the following exchange ensued: Q: So the concern you had at the time which you record in your notebook immediately after the incident was merely crossing the lane, you didn't have any concerns or you didn't have enough evidence to demonstrate any concerns about speeding at the time, that's right? A: Well I did have concerns at the time that's why I caught up to the car. Q: But you didn't record it in your notebook, do you agree with that? A: Yes I didn't record it in my notebook. My notebook is my own entry to jog my own memory, that's all it is. Q: Then you had the opportunity to set this out in your report so go to the report which is under tab 6. What you now say is that it's not only veering from lane 2 into lane 1, it's also cutting corners as if it's going from lane 1 to lane 2. You say that in the first paragraph that's right? A: No I've already clarified this. Q: I'm going to put to you what you've done is actually added something which wasn't contained in your first - in your notebook entry, do you agree with that? A: What would that be? Q: The car was veering also afterwards cutting corners from lane 1 to lane 2. A: No that's totally incorrect. Q: And you amplified what you put in your initial notebook entry? That's correct isn't it? A: Yes I've gone into a lot more detail than what my notebook entry entails. 1. The applicant agreed his initial intention was to check the sobriety of the driver to determine whether or not he/she was affected by drugs or alcohol. However, he did not record this in his notebook. In relation to the applicant's observation that the vehicle was speeding, the following exchange ensued: Q: All you say is that you decided to do a speed check but you haven't actually observed it speeding yet. Do you agree with that? A: The only way I could observe it speeding is if I conducted a speed check. Q: But that wasn't the reason why you decided - that's not the offence that you had observed. The offence you had observed was merely the crossing - the car crossing into another lane. That's right? A: It says in my answer that I wanted to catch up to the car to start a speed check. I would only want to do that if I believed a car was speeding. Q: Well what you in fact say in your answer is you were catching up to the car so you could at least see the numberplate and make and model and possibly start a speed check so you hadn't actually formed the view yet that the car was speeding, that's correct isn't it? A: To clarify this whole point yes I had but I cannot say that the car is speeding until I conduct a speed check so I can only say it could have been speeding. 1. Counsel for the Commissioner of Police alleged the applicant had changed his evidence in the course of cross examination; The following exchange ensued: Q: What I want to put to you Mr Platts is that you have changed your evidence in your various versions of events in relation to a critical issue as to why you decided to follow the red sedan, do you accept that? A: No I don't accept that. Q: You've changed your evidence from firstly seeking to speak to the driver about driving and then to conduct a sobriety check to ultimately saying it was solely to do a speed check and then you would evaluate your options. Do you agree with that? Your evidence has changed on this issue? A: My evidence may have been written down in more than one way but my intentions have never changed. Q: I want to put to you-- A: Only when people have asked me to explain things in more detail have I given them more detail. Q: Well it's not more detail, it's actually a change in the justification for seeking to catch up with the red sedan. You moved from one justification to a completely different justification and you disavowed the original justification, that is a traffic stop, do you agree with that-- A: That's not correct. Like I've said before my versions have - my notebook entry is five lines long, my initial report is five paragraphs long, my interview is 20 pages long. Q: Now-- A: You cannot judge a five page summary as what comes out of a 20 page interview. Q: It would've been very easy for you to put in speed check into your notebook entry or report, do you agree with that? A: I do believe I did. Q: You didn't put speed check into your notebook entry did you? A They are my notes, they are my own notes to jolt my own memory and that's exactly what it's done. 1. The applicant agreed that he sought to get close to the vehicle so he could "evaluate his options" but denied he changed his evidence in relation to the critical issue as to why he decided to follow the red sedan: Q: No. If you said yesterday, I want you to assume you said yesterday, you never intended to perform a traffic stop, would you accept that your evidence in your notebook entry to speak to a driver about driving as being a reason to catch up with the sedan is completely the opposite to what you said? A: No, 'cause it's a summarisation of what occurred. Q: All right, which is-- A: Not a word perfect explanation of what occurred. Q: What you have done here is you have not been able to keep clear in your own mind what you've said previously in your other notes and your story has changed over time to suit your version of events to demonstrate compliance with the safe driving policy. That's what's happened here isn't it? A: As people have asked me to provide more detail I have. 1. The applicant subsequently confirmed: * His notebook entry does not record when he first observed the registration plate and made out XCF***; * In his investigation interview, he had said he saw the red sedan "past" the Holden dealership but had no precise recollection of the exact location where he first saw the number plate of the red sedan; * He had also suggested in evidence that he saw the vehicle after the intersection of Waitara Avenue and the Pacific Highway; * He did not accept the evidence of Constable Bernhardt which was that he observed the registration number of the red sedan between the intersection of Carden Avenue and Pennant Hills Road, nor that he did not observe the vehicle speeding, slowing to 50 km/h. swerving or crossing lanes; * He agreed with Constable Bernhardt's evidence that at the point where he first observed the numberplate, the red sedan was no longer speeding and was in fact travelling at approximately 50 km/h; what he did not accept was the evidence that he first observed the vehicle at the intersection of Carden Avenue and the Pacific Highway; and * Following the camera activation and once he had caught up to the vehicle, it was no longer speeding and accordingly, "there was no need to continue". 1. The applicant disagreed with the proposition that whilst conveying an intoxicated person, his job "wasn't to actually to conduct traffic stops or to follow vehicles": As a Police Officer it's my job to be proactive. You're on duty for 12 hours of the shift. 1. It was the applicant's evidence that it was standard policing procedure to confine reports to no more than two pages in length and contain a short or brief summary of what had occurred. In his view, such reports did not require "every single detail" to be included. He further contended that "(this) is how reports are written in the New South Wales Police Force". 2. In relation to a further viewing of the RMS CCTV footage, the applicant identified the tail lights of the red sedan at the point where a light pole appears adjacent to an awning on the far left of the screen. The applicant contended that the vehicle was braking and "continued to brake" just after Waitara Avenue as it began to reduce its speed. 3. The applicant also confirmed his view that between approximately five and seven seconds post camera activation, the Police vehicle braked for approximately two seconds, with a short delay between the brake lights and brake system activating. The following exchange ensued: Q: You're saying that you can continue seeing the brake lights on the car after it goes past the awning until the end of the video? A: All I'm saying is, the flash of lights that you see at the first instance of the video is indicating a car that's braking. The reason why I say that is because the flash of light at the beginning of the CCTV footage is twice as bright as my car goes through it. As you can see on the footage, a car with lights that are braking, the brake lights are twice as bright, and therefore produce twice as bright a reflection as what you can see. So the car is braking from the time it enters into the – I can see, I believe, that it's braking as it enters the awning. And I can see it braking again once it comes out behind the awning. Q: All right, let's accept that. But what you can't see is what happens between the time you lose sight of it after the awning and when it re-emerges at the end of the clip. That's correct, isn't it? A: From the footage, no, I can't see it. Q: So, whether or not, your assertion that must've been braking all the way to beyond Waitara Avenue … is nothing but speculation, correct? A: I don't believe I ever speculated that. I'm merely stating I can see it braking at the beginning and braking at the end of the footage. 1. The applicant subsequently agreed that the vehicle was not braking continuously after it passed the awning. He also agreed with the proposition that between Hornsby and Romsey Streets, the red sedan accelerated gaining distance on the Police vehicle, then suddenly slows and passes through the speed camera "below the speed limit, whilst you're accelerating up to 72 kilometres per hour". 2. It was the applicant's evidence that despite being a proactive Police Officer, there was insufficient time to draw Constable Bernhardt's attention to the vehicle of interest changing lanes and the like: … As I stated before, something that occurs in a split second … I cannot alert him to something that happened a second ago. … The correct thing for me to have done in that scenario (where a reasonable belief had been formed that a driver may be affected by alcohol or was speeding) is to alert Constable Bernhardt when I began conducting the speed check, that way he could be a witness to the speed check, and therefore he could be a credible witness to it. Now, until I started doing a speed check, there was no need to alert him to anything. In reference to the vehicle moving out of its lane, it's something that occurred over a split second, either he saw it or he didn't. 1. In relation to a question that as a proactive Police Officer, he should have shared his concerns about the red sedan's driver and the possibility of a speed check with Constable Bernhardt, the applicant stated he never commenced a speed check. In that regard, he did not commence a speed check because when he "caught" up to the vehicle, it was not speeding: By the time I catch (sic) up to the car it's not actually speeding so that is the point when I should've alerted Constable Bernhardt as to what it is I was doing, at that point. That's when he becomes a witness to what I'm doing. 1. The applicant further denied that he should have informed Constable Bernhardt that he had seen the red sedan move from its lane. 2. The applicant contended that it was unnecessary for him to follow the vehicle further and determine the full number plate on the grounds that it was no longer exceeding 60 km/h. 3. The applicant's evidence was that at all times, neither vehicle was maintaining a constant speed as asserted by Sergeant Coxon. 4. Part of Sergeant Coxon's evidence was that the Police vehicle was approximately 222 metres behind the red sedan when it passed through the Romsey Street intersection. In relation to Sergeant Coxon's evidence, the applicant: * Contended that if it was accepted that the Police vehicle was slower at the beginning of the incident and then sped up, Sergeant Coxon's "assumptions are incorrect and should not have been used and that's all I can say about that"; * Accepted that the first vehicle was detected by the speed camera at the Romsey Street intersection 10.46 seconds; * Acknowledged that the Sergeant had made an assumption that the Police vehicle was maintaining a constant speed of 72.8 km/h for that 10.46 second period; * Contended that the Police vehicle was initially travelling at or around the speed limit and was accelerating in an attempt to close the distance on the vehicle of interest; and * The vehicle of interest, the red sedan, had slowed down as it passed through the intersection at approximately 60 km/h. 1. In relation to specific criticism concerning his report submitted to Sergeant Tylor, the applicant conceded that he had never seen "an example report concerning a red light speed camera activation". 2. With reference to the preparation of reports generally, the applicant agreed that the report should be presented in chronological order with the facts upfront followed by the narrative. 3. In relation to his report to Sergeant Tylor, the applicant did not consider that when explaining the incident he was required to identify the location of the red sedan when he first observed it. In that regard, the applicant referred to Senior Constable Egleton's speed camera activation report (annexed to his statement) which describes "an identical situation and there is even less information in his report than there is in my report". 4. The applicant noted that Sergeant Tylor's email to him concerning the incident: … simply asks why I activated the camera, not why I didn't catch up to the car or what happened after the camera activation or anything like that. 1. The applicant did not consider a relevant circumstance to be included in the report was why he had ceased to follow the red sedan. 2. With respect to Constable Bernhardt's affidavit and his reply evidence, the applicant contended he had not necessarily responded to all the objections he had identified. The applicant acknowledged that Constable Bernhardt had said to him, words to the effect of: I will say the car swerved from the side and I will say the car came from the Blue Gum Hotel. 1. However, while the applicant could not recall the exact conversation he had with Constable Bernhardt at the time he made those statements, he was definite that he "had a conversation with him about what he said and it would have been to correct him". 2. The applicant denied that he was "making up" this response particularly given there was no specific reference in his affidavit evidence that he had sought to correct Constable Bernhardt. He believed that he had explained this particular situation in questions 84 and 85 of investigation interview. 3. In that regard, the applicant did recall talking to the Constable on the night of the incident and sometime later when he had read his email report to Sergeant Tylor. The applicant denied the proposition that he didn't respond at the time because what Constable Bernhardt had said was a plausible explanation to explain why the Police vehicle had activated speed camera: Now if Warren said to me the car came out of Romsey Street, out of the side of the Blue Gum Hotel, I definitely would have corrected him because I knew the car was in lane 2 of the Pacific Highway as it entered the intersection as I have stated in my report and interview and was only after the interview that Investigators went out and got the RMS log data which proves that. 1. The applicant denied the allegation put in cross examination that at no stage between drafting his notebook entry on 22 October 2014, his report dated 12 November 2014, the investigation interview on 9 February 2015, the 181 D notice response dated 27 May 2016 and his filed affidavit evidence had his account of the incident changed. 2. The applicant contended that Investigators had failed to view the RMS CCTV footage correctly. The following exchange ensued: Q: You believe there is a conspiracy against you, Mr Platts? A: I wouldn't say "conspiracy". I would simply say a few – a few incompetent Police Officers have failed to view the footage correctly. Q: Right? A: And once they put this accusation to me or once they started the investigation, they put it on the P – drive and as per the P – drive, you can't downgrade it once it's put on the P – drive. So, they couldn't downgrade it to a local management issue or something else. So, instead of trying to unsustain it, they just ploughed ahead. Q: So, who do you say is incompetent? A: Who do you say is incompetent? Mr Tylor is incompetent because he was the first person that looked at this footage and states boldly in his statement, in paragraph 6 and 7, that there is no vehicle of interest in the footage. Q: Well, just tell – just name the people you say are incompetent in this case? A: Mr Tylor, Chief Inspector David McBeath, Acting Superintendent Denbey- Lee Eardley. They are the people that I know are incompetent in this case. Q: Do you say the persons who made the decision to escalate this matter and remove you from the Police Force are incompetent? A: Well, I don't know who they are? Q: You know the Commissioner of Police made a decision ultimately to remove you from the Police Force, you know that? A: Yes, I'm aware of that. Q: Do you say that the Commissioner of Police in reviewing the investigation report as well as your response was incompetent in forming the view that it lost confidence against you? A: What I'm saying is that the evidence that was put to him was incorrect and, therefore, he has made a false assumption that certain things have taken place or I have said or mentioned or done certain things, which I could have not. Q: So you – A: Therefore I do not believe he personally is an incompetent person, even though he's currently retired. He has simply made a decision based on incorrect evidence, false accusations and things that simply are not truthful do not line up with the physical facts of this incident. 1. In terms of mitigation, that the applicant stated that he was a furniture maker by trade and had worked mainly in the Sydney CBD and the Eastern Suburbs. He had not looked for a job as a furniture maker since his removal from the Police Force because he now lives two hours from the CBD. He had undertaken some labouring work. 2. In re-examination, the applicant stated Sergeant Tylor's statement was deficient because he had not identified a vehicle of interest in the RMS CCTV footage. In that regard, the applicant was able to identify and place a mark on Exhibit 7, an RMS CCTV screenshot at 00.09 seconds following camera activation. The following exchange ensued: Q: Mr Platts, just to clarify, when you said that they're incompetent, is it because you think they should be able to identify that there's another car? A: Yes, I had the greatest of ease in doing it and also no issue with other people doing it. 1. The applicant confirmed that he had been shown the RMS CCTV footage a number of times and in the course of viewing that material, he had identified a white light at the beginning of the video. He was subsequently shown two screenshots, the first at 00.00 seconds and the second at 00.04 seconds. 2. In relation to the 00.00 seconds screenshot, the applicant was able to identify and place a circle around the source of "the white light". The following question was put to the applicant: Q: With reference to 00.00, are you able to identify on that screenshot what you say the white light is? A: Yes, that's the car I was following. Q: So you're able to identify the white light? A: Yes. Mr Darren Johnson 1. The applicant read an affidavit from Mr Darren Johnson filed on 19 April 2017. He was not required for cross-examination. 2. Mr Johnson is a surveyor employed by Chase Burke and Harvey surveyors, a firm engaged by the applicant to undertake a survey of part of the road formation on the Pacific Highway Waitara between Hornsby and Waitara Avenue, Waitara. Mr Johnson completed the survey on 20 October 2016. 3. Mr Johnson described the method of undertaking the survey using a Trimble Robotic Total Station Theodolite. One of the distances he was instructed to measure was the distance along the centreline of lanes 1 and 2 on the Pacific Highway from a point 5 metres past the "No stopping sign" to sensor pad lane 2. 4. A detailed survey report and plan prepared by the firm's Mr Ian Harvey was set out under Tab D43 annexed to the applicant's primary affidavit and dated 20 October 2016. 5. Mr Johnson deposed that on 21 October 2016, the applicant advised him that he had incorrectly measured the distance from Hornsby Street to the sensor pad in lane 2 and had missed the chevrons painted on the roadway. Accordingly he undertook a further survey using the same techniques as the earlier survey and measuring using the "No stopping sign" as a survey point. A revised survey plan was subsequently prepared for the applicant. 6. Mr Johnson explained that due to an administrative error, the distance measurements using the "No stopping sign" as the commencement point "were not inserted on the updated plan". 7. Mr Johnson attended the site again on 11 April 2017 and remeasured the distance from the "No stopping sign" to the sensor pad lane 2 using the previous survey methods and determined the correct distances as follows: Lane 1: 213.1 metres Lane 2: 213.2 metres 1. An amended survey plan was attached to his affidavit. Respondent Sergeant Richard Coxon 1. The respondent chose not to read Sergeant Coxon's affidavit filed on 3 March 2017. Constable Warren Bernhardt The incident 1. Constable Bernhardt's evidence concerning paragraphs 17, 19 and 21 of his affidavit have been dealt with above. He further deposed: As the Police vehicle travelled through the intersection of the Pacific Highway and Romsey Street in Waitara, I observed a flash of light from outside the Police vehicle. Just before I observed the flash, I had been looking at the buildings outside of the Police vehicle to my left and occasionally looking over my right shoulder to supervise intoxicated passenger in the rear of the vehicle. Upon observing the flash, I looked around for its source. Soon after the flash, I felt Mr Platts apply the brakes of the Police vehicle. Mr Platts said words to the following effect: Fuck, Bernie, I think that was a camera. Mr Platts then accelerated suddenly. Approximately two seconds after the flash, I turned and looked ahead through the front windshield of the Police vehicle. I saw only one car ahead of the Police vehicle on the Pacific Highway. I observed from Mr Platts's demeanour that he seemed focused on that car. He continued to accelerate, seemingly to try and catch up to the vehicle that was ahead of us. 1. Constable Bernhardt proceeded to describe that he first observed the car in question when it was located "just before the bend" on the Pacific Highway at the intersection of Carden Avenue. In that regard, two maps showing the intersection of Pacific Highway were attached to his affidavit: On the first map, I have marked with an "X" location of the car when I first observed it around two seconds after the Police vehicle passed through the Romsey Street intersection … There was quite large distance between our vehicle and this other car that was ahead of us on the Pacific Highway when I first observed it. 1. Constable Bernhardt stated that he did not observe where or when the red sedan first entered onto, or turned off the Pacific Highway. He was also unsure as to when he first saw the red sedan: At some point on the Pacific Highway, between the intersection of Carden Avenue and the intersection of Pennant Hills Road, we continued to accelerate towards the car that I had observed ahead of the Police vehicle when we crossed Romsey Street … I saw that it was a red sedan. When we were at a distance of approximately 15 metres behind the red sedan, I started to write down its registration number on a piece of paper. I did this instinctively as I had assumed Mr Platts had some justifiable interest in catching up with the sedan … However, Mr Platts decelerated nearly immediately after we had caught up to the red sedan, increasing the distance between us … When Mr Platts did this I stopped recording the registration number, as I assumed he had lost interest in the vehicle and the registration number would no longer be of any use. Accordingly, I only recorded the letters "XCF" … 1. Constable Bernhardt contended that the red sedan appeared to be driving normally at all times. He did not observe it swerving, crossing lines or speeding in excess of the speed limit. He further contended that given the red sedan was so far ahead of the Police vehicle and it was night time, it was not possible to make accurate observations of the red sedan until the Police vehicle was much closer which ultimately occurred on the Pacific Highway between Carden Avenue and Pennant Hills Road. 2. It was Constable Bernhardt's evidence that NSWPF standard operational procedures required the applicant to prioritise the transportation of an intoxicated person unless there was a medical emergency. Moreover, he considered those procedures prohibited Officers from performing any other duties. Therefore, in the absence of any medical emergency, a Police vehicle conveying a member of the public should not: 1. activate its lights and sirens; 2. commence pursuit of a vehicle; or 3. pull a vehicle over. 1. In view of the NSWPF standard operational procedures, Constable Bernhardt contended the appropriate course of action for the applicant to adopt was if he observed the driver of the red sedan committing an offence, he should have notified him and he could have broadcast the information over Police radio so that other Officers "could attend the location and intercept the vehicle …" 2. Constable Bernhardt explained that later in the night when still travelling to Central Station, he said words to the following effect to the applicant: I will say the car swerved from one side. 1. Constable Bernhardt could not recall why he made that comment to the applicant and he knew then as he did now that this was a false statement. He contended that if he said the car ahead had swerved out, this would give the applicant an explainable excuse for speeding through the intersection. Constable Bernhardt could not recall the applicant responding to his comment. 2. Constable Bernhardt could not recall whether or not he had said to the applicant, "I will say that a car came from the Blue Gum Hotel" as he recounted in his interview on 4 May 2015. Further, he could not recall if the applicant responded to the comment, "but I do not believe that he did". 3. Following their return to Hornsby Police Station, Constable Bernhardt stated he did not discuss the incident with the applicant prior to writing his notebook entry which stated: PTC115 driven by Platts. We observed red veh rego XCF to cut across in front of our lane near Blue Gum Hotel Hornsby, possible camera activated. 1. Constable Bernhardt recalled that he had used the piece of paper with the partial registration number recorded to complete his notebook entry. He admitted that when he made the above statement, he knew that it was false. He first observed the location of the hotel near the intersection of Pacific Highway and Romsey Street on their return from Central Station. Constable Bernhardt believed his notebook entry would provide the applicant with a lawful reason for exceeding the speed limit in circumstances where he had no lawful reason to "speed up" after the intersection in order to catch up with the red sedan. Email to Sergeant Tylor 1. Constable Bernhardt stated when he wrote the following email to Sergeant Tylor on 9 November 2014, he had not discussed the incident with the applicant since the night that it had occurred: As per our conversation earlier on the phone I have attached vehicle diary and notebook entry for the incident. We were on our way to Central Railway Station and a vehicle pulled in front of us from the right-hand side and cut in front of us. The vehicle came from the intersection of the Blue Gum Hotel Hornsby. The driver Phillip PLATTS (42291) accelerated to catch up to this vehicle and in doing so activated the camera at this intersection. We did not pursue this vehicle as we had an IP female in the rear of the cage at the time but we merely wanted to identify the driver of the other vehicle. We lost sight of the vehicle which turned left in traffic ahead. I will e-mail Constable PLATTS to inform him to mail you his entry and Event Number re IP female. … 1. Constable Bernhardt reiterated he wrote the above email so as to present a consistent message reflecting that contained in his notebook entry. Constable Bernhardt also copied the applicant into his email so that he would be aware that he had been contacted by Sergeant Tylor, what he had told them about the incident and that he was also required to submit a report. First interview 1. Constable Bernhardt's first interview occurred on 13 February 2015. At that time, he had not spoken to the applicant about the incident since it occurred nor had he read the applicant's report concerning the incident or his account put to the Investigators. 2. Immediately prior to his interview, Constable Bernhardt spoke to Chief Inspector David McBeath about the seriousness of the matter. Constable Bernhardt subsequently realised the seriousness of lying, making a false notebook entry and report to Sergeant Tylor. Accordingly, he attempted to keep his answers: … consistent with my previous untruthful accounts of the incident instead of correcting those previous accounts and providing a true version of events … Events following first interview 1. It was Constable Bernhardt's evidence that following his first interview he spoke to the applicant at Hornsby and words to the following effect were exchanged: Me: I was interviewed. You will be too. Applicant: I've already had my interview. 1. Following this exchange, Constable Bernhardt contended that neither he nor the applicant had discussed "each other's evidence at our respective interviews". 2. Constable Bernhardt was subsequently transferred to Central Station while the incident was being investigated and shortly thereafter he decided to approach his Commander, Acting Superintendent Eardley. At about the same time, he approached the applicant at the Central Station PTC office and showed him his incorrect notebook entry. Constable Bernhardt deposed a conversation to the following effect occurred: Me: Phillip, here is my notebook entry from the night you activated the speed camera. Look, I have inconsistencies with my evidence. It is not right. I am going to see Ma'am Eardley about it. You should come with me Applicant: Don't do that. Meet me at the lockers at 6.00 pm. 1. When Constable Bernhardt met with the applicant in the locker room, he expected him to admit "that we needed to sort out the inconsistent accounts of the incident". However, the following exchange ensued: Applicant: You need to phone the Association. 1. Constable Bernhardt subsequently observed that it was clear to him that the applicant had no intention of seeing Acting Superintendent Eardley with him in order to correct their accounts of incident. It should be noted that at this juncture, Constable Bernhardt had not seen the applicant's report or interview record. Second interview 1. Constable Bernhardt met with Acting Superintendent Eardley on 4 May 2015. A further interview was subsequently arranged where he corrected his previous accounts of the incident. Applicant's affidavits 1. In relation to the applicant's affidavits, Constable Bernhardt stated the following: * He understood that a Police Officer must be trained as a Highway Patrol Officer in order to conduct speed checks. Both he and the applicant had not undertaken such training; * The applicant never informed him that the red sedan had been speeding or that he was going to conduct a speed check. Contrary to his description concerning speed checks, the applicant never followed the red sedan while maintaining a constant distance; * His reason for participating in the second interview was to be truthful. The fact that he was subsequently subject to a "forced transfer" was irrelevant. He did not act under duress; * He did not see the red sedan turn off the Pacific Highway; * On the night of the incident, he and the applicant did not discuss "recording the incident in notebooks". Further, he had no reason to believe the applicant was aware that he had made his notebook entry as he was not present in the room when it was made; and * Other than suggesting that he contact the Police Association, the applicant did not provide him with any other advice whatsoever. 1. In cross-examination, Constable Bernhardt stated that immediately prior to the incident on 22 October 2014, he had only been based at Hornsby for a few weeks and had probably only worked a few shifts in the PTC. He agreed that he was not familiar with the Hornsby area at that time. 2. Constable Bernhardt confirmed that prior to camera activation, he was looking towards the left and not straight ahead. He was subsequently shown a series of photographs and was able to identify a number of business premises and car yards on the left hand side of the Pacific Highway prior to the Romsey Street intersection. 3. Constable Bernhardt was adamant that post activation, the applicant had said to him words to the effect of: Fuck, Bernie. I think that was a camera? 1. In relation to Q 35 in his second "correction" investigation interview on 4 May 2015, where he told Investigators that he didn't think the applicant said anything to him after camera activation, Constable Bernhardt stated: … In that interview I was untruthful. 1. Relation to Q 42, the following exchange ensued: Q: And so do you accept that – and you again being asked – A: Yeah. Q: – about what happened immediately after the activation, and again you say in this interview that he didn't say anything to you at the time? A: That's correct. Q: Why did you say that in the interview? A: Because I was still holding back what I was saying. Q: So do you say, sir, that that is a false answer? A: It's not the truth, no 1. Constable Bernhardt subsequently provided a correct version of the events that occurred post camera activation in his answer to Q 49. 2. Constable Bernhardt confirmed he did not see a vehicle cut in front of the Police vehicle coming from the Blue Gum Hotel. 3. The Police vehicle appeared to be driving normally prior to the Romsey Street intersection. Post camera activation at Romsey Street, Constable Bernhardt felt the car brake "just slightly ... A slight tap" followed by acceleration. 4. It was Constable Bernhardt's evidence that post camera activation, he was not paying 100% attention to what was directly occurring in front of the Police vehicle. However, he was clear that the Police vehicle accelerated and the applicant's demeanour seemed focused on the car in front of the Police vehicle: … to me it appears he is trying to catch up to the vehicle. 1. At no stage post camera activation did Constable Bernhardt consider contacting VKG. He didn't see the vehicle of interest do anything wrong and "thought there's no reason to take down the registration". 2. In relation to the RMS CCTV footage and road log data, Constable Bernhardt agreed a red vehicle passed through the Romsey Street intersection 10.43 seconds prior to the Police vehicle. He became aware that the vehicle was a red sedan and the first three letters of its number plate were XCF: … once we've come around the corner and we'd actually caught up to the car … I could see the registration. 1. Constable Bernhardt stated the applicant did not tell him to record the first three letters of the number-plate. Rather, he acted on his own initiative. 2. It was Constable Bernhardt's evidence that he had never driven "that stretch of road ever before" prior to the incident. 3. Shortly after his first investigation interview on 13 February 2015, Constable Bernhardt told the applicant that he had been interviewed. In response, the applicant told him that he had already been interviewed. Constable Bernhardt agreed that this was the first time he had heard the applicant had been interviewed and there was no prior discussion concerning the fact that the applicant was to be interviewed. 4. Constable Bernhardt stated that Sergeant Tylor had initially asked him to scan his notebook entry and the vehicle diary. There was no request for a formal Police report. Despite the simplicity of the Sergeant's request, Constable Bernhardt decided to write the untruthful narrative which he subsequently corrected in May. 5. Constable Bernhardt agreed that he was served with a copy of the investigator's report on or about 29 April 2015. It was his evidence that prior to 29 April 2015, he had not seen a copy of the applicant's 9 February 2015 interview record. Nor at any time had he viewed a copy of the applicant's report to the Investigators or his notebook book entry. The following exchange ensued: Q: Are the entirety of the conversations that you had with Mr Platts prior to 29 April 2015 about this incident, are they referred to in your affidavit? A: Yes Q: So, is it fair to say, sir, that there was never a detailed discussion after 22 October 2014 about the incident between you and Phil? A: Yes, that's correct. Q: That's correct? A: Yes Q: You certainly never got together to try and collude your evidence, did you? A: No, no, we didn't. 1. Constable Bernhardt was shown a copy of the Investigators' report that was attached to the applicant's first affidavit and the following exchange ensued: Q: Do you recall, sir, that the investigator seemed to suggest that there was no car XCF that was on the Pacific Highway at this time? A: (No verbal reply) Q: You've just nodded. Is that a "Yes"? A: That's what I believe was initial investigation. Q: The initial investigation? A: It was all around the vehicle. Q: Yes? A: The other vehicle, yes. Q: And did you form the impression that the investigator believed that there was no car, no red car XCF? A: I didn't look at it too much. 1. Constable Bernhardt recalled that about two seconds through the Romsey Street intersection, the Police vehicle accelerated slightly without "excessive speeding". Within the next eight seconds, he could not recall whether the Police vehicle was doing a uniform speed – "It's too long ago, I can't remember". 2. Constable Bernhardt subsequently agreed with the proposition that if he had felt the car accelerating, it would not have been doing a uniform speed. The following exchange ensued: Q: PTC115 was not doing the same speed for 10 seconds after the lights, as you felt it accelerate, correct? A: That's right, yes. 1. Constable Bernhardt's initial response to a question that during the return trip from Central Station to Hornsby, he had said to the applicant "I will say the car swerved from the side" was not definitive: I may or may not have said that, I can't recall. He later responded: At some point I did say that, I think, yeah. 1. In paragraph 18 of his affidavit, Constable Bernhardt referred to the previously mentioned NSW Police Force standard operational procedure which required Officers to prioritise the transportation of intoxicated person in the rear of a Police vehicle: 2. In relation to that standard operational procedure, Constable Bernhardt was unable to name the overarching policy. The following exchange ensued: Q: Did you do the first draft or did the solicitors do the first draft? A: Yes, the solicitors did it. Q: Do you recall whether paragraph 18 was in there when you received it? A: Yes, it was, it was. 1. Constable Bernhardt was unaware who had written paragraph 18 of his affidavit. He later speculated that the policy referred to in paragraph 18 may have been the Safe Driver Policy. 2. Constable Bernhardt reconfirmed that when he suggested to the applicant that they approach the Commander to correct "some report inconsistencies", he was in fact referring to his own notebook entry and his version of the incident. He also confirmed that at that point in time he had not seen the applicant's notebook, his report or the contents of his first investigation interview. 3. Constable Bernhardt agreed that it was "fair to say" that prior to the Romsey Street intersection: … he wasn't paying too much attention to what Phil was doing, you were looking out to the left, or otherwise looking at the passenger who was being transported, that's your version? 1. Constable Bernhardt could not recall any conversation between the applicant and himself immediately prior to the Romsey Street intersection. He had not observed the applicant's demeanour at that time nor was he aware of what the applicant "was thinking". The following exchange ensued: Q: But you became focused on him after the traffic flash had been activated? A: Yes. Q: There was definitely a red car, XCF, they decided after the Romsey Street intersection … A: Yes. Q: And if an investigator or another member of the New South Wales Police Force had come to a conclusion or view that XCF was a fabrication and did never exist, you would agree with that, wouldn't you? A: I would disagree, yes. 1. There was no re-examination. Detective Superintendent Paul Devaney 1. The respondent read an affidavit filed by Detective Superintendent Devaney on 3 March 2017. The Detective Superintendent is the Commander of the Police Transport Command – North Central Sector based at Central Railway Station. 2. Detective Superintendent Devaney noted the absolute requirement of Police Officers to act consistent with and in compliance of various NSWPF policies including the Code of Conduct and Ethics, the Statement of Values and the Safe Driving Policy. Copies of those policies were annexed to his affidavit. 3. In further evidence in chief, Detective Superintendent Devaney acknowledged that the Safe Driving Policy attached to his affidavit was the updated July 2016 version and not the Policy that existed at the time of the incident in October 2014. The Safe Driving Policy that applied at the time of the incident was a version published in November 2009. 4. Much of Detective Superintendent Devaney's affidavit dealt with issues directly drawn from the s 181D removal order and the Statement of Reasons. Copies were annexed to his affidavit. Given his reliance on the removal order and the Statement of Reasons, which have been set out in considerable detail above, I do not propose to repeat that material here. 5. Detective Superintendent Devaney stated that Police Officers are expected to comply with the criminal law both on and off duty. Failure to do so carries with it the risk that the confidence the community has in its Police will be seriously undermined and bring the entire NSWPF into disrepute. Traffic offences are a subset of this type of behaviour and all road users are expected to comply with the road rules and drive in an inherently safe manner. 6. Detective Superintendent Devaney stated investigation found that the applicant had no legitimate excuse or reason to be speeding. He noted: It is possible that Mr Platts was driving above the speed limit with a view to delivering the intoxicated person in the cage of the vehicle to a destination as quickly as possible, so he could return to his usual duties at Hornsby PTC. It is equally possible that Mr Platts simply lost concentration toward(s) the end of his shift, and did not realise that he was travelling in excess of the speed limit. In and of itself, speeding in the range of 10 km/h to 15 km/h above the posted speed limit is not a particularly serious matter … In the context of other criminal and traffic offences, Mr Platts' traffic offence was not at the higher end of objective seriousness. While it would be a matter for the Commissioner of Police to determine, I do not expect that a Police Officer would be removed from their employment solely for driving 12 km/h above the posted speed limit (save for any exceptional or aggravating circumstances). Police Officers, like all other road users, are occasionally detected committing traffic offences by fixed speed and safety cameras. This can occur in the course of their duties, on or off duty. When this occurs (again, save for any exceptional or aggravating circumstances) and the speeding has not been determined to be exempt under Rule 305 of the Road Rules 2008, Officers will be treated like any other member of the public who will be required to pay the fine … Falsifying a Police record 1. In relation to the camera activation incident, Detective Superintendent Devaney deposed: (The) account of events was broadly supported by evidence initially supplied to investigating Police. Constable Warren Bernhardt was the passenger in the Police vehicle being driven by Mr Platts on 22 October 2014. 1. Detective Superintendent Devaney considered Mr Platts' suggestion in his Police notebook that he saw the red sedan crossing into his lane was clearly false. The evidence shows the red sedan was too far ahead of the Police vehicle for Mr Platts to have observed this clearly. Even if Mr Platts did make such an observation, or had reasonable grounds to suspect the red sedan had crossed into his lane illegally [REDACTED]. 1. Detective Superintendent Devaney contended that unless the offence was of a serious nature requiring immediate intervention, Police radio should have been called to arrange another Police vehicle to stop the driver of the red sedan because a vehicle conveying a prisoner/intoxicated person is unsuitable to engage in a pursuit or urgent duty. 2. Police records are State records which are routinely relied upon for the conduct of a wide range of Policing duties. Accordingly, the maintenance of accurate and complete Police records is essential. The deliberate falsification of any document is a very serious matter and particularly so where a document is falsified with a view to concealing Police misconduct: … demonstrates that they lack the honesty and integrity that all Police Officers must exhibit. Truthfulness regarding the speeding incident 1. Police Officers must demonstrate the highest levels of integrity including in their interactions with their sworn colleagues, the general public and the criminal Courts where they are routinely required to provide sworn evidence. 2. Following his review of the removal order and the Statement of Reasons, Detective Superintendent Devaney considered the applicant's lack of integrity continued in both his report to Sergeant Tylor and in his investigation interview where he continued to assert that the red sedan was a short distance away from the Police vehicle when he activated the safety camera. Detective Superintendent Devaney determined there was "clear evidence" to the contrary including "both the objective evidence and the evidence of Constable Bernhardt". Applicant's affidavit 1. With reference to the various circumstances outlined in the applicant's affidavit where a Police Officer may exceed the posted speed limit and without the use of sirens and warning lights as provided by Rule 305 of the Road Rules 2008, Detective Superintendent Devaney considered Mr Platts had no lawful or reasonable excuse to be speeding at the time of activating the safety camera. He further contended Mr Platts had only demonstrated interest in the red sedan after activation, with a view to retrospectively manufacturing a lawful excuse. 2. Detective Superintendent Devaney disagreed with the applicant's proposition that he was driving in a safe and reasonable manner: As is consistent with the findings of the Commissioner of Police, he was travelling in excess of the posted speed limit without lawful excuse. 1. Detective Superintendent Devaney accepted that on occasions Police Officers may discuss incidents with one another, including circumstances where one of the Police Officers being informed did not witness the particular incident. Those circumstances are different to a situation where two Police Officers enter consistent, but untruthful, accounts of events with a view to concealing their own failures and misconduct: From my review of the removal order and the Statement of Reasons this type of behaviour is the misconduct that Mr Platts engaged in, and is indicative of his lack of integrity. 1. In relation to the applicant's affidavit evidence where he addresses the circumstances of other Officers who he believes have engaged in similar traffic offences in the course of their duties, but have not been subject to a removal order, Detective Superintendent Devaney considered the applicant did not commit a minor traffic offence. 2. Detective Superintendent Devaney contended the applicant's misconduct was significantly aggravated by the fact that he had created a false Police notebook entry and had subsequently been untruthful about the circumstances in which he was caught speeding, with a view to dishonestly attempting to persuade the Commissioner of Police that he had a lawful excuse to be speeding, when the objective evidence suggests no such excuse existed. These factors distinguish him from others. 3. Detective Superintendent Devaney considered the applicant's lack of integrity almost certainly resulted in his removal from the Police Force. 4. Detective Superintendent Devaney believed a Police Officer should be truthful and candid from the outset. Moreover, the role of Police Investigators is not to identify where an Officer may have been untruthful in a particular report and subsequently return the report for correction. Such views demonstrate a fundamental lack of insight by the applicant. Applicant's application for reinstatement 1. It was Detective Superintendent Devaney's opinion that given the evidence and investigation findings, he would have no confidence in the applicant's conduct or integrity if he was to be reinstated under his command: Based on my review of the section 181D order and Statement of Reasons, together with the fact that Mr Platts, in the Platts affidavit, continues to maintain what I consider to be an untruthful version of events, in my view, I could not trust him to satisfactorily conduct himself to the standards required from a Police Officer, nor meet standards of integrity that the NSW Police Force, and the community, demands from Police Officers. … I do not accept Mr Platts' account of events on 22 October 2014 to be truthful Mr Platts has clearly displayed a lack of integrity, which is a fundamental requirement and characteristic that must be exhibited by Police Officers. This demonstrates why Mr Platts could not return to PTC, or to policing duties in any capacity. 1. Detective Superintendent Devaney contended that if the applicant was to return to the NSW Police Force, he would occupy the rank of Senior Constable and in turn be eligible to apply for a Leading Senior Constable position. In his view, given the applicant's lack of integrity for his actions as outlined in the removal order and the Statement of Reasons, Detective Superintendent Devaney contended: … I would hold no trust in Mr Platts undertaking such a senior position, providing guidance and leadership to junior Officers. 1. In cross-examination, Detective Superintendent Devaney confirmed he was the applicant's commanding Officer. He also confirmed that prior to compiling his evidence in this matter, he: * Did not review the applicant's personnel file nor the favourable remarks contained in that file; * Had not been shown the applicant's personnel file; * Was aware of but had not seen the RMS CCTV footage; * Had seen and reviewed a copy of the Commissioner's Reasons and the s 181D order; * Had not seen a copy of the applicant's investigation report; and * Had visited the site of the incident during daylight hours but not at night. 1. In relation to the RMS CCTV footage subsequently shown to Detective Superintendent Devaney, the following exchange ensued: Q: So you accept, do you, that at the 0.00 second mark there is a light or something there, but you're not sure what it is? A: There's something there, yeah. There's something that fades. Q: Thank you. Just keep watching the video again, and as the Police car drives past, do you see it's a similar type of light once the red lights go out, that there's a white light after the Police car? A: There. NAGLE: For the record, this is at 10 seconds. Q: Do you see a white light there? A: There appears to be something there, yeah. Yes. Q: And do you accept that it's a similar white light to at the 0.00 second mark? A: it could be, yeah. I don't know. Q: Do you accept, sir, that at the 0.00 second mark there is a white light that appears on the screen that fades out pretty quickly? A: Yeah, there's something there, yes. 1. Detective Superintendent Devaney was shown a copy of Exhibit 8, a screenshot of the RMS CCTV footage at 0.00 second mark and Exhibit 9, a screenshot at the 0.04 second mark. He agreed that a white light had been "circled" in Exhibit 8. There was no white light visible in Exhibit 9. 2. He could not confirm whether the source of the white light identified in Exhibit 8 was a reflection from a road "cat eye" at 0.00 seconds. 3. Detective Superintendent Devaney was shown the RMS CCTV footage from the 8.0 seconds mark. The following exchange ensued: Q: So do you accept that at around the 8 to 9 second mark, that red lights, tail, or what appear to be tail lights, but red lights that are not those of the Police vehicle come into view further on down the road? A: There appears to be lights further ahead of the Police vehicle, the same time as there is an oncoming headlight. 1. Detective Superintendent Devaney subsequently observed the red lights appeared in the video footage at the 8 to 9 second mark. 2. Detective Superintendent Devaney was shown Exhibit 7, a screenshot at the 0.09 seconds mark and confirmed that he could see where red lights had been circled. He accepted that the red lights circled in Exhibit 7 were the same red lights that he had identified in the RMS CCTV video footage. 3. In relation to Exhibits 7, 8 and 9, Detective Superintendent Devaney observed at the 9.0 seconds mark, there was a car ahead of the Police vehicle: It would appear at 9 seconds you can see tail lights vehicle, yeah. 1. Detective Superintendent Devaney was referred to paragraph 9 of the investigation report where it was determined that the RMS CCTV footage did not show a vehicle in front of the Police vehicle at the time of camera activation: Q: Do you have a concern about paragraph 9 that says that there's no Police vehicle – there's no vehicle in front? A: Well, I suppose it's subjective and what the investigator was thinking, what they saw in front of – it's a bit hard to comment, really. I mean, I've agreed that in the distance there are what appears to be taillights, but I don't know what the investigator said – … Q: Do you accept that there are red lights at 9 seconds that appear in front of, or further down the road from the Police vehicle? A: Correct … Q: Paragraph 18 of the investigator's report says, "The version supplied by Bernhardt in the email dated 9 November is inconsistent with the RMS video footage of the intersection, footage obtained January 2015. The video footage does not show another vehicle in front of the Police vehicle". Now, the first car that we see go through the intersection is the Police vehicle, correct, on the video, go through the intersection? A: Yeah, that was what I was concentrating on, the Police vehicle. Q: … It's correct to say that there are no vehicles other than the Police vehicle near the intersection when the light goes off, that's right, isn't it? A: Yes, I would agree with that. 1. Detective Superintendent Devaney acknowledged Constable Bernhardt had been untruthful and subsequently took steps to correct his version of events concerning the incident. 2. In relation to the applicant's evidence that in or around October 2014, two Officers had activated a speed camera when transporting an intoxicated person in the rear of a Police vehicle, the following exchange ensued: Q: I'll cut to it. In your affidavit you frankly concede that a breach of the road rules simpliciter, that is, just a breach of the road rules, would not be – I'll be more specific – a breach of the road rules when doing 72 in a 60 zone, even though there's an intoxicated person in the back, that by itself, if you've got a decent work history, would not be enough to justify, in your opinion, one's removal from the New South Wales Police Force; do you accept that? A: In my opinion, yes, that's correct. Q: And you're here to give evidence on behalf of the New South Wales Police Force as a high-ranking Officer who is able to make these types of judgement calls? You don't sack people, but you're able to make a proper judgement on the matter. A: On a matter like that, yes. Q: Not a sackable offence. A: That alone, no. Q: No, it's the dishonesty that you take real issue with. A: That's correct. Q: And so therefore, if it was found that he was not dishonest in what he put in his notebook and following, that you wouldn't have a concern about him continuing to be a Police Officer, if he is found not to be untruthful; That's right, it must follow, sir. A: Well, that would be a matter for the Commissioner. Q: The Commissioner of Police? A: Yes. Q: But you're here as his representative, and your evidence is, just to clarify, that it's just 72 in a 60 zone, even if he breached the safe driving policy, that by itself isn't enough to sack him. A: Well, you'd be considering the history, but if they have a clean record, that alone, no, it would not be. 1. Detective Superintendent Devaney was unaware that Constable Bernhardt had been tasked to work with the applicant because he had been underperforming and the applicant was regarded as a proactive Police Officer. 2. Detective Superintendent Devaney was drawn to paragraph 42 of his affidavit where he stated the applicant only demonstrated interest in the red sedan after camera activation with a view to retrospectively manufacturing "such a lawful excuse". The following exchange ensued: Q: You weren't basing that opinion on all or any of the primary source material, that is either the footage, or the investigator's report, because you'd never seen them, is that right? A: That's correct. Q: You were just going off what's in the statement of reasons? A: That's correct. Q: So you didn't form that for yourself having undertaken a criminal investigation, you are just relying on what's in the statement of reasons. A: That's correct. 1. Detective Superintendent Devaney agreed that a supervisor would regularly check entries that an Officer had made in his or her notebook. In relation to Constable Bernhardt's notebook, he identified a signature and a number of ticks next to his account of the incident as set out in a photocopy extract under tab 4 annexed to the applicant's affidavit: Well, I can see "sergeant", and its possible that that is an endorsement by the sergeant, although I can't see if there's any – in general they will tick, or tick in blue pen, so it's black and white. 1. It was Detective Superintendent Devaney's evidence that it was his practice to ask Officers to resubmit Police (Godfrey) reports: Q: Have you ever asked an Officer to re-submit a report? A: Quite a lot, yeah, I would have made amendments and sent it back to them. 1. With reference to the applicant's contention that he was a proactive Police Officer, Detective Superintendent Devaney was directed to favourable comments concerning the applicant's conduct as a Police Officer from Sergeant Shane Robson, Police Transport Far North West Centre and Senior Constable Ian Campbell, North West Sector. 2. Sergeant Robson's opinion of the applicant was that he regularly performed to a high standard and was "good at targeting offenders wanted for various offences". Similarly, Senior Constable Campbell stated the applicant was "a very good proactive Policeman" with impressive monthly "stats". 3. Detective Superintendent Devaney agreed that being proactive was a positive trait for a Police Officer. 4. With reference to paragraph 33 of his affidavit where he says: The evidence shows that the red sedan was too far ahead of the Police vehicle for Mr Platts to have observed it clearly 1. Detective Superintendent Devaney agreed that this statement was based on the Commissioner's Statement of Reasons. The following exchange ensued: Q: Yes, so when you say "the evidence" you're not talking about you having reviewed the brief of evidence as a whole and made a determination as a criminal investigator, are you? A: No. 1. He agreed with the proposition that he should have prefaced his opinions set out in his affidavit with phrase, "based on the Statement of Reasons …" 2. Detective Superintendent Devaney confirmed that he did not review the contents of any alleged conversations between the applicant and Constable Bernhardt when preparing his affidavit. Rather, he "just worked off the Statement of Reasons". 3. Counsel for the applicant referred to his cross-examination of Constable Bernhardt whose unchallenged evidence was that in the period following 22 October 2014, he and the applicant did not discuss the matter again. That cross-examination of Constable Bernhardt included the following exchange: Q: So is it fair to say Sir there was never a detailed discussion after 22 October 2014 about the incident between you and Phil? A: Yes that's correct. … Q: You certainly never got together to try and collude your evidence did you? A: No, no we didn't. 1. Detective Superintendent Devaney subsequently confirmed that he understood what counsel had put to him when referring to that particular aspect of Constable Bernhardt's cross-examination. 2. There was no re-examination. Submissions 1. Both counsel provided detailed written submissions. In determining this application, I have given consideration to the all of evidence relied upon by the parties together with their written and oral submissions. 2. The thrust of those submissions was essentially reflected in evidence and subject at times to quite vigorous cross-examination, particularly in so far as the applicant was concerned. 3. The applicant seeks an order for reinstatement to the Police Force at the rank and incremental level held at the date of his removal without loss of pay. The applicant expressed no doubt that the employment relationship could be restored. 4. The Commissioner sought to rely on the terms set out in the s 181D order and the Statement of Reasons. The Commissioner was opposed to re-instatement and considered the applicant's overall conduct warranted his removal from the New South Wales Police Force. Accordingly, the appropriate course for the Commission to adopt was to dismiss the application on the grounds that the applicant's removal was not harsh, unreasonable or unjust. Case for the applicant 1. Section 181F(1)(b) requires the Commission to consider the case presented by the applicant as to why his removal is harsh, unreasonable or unjust. This review by the Commission is a hearing de novo where the applicant bears the onus to prove that his removal was harsh, unreasonable or unjust. 2. The applicant vigorously opposed all four allegations in his show cause response, affidavit evidence and in cross-examination. 3. It was the applicant's case that he was justified in speeding at 72 km/h "when he caught up to car XCF". That vehicle actually exists and accordingly he was not untruthful in his response to the investigation and the subsequent show cause response. 4. The investigation was flawed for three major reasons: * The investigator determined there was no car ahead of the Police vehicle. The RMS CCTV video footage at 0.00 seconds shows a "cat-eye" light up. This element of the applicant's evidence is not subject to any counterfactual put forward by the Commissioner of Police; * The investigator found that there was a car some distance ahead of the Police vehicle. However, investigator relied on a report prepared by Sergeant Coxon who determined that this vehicle would have been 185 metres ahead if it had maintained a constant speed. Sergeant Coxon assumed that at all times, both vehicles had maintained a constant speed. The evidence of the applicant and Constable Bernhardt was that the Police vehicle accelerated after activating the camera at the intersection of Romsey Street and Pacific Highway. Sergeant Coxon was not called to give evidence. Accordingly, it must be accepted that the Police vehicle was not travelling at a uniform speed; and * The investigator has passed over the untruths told by Constable Bernhardt and ignored his evidence where it corroborates the applicant's evidence. Constable Bernhardt's unchallenged evidence was that he and the applicant did not discuss the matter in any substantive way after 22 October 2014. Constable Bernhardt initiated steps to remedy his initial untruthful account of the incident. His sworn evidence put before the Commission "is his correct and true version". Constable Bernhardt's sworn evidence has served to corroborate the applicant's version of events following camera activation. Case for the Commissioner 1. The applicant has not discharged his onus of proving that his removal from the NSW Police Force was harsh, unreasonable or unjust. 2. The Commissioner relied upon the following grounds concerning the applicant's integrity and confidence to remain a Police Officer: * The applicant's conduct in contravening the Road Rules 2008 on 22 October 2014 and in maintaining an untruthful account to support that he had reasonable grounds for contravening the Road Rules demonstrates a lack of integrity where, as a sworn Police Officer he is required to comply with the law, both on and off duty. It is essential that Police Officers act with integrity at all times. The applicant has maintained his lack of candour in these proceedings; * The Commissioner no longer had confidence in the applicant's suitability to continue as a Police Officer on the ground of his lack of integrity and accordingly, removed him from his office as a Police Officer pursuant to s 181D. The applicant's removal for confidence is justified on any objective view of the facts and the soundness of the Commissioner's conclusion has been reinforced by the applicant's conduct of these proceedings; and * Serious questions arose during the course of proceedings which bring into question the applicant's lack of honesty, uprightness and sincerity. 1. The Commissioner found the applicant sought to conceal his misconduct through ongoing dishonesty in his notebook entry, the initial report and the Departmental Investigation interview: Allegation 1 On 22 October 2014, while driving a Police vehicle through the intersection of the Pacific Highway and Romsey Street in Waitara, and while on duty, the applicant drove at approximately 72 km/h in a 60 km/h speed zone, without lawful reason or excuse. Allegation 2 The applicant falsified an official Police record, being his official Police notebook, through a false notation recorded on 22 October 2014 – the notebook Entry. Allegation 3 The applicant was untruthful in his report dated 12 November 2014 regarding the events on 22 October 2014 – the Initial Report. Allegation 4 The applicant was untruthful in his departmental interview conducted by the NSW Police Force on 19 February 2015 – the Departmental Interview. 1. The Commissioner of Police ultimately determined that the applicant's behaviour set out in Allegations 1 to 4 contravened the following legislative and conduct requirements of Police Officers: 1. ss 7(a),7(b) and 7(h) of the Police Act; 2. Rule 20 of the Road Rules; 3. NSW Police Force Code of Conduct and Ethics; 4. NSW Police Force Safe Driving Policy; and 5. NSW Police Force Handbook. 1. The Commissioner was satisfied that the applicant had failed to demonstrate the minimum standards of candour and integrity expected of any Police Officer by actively seeking to discourage Constable Bernhardt from correcting the record and volunteering a truthful version of events, having initially joined the applicant in presenting a fabricated explanation for the applicant's speeding. 2. The applicant contends that his removal was unjust because he did not engage in any of the misconduct found by the Commissioner in his Statement of Reasons. Accordingly, the applicant must establish, by addressing positive evidence, that he did not engage in the misconduct set out in Allegations 1 to 4 of the Commissioner's Reasons or, that the Commissioner's findings in relation to those allegations are premised upon a misunderstanding or misapprehension of the facts. The applicant cannot discharge this burden through a bald denial of the misconduct. To do so would ignore the specific statutory regime in Part 9 of the Police Act. 3. The Review provided by s181F presumes that the Commissioner's reasons for the applicant's removal are justified. The regime has the effect of requiring an applicant to prove that his removal was unjust, that is, he did not engage in the misconduct as alleged. Any bald denial of the alleged misconduct and nothing more would be inconsistent with s 181F(1) and (2) and insufficient to prove that the conduct did not occur. 4. The Commissioner contended that the applicant's evidentiary case was limited solely to his own evidence and the surveyor's report. Put alternatively, the applicant's case was that he had a lawful excuse to travel 72 km/h in a 60 km/h speed zone on the night of the incident. 5. The applicant sought to rely on the fact that the version of events he recorded in his notebook, initial report and the Departmental investigation interview were true and correct. However, the applicant's evidentiary case is replete with inconsistencies between his version of events and incontrovertible or otherwise objectively reliable evidence. Consideration Proactive policing claim 1. The applicant asserts that he was at all times a proactive Police Officer. Indeed, Constable Bernhardt had been assigned to work with the applicant and take notice of the applicant's leadership role in proactive policing. 2. The Commissioner's show cause set out the following awards and complimentary remarks to be considered in the context of whether or not the applicant should be removed from the New South Wales Police Force: * 19 December 2012 – Commissioner's Sesquicentenary Citation; * 28 June 2010 – acknowledgement of good Police work – letter from Assistant Commissioner Clifford, North West Metropolitan Region Commander praising the work undertaken during Operation*** which required a search of the (name of site suppressed); * 30 October 2009 – acknowledgement of good Police work – correspondence from Inspector Davis, North West Region expressing his appreciation for the assistance provided by the applicant in relation to Strike Force *** (name suppressed); * 21 October 2009 – acknowledgement of good Police work – report received from Inspector Davis of the Penrith Region Enforcement Squad recognising the invaluable assistance that was provided by Constable Platts on 21 October 2009 affecting the arrest of (name suppressed), and subsequent canvass of the surrounding area which involved the seizing of several exhibits (names suppressed); * 18 June 2007 – Certificate of Appreciation – Commander's Certificate of Appreciation awarded to Probationary Constable Platts in recognition of his initiative in identifying a suspicious vehicle which led to the arrest and charge of two offenders; and * 5 February 2007 – complimentary remark – appreciative remarks from the Department of Education concerning the actions of Police on 5 February 2007 during a stabbing incident at (name suppressed) High School resulting in the arrest of the person responsible. 1. I also note that Senior Constable Brady responded to Q18 during the course of his interview on 12 March 2015 that "Senior Constable Platts is very efficient with his paperwork". 2. I have also considered the applicant's disciplinary record which was also attached to the show cause notice. Statutory context 1. The course the Commission must adopt in these proceedings is clearly defined in 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. (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 Commissioner's Statement of Reasons was firmly based on the Investigator's Report. 2. I am comfortable that the Commissioner of Police has complied with the provisions of s 181D(3) in terms of setting out the grounds on which the Commissioner does not have confidence in the applicant's suitability and affording him 21 days to make written submissions in relation to the proposed penalty action. 3. However, I am unable to be comfortably satisfied that the Commissioner has given full and proper consideration to the applicant's written submissions, the RMS CCTV footage and road log data and evidence of Constable Bernhardt that there was no collusion whatsoever between the applicant and himself concerning what each would write in their Police notebook. Investigation 1. The investigation determined the applicant drove a Police vehicle at approximately 72 km/h in a 60 km/h speed zone without lawful reasonable excuse. 2. The investigation report, subsequently adopted by the Commissioner of Police in his Statement of Reasons, determined that the 11 second difference between the two vehicles at the time the Police vehicle activated the speed camera meant, according to expert evidence, that the two vehicles would have been more than 160 metres apart. Accordingly, the Investigators and the Commissioner determined the expert evidence contradicted the applicant's version of events concerning the incident. Moreover, both the Investigators and the Commissioner also determined that the applicant had identified the vehicle as a red sedan from a distance of 30 metres, after the police vehicle had passed through the intersection. 3. In relation to Allegation 1, the applicant stated the following in his investigation interview dated 19 February 2015: Q 65: Can you describe what happened after the red light/speed camera was activated? A: I looked around and thought "what was that?" when I saw the flash of light. I looked for other vehicles that could have set the light off but nothing really stood out. I focused back on the car in front of me, I would say that I was about 30 metres away from it when I identified it, as a red sedan with the partial number plate of XCF. I wasn't gaining any ground on it so I simply slowed down and made the decision not to keep going on with the matter and kept driving towards the city. Q 67: At the point that the Police vehicle activates the red light/speed camera is it your recollection that the vehicle XCF is approximately 30 metres in front of the Police Vehicle? A: No, I was 30 metres behind it when I will read the rego. I can probably only see about 40 metres, a car rego from 40 metres maximum. Given that it was dark and I was only relying on my headlights I could say that I could only see a car rego about 30 metres in front of me. When I set the lights off I was still catching up to the car. Q 68: Can you recall the distance that the red sedan was from the intersection of Pacific Highway and Romsey Street Waitara (when) you were able to identify the partial registration XCF? A: I will start by saying no. I was not focusing on landmarks so it is hard to get an exact position on the road that I was. I would say that the whole incident took less than 10 seconds after the light activated to when I stopped noticing the vehicle. Q 69: Are you able to estimate the speed of the Police vehicle at the time that you decided to stop following the vehicle XCF? A: Without looking at this I estimate that I was doing 70 km/h to 80 km/h and then I slowed down to 60 km/h. 1. The investigator's report dated 10 July 2015 stated the applicant may be subjected to s 173 or a s 181D order. That Report contained the following evidence: 1. The RMS CCTV video footage was obtained in January 2015. The camera log data was received in March 2015 and after the applicant and Constable Bernhardt had been interviewed; 2. Neither the breakdown of the RMS CCTV video footage, the camera still images of the intersection reveal any other vehicles in front of the Police vehicle at the time of the offence; 3. The CCTV video footage shows the light bar (red and blue lights) of the Police vehicle was not activated whilst the vehicle travelled through the intersection of Pacific Highway and Romsey Street. Rule 305 of the Road Rules provides an exemption from displaying lights and sounding the siren alarm if in the circumstances it is reasonable to do so; 4. The camera log data shows the Police vehicle travelled south through the intersection at 72.8 km/h. The vehicle that travelled south through the intersection 11 seconds immediately prior to the Police vehicle was travelling at 60.6 – 60.7 km/h; 5. Enquiries with Traffic and Highway Patrol Officers who have been trained in time and motion calculations show that the 11 second difference between the Police vehicle and the vehicle travelling in front (using time/distance/speed calculations) would mean that at the time that the Police vehicle entered the intersection, the vehicle in front was 11 seconds ahead and approximately 185.4 metres if the vehicle in front maintained a constant speed; 6. Both the applicant and Constable Bernhardt made contemporaneous notes of the speed camera activation in their official Police notebooks: Senior Constable Platts records on page 11 of his official Police notebook "About 22:30 I was trying to catch up to red sedan partial rego XCF*** or crossing into my lane 1 on Pacific Highway just north of the Blue Gum Hotel. Trying to catch up to him so could speak to driver about driving. Car PTC 115. Constable Bernhardt records on page 26 of his official Police notebook "PTC 115 is driven by Platts. We observed veh rego XCF to come across in front of our lane near the Blue Gum Hotel Hornsby, possible camera activated. Both Officers recorded their notebooks the part registration of a "red" vehicle XCF that had "cut across" or had been "crossing into" lanes. 1. Following receipt of the RMS Warning Letter concerning the camera activation on 22 October 2014, Sergeant Tylor subsequently made verbal enquiries with Constable Bernhardt on behalf of the Safe Driving Panel. Constable Bernhardt confirmed the speed camera and the following email to Sergeant Tylor dated 9 November 2014: a vehicle pulled in front of us from the right-hand side and cut in front of us. The vehicle came from the intersection of the Blue Gum Hotel Hornsby. The driver Philip Platts (42291) accelerated to catch up to this vehicle and in doing so activated the camera at this intersection. We did not pursue this vehicle as we had an IP female in the rear of the cage at the time but we merely wanted to identify the driver of the other vehicle. We lost sight of the vehicle which turned left in the traffic ahead. 1. Constable Bernhardt also sent a copy of the above email to the applicant. As set out below, the Constable later made certain admissions concerning the truthfulness of the above account concerning the incident. 2. The Investigators subsequently determined that Constable Bernhardt's email to Sergeant Tylor on 9 November 2014 was inconsistent with the RMS CCTV video footage and does not show another vehicle in front of the Police vehicle at the intersection. Following a request from Sergeant Tylor, the applicant completed and submitted a report concerning incident on 12 November 2014 which in part states: I informed Sergeant Chapman of this incident after it occurred. 1. The applicant's report was signed by a supervisor, Acting Sergeant Brady Roberts (Hornsby satellite) on 12 November 2014 and a Duty Officer, Acting Inspector Mark Phillips (undated). 2. The applicant in his report described the vehicle as a red sedan bearing partial registration XCF***. He also described the manner in which the red sedan was being driven prior to the intersection: … XCF***appeared to cross from lane 2 into lane 1 as it negated a series of bends on the Pacific Highway. The red sedan drove in a manner as if it was cutting the corners and crossing into lane 1 from 2. From the time I first saw the red sedan it was gaining distance on my vehicle. 1. The Investigator's Report states the applicant's report to Sergeant Tylor describes that prior to the intersection of the Pacific Highway and Romsey Street, the applicant was able to read the part registration of the red sedan: From the distance I observed the car from (approximately 30 metres), I got the first 3 letters of the number plate only. 1. The Report described the applicant's intentions in relation to the vehicle prior to the intersection as follows: I intended on stopping this vehicle in order to speak to the driver about the offence of not drive (sic) in lane on multi-lane road … and do an assessment on the driver's sobriety … intentions of getting close enough to the red sedan so as I could read its number plate and possibly start a speed check on the red sedan's average speed before pulling the driver over. 1. The applicant's report described his actions prior to the intersection as follows: I sped up so I could carry out my intentions … I did not have my lights and sirens on as activating the lights and sirens would have ruined my chances of conducting a speed check on the red sedan. 1. Post camera activation, the Report states the applicant described his subsequent "actions" as follows: When the flash activated Constable Bernhardt and I looked at one another and I thought "What was that?" There were other cars on the road at the time and I was not sure who had set the camera off but I did not continue to follow the red sedan. 1. The Investigator's Report subsequently determined that the report of the applicant concerning the incident was inconsistent with the RMS CCTV footage of the intersection "as there is no vehicle sighted travelling through the intersection": The report of Senior Constable Platts is inconsistent with the RMS Road data in that the vehicle that travelled through the intersection prior to the Police vehicle did so at a speed of 60.6 to 60.7 km/h which means that it could not have been "gaining distance" on the Police vehicle prior to the intersection as described by Senior Constable Platts. The footage does not show a vehicle "approximately 30 metres" in front of the Police vehicle, the distance described by Senior Constable Platts as the distance that he was able to read the part registration of the red sedan from prior to the intersection and the red light/speed camera being activated. 1. The investigator's report determined the applicant's reference to "other cars on the road at the time" in his report was not supported by the RMS video footage: … the RMS video footage of the intersection does not show any vehicles in front of the Police vehicle near the intersection at the time of the camera activation. The footage does not show a vehicle "approximately 30 metres" in front of the Police vehicle, the distance described by Senior Constable Platts as the distance that he was able to read the partial registration of the red sedan from, prior to the intersection and the red light/speed camera being activated. 1. The report states that the only other vehicle shown on the RMS footage near the Police car at the time of camera activation was a vehicle travelling behind it and it did not enter the section until after activation and the Police vehicle was seen to brake. 2. In relation to the applicant's recollection that "he informed Sergeant Chapman of this incident after it occurred", the Investigator's Report noted Sergeant Chapman had no recollection of this conversation or knowledge of the camera activation. Accordingly, it was determined that neither version "is preferred as to whether Sergeant Chapman was informed …" Constable Bernhardt interview 1. Constable Bernhardt was interviewed on 13 February 2015 in relation to the specific allegation concerning the speed camera activation. The Investigators considered the following answers provided by Constable Bernhardt were not consistent with the RMS footage as there were no "truck headlights" in that footage as claimed: A 14: There is no entry about possible camera activation because we thought it may have been truck headlights from behind or beside us at this time. A 50: There was some light through there and I wasn't sure if it was a camera or a truck. 1. The Investigators also considered the following answer provided by Constable Bernhardt was also inconsistent with the RMS road log data which showed the vehicle that travelled through the intersection in front of the Police vehicle did so at a speed of 60.6 km/h, a speed slower than the Police vehicle: A 25: I remember looking out the left window and I was also keeping an eye on the female in the back. I've looked forward before we get to the intersection and I see a red car and … in the lane in front of us … it was going quicker than us …I thought it had come out of the road on the hotel side because it had not come past us. 1. The Investigator's also noted that Constable Bernhardt's answer to Q 25 was inconsistent with the version he provided to Sergeant Tylor on 9 November 2014 where he stated: vehicle pulled in front of us from the right-hand side and cut in front of us. 1. Of course, the above statement was corrected in Constable Bernhardt's second interview dated 4 May 2015. 2. Moreover, the Investigators determined Constable Bernhardt's response to Q 25 that he: was looking out the left window then looking forward to the intersection to see the red sedan in the lane in front 1. was not supported by the RMS Road data which has recorded the vehicle in front 11 seconds ahead of the Police vehicle based on the speed/distance/time calculations conducted by Sergeant Coxon who determined that vehicle was approximately 185.4 metres ahead of the Police vehicle if it maintained a constant speed. 2. The Investigator's determined that Constable Bernhardt's response to Q 28 where he was asked to describe the distance between the Police vehicle and when he first sighted the red sedan was inconsistent with the RMS footage. The Investigators determined that the RMS footage does not show another vehicle in front of the Police vehicle and the RMS road log data has the vehicle in front 11 seconds and approximately 185.4 metres ahead: A 28: I am not too sure. The car wasn't straight in its lane. The best that I can explain is that he is in front of me and he is correcting in the lane. Maybe 10 metres or so I don't know. … myself and Philip are both looking at the same car which is in front of our truck on the other side of intersection now … Applicant's interview 1. The applicant was interviewed by the Investigators on 19 February 2015. In relation to the specific allegation concerning the speed camera activation, the applicant provided the following response to Q 38: A 38: I was following a car on the Pacific Highway that was the car that I noticed and left its lane so went to catch up to it, that's when the camera was set off. When that happened I thought "what was that?" and I am pretty sure that I said that out aloud as well. I wasn't too sure which vehicle on the road had set the camera off so I started looking around and in the rear view mirrors to see if other vehicles had entered the intersection. When I turned my attention back to the car I got closer to it and that's when I identified it as a red sedan the partial number plates of XCF. 1. The Investigator's Report determined that the applicant's response to Q 38 was inconsistent with his written report dated 12 November 2014 where he stated the vehicle's registration number was obtained from a distance of "approximately 30 metres" and prior to the intersection. The response was also inconsistent with his written report where he had said that following camera activation, "I was not sure who had set the camera off but I did not continue to follow the red sedan." 2. Moreover, the Investigators also noted that the applicant had estimated: the alleged red vehicle as being 30 metres away from him when he identified the partial registration of XCF shortly after the speed camera activation. 1. They considered this response was inconsistent with the following answers given in the course of his investigation interview on 19 February 2015: A 67: … was 30 metres behind it when I read the rego. I can probably only see about 40 metres, a car rego from 40 metres maximum. A 68: I would probably say that the whole incident took less than 10 seconds after the light activated to when I stopped noticing the vehicle. 1. The Investigators relied on the statement prepared by Sergeant Tylor dated 18 March 2015 where he made the following observations: a vehicle travelling at 60 km/h will be travelling at 16.66 metres per second; and a vehicle travelling at 72 km/h would be travelling at 20.00 metres per second. 1. The Investigators also relied on the statement of Sergeant Coxon dated 14 May 2015, previously explained above, who calculated that the 11 second gap between the Police vehicle (if it maintained its speed) and the vehicle ahead would mean that the other vehicle would have been approximately 185.4 metres ahead of the Police vehicle at the time of activation. Sergeant Coxon qualified this observation and stated that the distance may have been greater if the vehicle ahead increased its speed after passing through the intersection. 2. A further qualification made by Sergeant Coxon was that if both vehicles had maintained their speed for 10 seconds, that is, the period of time the applicant nominated in his answer to Q 68, the vehicles could be not less than 151 metres apart, a distance where a registration plate would not be clearly visible to the human eye. 3. In response to a question in relation to the applicant's duty of care towards the intoxicated female being conveyed to Central Station on the night of the incident, the applicant stated: A 78: If I was to try and deal with all these incidents I would not be properly dealing with the IP that I had as they are all needy when it comes to needing drinks of water, trips to the toilet, wanting a smoke and waiting for their McDonald's meal. 1. [REDACTED] 2. Senior Constable Roberts was interviewed on 12 March 2015 concerning certain comments he wrote on the applicant's report to the effect that no action should be taken and an exemption should be considered under Rule 305. He informed the Investigators there was no reason for him to suspect anything untoward. He therefore took the decision he did based on the applicant's response and the information available to him at the time. 3. On 4 May 2015, Constable Bernhardt approached the Acting Commander Police Transport Command North Central, Acting Superintendent Eardley and sought to provide further information concerning the camera activation incident on the grounds that he believed there were inconsistencies in the answers he gave during his interview on 13 February 2015. 4. Constable Bernhardt subsequently sought to correct the untruthful answers previously provided and sought a further interview to facilitate. 5. In relation to a question concerning what occurred prior to the intersection and the camera activation, Constable Bernhardt replied as follows: A 36: I did not think that it had been a camera activation. I thought we had been driving normally … 1. Constable Bernhardt described what occurred after the camera activation in the following terms: A 31: … After we pass through the intersection and the camera goes off the (Police) vehicle accelerated hard and it caused me to be pulled back a bit and it gave me concern to look forward. A 32: … There was a car far ahead of us it took a few seconds to catch up. A 37: … Philip accelerated a second or two after the camera activation. I can remember looking around at what may have caused the flash, maybe a truck on the side. I look to the right I could not see anything. But then feel the truck accelerate hard and I'm not sure why he accelerated. 1. In relation to the red sedan, Constable Bernhardt provided the following answers: A 19: … I did not have any reason to believe that the vehicle in front that Philip had an interest in was in fact a drunk driver. A 45: … there is a few seconds before I can see the vehicle ahead at the first corner. It was not until the Police vehicle has gone around the corner that I am able to see that it is a red vehicle. We go through the bend and catch up to the car and I started to write part of the rego down and the truck was just normal speed. Philip appears not to show any more interest in the car. A 59: I did not see the vehicle commit any traffic offences before or after the intersection. 1. The investigators further observed that it was not until the end of the interview that Constable Bernhardt showed contrition for the version that he had initially provided. He subsequently gave the following answers concerning his notebook entry: A 49: I thought that I was doing the right thing by making the entry. I should have just done nothing at all. I did a stupid thing by writing it down. A 54: I said to Philip later on the way down to Central, "I will say that the car came from the Blue Gum Hotel". Q 55: Can you recall why you said this to Philip? A 55: Just because of his comment about the camera that had been activated. A 62: And at the time I did not know what to do because I had lied in the email. A 63: It is very clear that I've written that a vehicle has cut us off. It is obviously not the truth. A 64: I just thought that I was helping Philip. A 65: When I received the call from Sergeant Tylor, I was aware that there had been a definite camera activated. I have made a mistake in the email for not telling the truth. I'm sorry for wasting everyone's time. I honestly regret not coming forward before this. A 66: No, I realised that I had lied and felt that there was no way that I could get out of it. It was not until I spoke to Acting Inspector Tylor and he said we could fix this. Investigation Findings 1. The investigation findings were set out in the Investigator's Report and for convenience are paraphrased below: Findings Issue 1: Unnecessary Speeding Sustained I base my decision for this finding on the following facts: Senior Constable Platts failed to adhere to the posted speed of 60 kilometres per hour by driving … at 72 kilometres per hour, as detected by an RMS speed/red light camera at the intersection of Pacific Highway and Romsey Street, Waitara. The Investigators relied on the RMS footage and road log data which showed the vehicle that was ahead of the Police vehicle at the time of camera activation was 11 seconds and approximately 184.5 metres ahead. Constable Bernhardt admitted during his 4 May 2015 interview at A 50 that prior to the intersection, he had not noticed the red sedan nor had he seen the red sedan commit any traffic offences. The Investigators noted the exemptions for drivers of Police vehicles pursuant to ss 305 – 307 of the Road Rules. However, it was determined that Rule 305 does not apply because the warning signals of the Police vehicle were not activated at the time, there was no reasonable justification for them not being activated and there was no justifiable policing purpose for the traffic violation. [REDACTED] The Investigators formed the conclusion that the investigation had shown that the version of both Senior Constable Platts and Constable Bernhardt relies on a fabricated set of circumstances in order to create a scenario where Rule 305 of the Australian Road Rules would have applied. Issue 2: Untruthfulness/lying/dishonesty – Lying to investigator/supervisor conducting inquiries Sustained I base my decision for this finding on the following facts: Senior Constable Platts was untruthful for dishonestly outlining a set of circumstances in his initial report to Sergeant Tylor on 12 November 2014. The circumstances related to the manner in which a red sedan with partial registration XCF had been driven prior to the intersection of Pacific Highway and Romsey Street, Waitara. Senior Constable Platts' original report to Sergeant Tylor mentions he obtained the part registration of vehicle XCF*** from about 30 metres behind. It was travelling south on the Pacific Highway, Waitara, after noticing a traffic offence. In this version, he obtains the part registration XCF***prior to passing through the intersection of the Pacific Highway and Romsey Street, Waitara, and subsequently setting off the speed camera due to travelling at 72 kilometres per hour in a 60 kilometres per hour zone. He also describes that the vehicle XCF "was gaining distance" on the Police vehicle prior to the intersection. RMS footage and road data for the intersection do not support the version provided by Senior Constable Platts in his report as there was no vehicle shown in the footage in front of the Police vehicle as described by Senior Constable Platts and the RMS road data does not support a vehicle "gaining distance" on the Police vehicle as described in the report. On further investigation, Senior Constable Platts continued to be dishonest by lying to Investigators during the interview with Senior Sergeant Holmes and Chief Inspector McBeath on 19 February 2015 about the manner of driving of vehicle XCF***, in trying to justify why he was exceeding the posted speed limit in order to obtain the registration number of a vehicle for a minor traffic violation. In his record of interview about the matter, Senior Constable Platts recalls that he obtained the registration of the vehicle a short time after the speed camera activation. This is inconsistent with the version provided in his initial report and RMS data which has proven that the vehicle in front of the Police vehicle travelled through the intersection 11 seconds prior, and would have been approximately 185.4 metres ahead of them (provided that he maintained a consistent speed at the time that the camera activated). Taking Senior Constable Platts' version that he observed the vehicle in front for the next ten seconds, the Police vehicle would have only reduced the distance between it and the vehicle in front by approximately 31.7 metres, leaving a remaining gap of approximately 151 metres. This distance would be even greater if the vehicle in front accelerated after it passed through the intersection at 60.6 kilometres per hour or the Police vehicle reduced its speed (which is consistent with the RMS footage as PTC 115 brake light(s) illuminate after camera activation). As identified by Sergeant Coxon, Traffic and Highway Patrol, it would have taken approximately 43 seconds for the Police vehicle to close the gap to 40.4 metres, the distance Senior Constable Platts nominates as the distance that he would be able to read the registration plate. The answers provided by Senior Constable Platts are not supported by the RMS video footage or RMS road data. I am reasonably satisfied that based on the available holdings including RMS video footage of the intersection, RMS still images, RMS road data and the second interview with Constable Bernhardt that Senior Constable Platts has been untruthful in the report to Sergeant Tylor and continued to be untruthful during the interview with Senior Sergeant Holmes and Chief Inspector McBeath about the circumstances that led to the red light/speed camera activation. As this is a serious complaint allegation there is a higher level of probability required to reach sustained findings (Briginshaw v Briginshaw 1938 60 CLR 336). I am satisfied that the higher level has been reached and in coming to this sustained finding that video footage and data has been relied upon. Issue 3: Untruthfulness/lying/dishonesty – Falsifying official records Sustained I base my decision for this finding on the following facts: Senior Constable Platts has falsified an official record by creating a notebook entry about a traffic offence involving vehicle XCF*** in official Police notebook F562615. The notebook entry is inconsistent with RMS footage of the intersection which does not show a vehicle in front of PTC 115. The notebook entry is also inconsistent with RMS road data which proves that the vehicle ahead of PTC 115 was 11 seconds or approximately 185.4 metres ahead of PTC 115. The notebook entry is also inconsistent with the version provided during the second interview with Constable Bernhardt where he describes (A 31) that after the camera activation senior Constable Platts accelerated. As this is a serious complaint allegation there is a higher level of probability required to reach sustained findings (Briginshaw v Briginshaw 1938 60 CLR 336). I am satisfied that the higher level has been reached and in coming to this sustained finding that video footage and data has been relied upon. Issue 4: Failure to comply with operational procedures, standing orders or Commissioner's directives Sustained I base my decision for this finding on the following facts: [REDACTED] Senior Constable Platts exceeded the speed limit without any reasonable/lawful justification, did so without the activation of emergency warning devices and [REDACTED]. Taking into account the manner in which vehicle XCF***was driven prior to the intersection of Pacific Highway and Romsey Street Waitara, as described by Senior Constable Platts, was a fabrication to avoid departmental action regarding the excessive speed. There is no other justification for Senior Constable Platts driving at 72 kilometres per hour in a 60 kilometres per hour zone with a person who is not a Police Officer in the vehicle. OTHER ISSUES Supervisory issues: Managerial issues: Organisational issues: NSWPF policies including [REDACTED], the Code of Practice for CRIME and the Police Handbook are not specific about performing other duties such as conducting "speed checks" and vehicle stops whilst conveying a prisoner. At the discretion of the Commander, Police Transport Command, it may be a consideration that proposed amendments are put forward via the chain of command to include [REDACTED]. Another organisational issue is the GIPA application made by Senior Constable Platts after the interview conducted with him on 19 February 2015. Whilst access to the RMS footage and other related documents did not impact on this investigation, there is a potential access to information through GIPA to impact on other NSWPF internal investigations. Commissioner's Statement of Reasons 1. I have carefully reviewed the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force as set out above in considerable detail. 2. The Statement of Reasons that accompanied the applicant's s 181D(1) order comprised 12 pages and sets out all of the documents and other evidentiary material upon which the Commissioner of Police relied upon in determining that the Commissioner does not have confidence in the applicant's suitability to continue as a member of the New South Wales Police Force. 3. In adopting the findings of the investigation report without question, the Commissioner's Statement of Reasons falls into error. Detective Superintendent Devaney also adopted the Statement of Reasons without question. 4. The Statement has addressed the applicant's response to the four allegations put before him. Those allegations were both articulated in the Statement of Reasons and well ventilated by respective counsel during the course of proceedings. However, on the evidence before the Commission, both the investigation report and the Commissioner's Statement of Reasons are flawed. 5. Section 181F(1)(a) is a mandatory provision which requires the Commission to consider the Statement of Reasons for the decision to remove the applicant from the NSW Police Force. The Statement of Reasons must explain why, following careful analysis of all the material available to the Commissioner, the decision to remove the applicant was made. In that regard, I adopt the observations of Kite AJ as he then was in Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]: The adequacy of the content of the reasons is to be measured in this context. The essence of the reasons is to explain why the decision has been taken. It is not necessary, in the reasons, expressly to negate every possibility: cf Lawrance at [274]-[276]. It remains open to the applicant in the review to establish that the removal was harsh by reason of a failure to adopt an alternative and appropriate sanction. 1. The Commissioner of Police has considered the allegations put against the applicant and determined that he did not have confidence in the applicant's suitability to remain a member of the NSW Police Force. 2. Following the investigation report, the Commissioner made findings that the applicant's "conduct" and "integrity" was contrary to the provisions of the Police Act, the Road Rules 2008, the NSW Police Force Safe Driving Policy, the NSW Police Force Code of Conduct and Ethics and the NSW Police Handbook in force at the time of the incident. 3. The Commissioner's Statement of Reasons which accompanied the s 181D order also contained the following statement: I am satisfied that the available evidence demonstrates that you travelled at speed without legal reason or excuse and risked, not only your own safety but that of your colleague … passenger and other members of the public. 1. It is an undeniable fact that the applicant was a proactive Policeman and had received a number of commendations in recognition of that positive attribute. Indeed, Constable Bernhardt was rostered to work with the applicant because he required some assistance to improve his policing capability. It was Detective Superintendent Devaney's evidence that Constable Bernhardt had been underperforming and the applicant was regarded as a proactive Police Officer. 2. It was Constable Bernhardt's evidence that he had only worked at Hornsby for a few shifts in the weeks prior to the incident and he was not familiar with the Hornsby area at that time. Nor, according to his evidence in cross examination, had he previously driven along the Pacific Highway in the vicinity of the incident. 3. Following the initial Directions hearing and throughout these proceedings, the applicant has sought to defend his position with every vigour that he could possibly muster. He was only afforded legal representation by the Police Association shortly before the hearing commenced. Applicant's case - why removal was harsh, unreasonable or unjust and the case presented by the Commissioner in response 1. The applicant's case in support of the proposition that his removal from the NSW Police Force was harsh, unreasonable or unjust was that the removal order was harsh because of its consequences on his personal and financial circumstances. The order was unjust and unreasonable because it was based upon a set of allegations put against him that could not be sustained on a proper analysis of the available evidence. 2. In essence, the determination of whether the decision to remove the applicant was harsh, unreasonable or unjust will depend on the case brought before the Commission. The onus falls on the applicant to show why the Commissioner's decision to remove him as set out in the Statement of Reasons, was harsh, unreasonable or unjust. 3. Consideration of the case presented by the Commissioner of Police in answer to the applicant's case is also set out below in some detail. Allegation 1 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 22 October 2014, while driving a Police vehicle on duty, you travelled at approximately 72 km/h in a 60 km/h speed zone without lawful reasonable excuse. 1. The applicant concedes that he drove through the intersection of Pacific Highway and Romsey Street on the night of the incident and activated a speed camera which recorded the Police vehicle was travelling at 72 km/h in a 60 km/h speed zone. RMS subsequently issued a warning letter on the grounds that the speed camera in question had only been recently installed. 2. The Commissioner expressed concern that the applicant considered his excessive speed of 72 km/h at the point of camera activation did not pose an actual or potential danger to himself, other occupants of the vehicle or members of the public who may have been in the vicinity of the incident at the time. The Commissioner considered the applicant should have been acutely aware of the adverse consequences that could arise when a vehicle speeds. Detective Superintendent Devaney 1. In preparing his evidence, the Commissioner's second witness in these proceedings, Detective Superintendent Devaney, relied exclusively on the Commissioner's Statement of Reasons to support the propositions made and the conclusions reached to underpin the s 181D removal order. Detective Superintendent Devaney did not review the applicant's personnel file nor had he reviewed the investigation report or the RMS CCTV footage. 2. Detective Superintendent Devaney considered the applicant had no lawful or reasonable excuse to be speeding at the time he activated the speed camera. However, it was Detective Superintendent Devaney's evidence that speeding in the range of 10 km/h to 15 km/h above the posted speed limit was "not a particularly serious matter" in the context of other criminal and traffic offences. 3. The applicant's traffic offence was not at the higher end of objective seriousness. Detective Superintendent Devaney stated he would not expect that a Police Officer would be removed solely on the grounds of driving 12 km/h in excess of the speed limit. The following exchange ensued: Q: I'll cut to it. In your affidavit you frankly concede that a breach of the road rules simpliciter, that is, just a breach of the road rules, would not be – I'll be more specific – a breach of the road rules when doing 72 in a 60 zone, even though there's an intoxicated person in the back, that by itself, if you've got a decent work history, would not be enough to justify, in your opinion, one's removal from the New South Wales Police Force; do you accept that? A: In my opinion, yes, that's correct. Q: And you're here to give evidence on behalf of the New South Wales Police Force as a high-ranking Officer who is able to make these types of judgement calls? You don't sack people, but you're able to make a proper judgement on the matter. A: On a matter like that, yes. Q: Not a sackable offence. A: That alone, no. Q: No, it's the dishonesty that you take real issue with. A: That's correct. Q: And so therefore, it was found that he was not dishonest in what he put in his notebook and following, that you wouldn't have a concern about him continuing to be a Police Officer, if he is found not to be untruthful; That's Right, It must follow, sir. A: Well, that would be a matter for the Commissioner. Q: The Commissioner of Police? A: Yes. Q: But you're here as his representative, and your evidence is, just to clarify, that it's just 72 in a 60 zone, even if he breached the safe driving policy, that by itself isn't enough to sack him. A: Well, you'd be considering the history, but if they have a clean record, that alone, no, it would not be. 1. Notwithstanding the above viewpoint, Detective Superintendent Devaney, relying solely on the Commissioner's Statement of Reasons, determined the applicant was not driving in a safe and reasonable manner. 2. In relation to his evidence that the applicant sought to manufacture a lawful excuse, Detective Superintendent Devaney confirmed his opinion had been formed solely on the basis of the Statement of Reasons. He had not seen the RMS CCTV footage or the Investigator's Report. The following exchange ensued: Q: You weren't basing that opinion at all on any of the primary source material, that is either the footage, or the Investigator's Report, because you'd never seen them, is that right? A: That's correct. Q: You were just going off what's in the statement of reasons? A: That's correct. Q: So you didn't form that for yourself having undertaken a criminal investigation, you are just relying on what's in the statement of reasons. A: That's correct 1. When shown the RMS CCTV footage, Detective Superintendent Devaney identified that at the 0.00 and 10.00 second marks, a white light appears on the screen both before and after the vehicle's brake lights go out. The following exchange ensued concerning the CCTV footage from the 8.0 second mark: Q: So do you accept that at around the 8 to 9 second mark, that red lights, tail, or what appear to be tail lights, but red lights that are not those of the Police vehicle come into view further on down the road? A: There appears to be lights further ahead of the Police vehicle, the same time as there is an oncoming headlight. 1. The Detective Superintendent subsequently observed and confirmed that red lights appear at the 8.00 to 9.00 second mark and in a screenshot taken at the 9.00 second mark. 2. In relation to paragraph 9 of the investigation report which determined that the RMS CCTV TV footage did not show a vehicle in front of the Police vehicle at the time the camera was activated, the following exchange ensued: Q: Do you have a concern about paragraph 9 that says that there's no Police vehicle – there's no vehicle in front? A: Well, I suppose it's subjective and what the investigator was thinking, what they saw in front of – it's a bit hard to comment, really. I mean, I've agreed that in the distance there are what appear to be tail lights, but I don't know what the investigator said – … Q: Do you accept that there are red lights at 9 seconds that appear in front of, or further down the road from the Police vehicle? A: Correct … Q: Paragraph 18 of the investigator's report says, "The version supplied by Constable Bernhardt in the email dated 9 November is inconsistent with the RMS video footage of the intersection, footage obtained January 2015. The video footage does not show another vehicle in front of the Police vehicle". Now, the first car that we see go through the intersection is the Police vehicle, correct, on the video, go through the intersection? A: Yeah, that was what I was concentrating on, the Police vehicle. Q: … It's correct to say that there are no vehicles other than the Police vehicle near the intersection when the light goes off, that's right, isn't it? A: Yes, I would agree with that. Constable Bernhardt 1. In cross-examination, Constable Bernhardt made the admission that the Commissioner's legal representatives had prepared his affidavit evidence or at least were substantially involved in its preparation. 2. The affidavit evidence of Constable Bernhardt, the Commissioner's witness, in relation to Allegation 1 was as follows: As the Police vehicle travelled through the intersection of the Pacific Highway and Romsey Street in Waitara, I observed a flash of light from outside the Police vehicle. Just before I observed the flash, I had been looking at the buildings outside of the Police vehicle to my left and occasionally looking over my right shoulder to supervise intoxicated passenger in the rear of the vehicle. Upon observing the flash, I looked around for its source. (emphasis added) 1. The above description of what occurred immediately prior to camera activation was confirmed in cross-examination. It is therefore clear that Constable Bernhardt was not paying any attention whatsoever to what was in front of the Police vehicle while it was travelling along the Pacific Highway prior to camera activation at the Romsey Street intersection. 2. Constable Bernhardt's admission that he was not paying attention and looking out left side of the vehicle towards the shops or checking the state of the intoxicated person in the cage behind was also put to the Investigators during the course of his second interview on 4 May 2015 at Q's 25 and 26. At Q24, Constable Bernhardt stated that he could not recall seeing the red sedan at the point of camera activation. In response to Q 25, Constable Bernhardt stated: I was just looking to the buildings on the left hand side, the shops out the window". 1. At Q27, Constable Bernhardt was asked to clarify why the red sedan was not within sight prior to the intersection of Pacific Highway and Romsey Street: The vehicle did not overtake us and I was only aware of the car when Philip accelerates after the car. 1. At Q36, Constable Bernhardt was asked "what happened" after the camera had activated: I looked ahead and I have seen that traffic light was green so I thought that it could not have been a red light camera. I did not think that it had been camera activation. I thought that we had been driving normally. 1. However, Constable Bernhardt stated at Q31 that after camera activation, he felt the Police vehicle accelerate slightly: I felt the car accelerate slightly, it did not cause me to worry because after we passed through the intersection and the camera goes off the vehicle accelerated hard and it caused me to be pulled back a bit and it gave me concern to look forward. 1. At Q50, Constable Bernhardt was asked why he thought the applicant accelerated after the camera was activated. In response, he stated: I am not sure that his face was just looking ahead. He was looking at the car, he did not write down anything and he did not ask me about it. 1. At Q32, Constable Bernhardt was asked to recall what he saw when he began to look forward of the Police vehicle: I honestly can't remember there was a car far ahead of us and it took a few seconds to catch up. 1. At Q43, Constable Bernhardt agreed with the proposition that the applicant "only showed interest in the red coloured sedan after the camera activation". He also considered that it took a few seconds after the applicant accelerated to notice the vehicle ahead: When I first noticed it was far ahead, we go through the camera and I feel the Police vehicle accelerate and then there is a few seconds before I can see the vehicle ahead at the first corner. It was not until the Police vehicle has gone around the corner that I'm able to see that it is a red vehicle. We go through the bend and catch up to the car and I started to write part of the rego down and the truck was just normal speed. Philip appeared not to show any more interest in the car. 1. He subsequently informed the Investigators that when he saw the red sedan, he began writing down its partial registration. It appeared to be driving at a normal speed. He did not observe the vehicle cutting into another lane. 2. It was Constable Bernhardt's evidence at the second interview at Q33 that nothing occurred to make him think the applicant was following a vehicle: No we were not really talking. We were just heading down to Central. 1. In cross examination, Constable Bernhardt admitted that prior to the incident, he had never driven along "that stretch" of the Pacific Highway. 2. Constable Bernhardt stated he considered the Police vehicle appeared to be driving normally prior to Romsey Street. Following camera activation, the Police vehicle braked slightly then accelerated. He agreed with the proposition that post camera activation, the Police vehicle was not doing a uniform speed: Q: PTC115 was not doing the same speed for 10 seconds after the lights, as you felt it accelerate, correct? A: That's right, yes. 1. Constable Bernhardt could not recall the applicant's "demeanour" or any conversation between the applicant and himself prior to the Romsey Street intersection. Post camera activation, Constable Bernhardt considered the applicant's "demeanour" was focused on the car in front of the Police vehicle and it appeared that the Police vehicle was "trying to catch up to the vehicle" immediately in front. 2. During the course of his first interview on 13 February 2015, Constable Bernhardt at Q52 could not recall what the applicant had said to him at the time of the camera activation: Q: Do you recall what Constable Platts said at the time of activation of the camera flash at the intersection of Pacific Highway and Romsey Street? A: No, we just carried on driving and focused on the lady in the back. 1. Constable Bernhardt confirmed that in answering Q50 put to him during his 4 May 2015 interview, he had said the applicant was looking ahead at the car. He also confirmed that in his affidavit evidence, he had stated the applicant had shown an interest in the car ahead. 2. It was also Constable Bernhardt's evidence that prior to camera activation no conversation between the applicant and himself took place nor was he in a position to observe the applicant's demeanour. 3. In relation to the RMS CCTV footage and road data, Constable Bernhardt agreed that a red vehicle passed through the Romsey Street intersection 10.43 seconds prior to the Police vehicle: … once we've come around the corner and we'd actually caught up to the car … I could see the registration. 1. Constable Bernhardt recorded the first three letters of the red sedan's number plate XCF on his own initiative and was not prompted in any way by the applicant to do so. 2. When pressed that the Investigator's Report suggested there was no vehicle XCF on the Pacific Highway at the time of the incident, the following exchange ensued: Q: You've just nodded. Is that a "Yes"? A: That's what I believe was the initial investigation. 1. Critically, the clear and unequivocal evidence of Constable Bernhardt was that a red sedan with a partial registration number plate XCF did exist and was some distance in front of the Police vehicle at the point of camera activation: Q: There was definitely a red car, XCF … A: Yes. Q: And if an investigator or another member of the New South Wales Police Force had come to a conclusion or view that XCF was a fabrication and did never exist, you would agree with that, wouldn't you? A: I would disagree, yes. 1. Shortly stated, Constable Bernhardt's evidence strongly suggests he was oblivious to anything that occurred prior to camera activation at the Romsey Street intersection. His mind was simply elsewhere and unlike the applicant, he was not focused on the road ahead of the Police vehicle. 2. The Investigators also sought to rely on Constable Bernhardt's admission during his 4 May 2015 interview at A50 that prior to the intersection, he had not noticed the red sedan nor had he seen the red sedan commit any traffic offences. Constable Bernhardt was, as determined above, not paying attention and was blind to what was occurring in front of the Police vehicle at the time of the incident. 3. Constable Bernhardt's evidence that he not seen the red sedan prior to camera activation does not support the Commissioner's proposition that there was no red sedan that crossed the lane lines some time immediately prior to the intersection of the Pacific Highway and Romsey Street. 4. Constable Bernhardt frankly admitted he was not familiar with the Pacific Highway in the vicinity of the incident. 5. Moreover, the overwhelming evidence confirms Constable Bernhardt was distracted prior to camera activation and he was simply looking out of the left side window of the Police vehicle observing various motor vehicle dealerships and other businesses rather than looking ahead. It must follow that the investigator's conclusion that prior to the intersection of the Pacific Highway and Romsey Street, Constable Bernhardt had not noticed the red sedan nor had he seen that "vehicle commit any traffic offences", can only be based on Constable Bernhardt's evidence that he was distracted and not paying attention at that time. 6. From the outset, the applicant's case commencing with his notebook entry on 22 October 2014 has been that he sought to catch up to a red sedan XCF*** for crossing into lane 1 on the Pacific Highway North of the Blue Gum Hotel so he could speak to the driver. 7. There is no eyewitness evidence to contradict the applicant's contention that he observed the red sedan commit a traffic offence by crossing the dividing line between lanes on the Pacific Highway on the night of the incident. Constable Bernhardt was not paying any attention whatsoever to what was occurring in front of the Police vehicle immediately prior to camera activation. 8. For his part, the applicant concedes that the manner of his driving on the night of the incident does not fall within the exemption provided by Rule 305(1)(b) of the Road Rules. The Police vehicle was not displaying blue/red flashing lights or sounding its sirens. To do so would, in the applicant's view, have highlighted the Police vehicle's presence. However, despite this admission, the applicant has consistently maintained that he had a lawful reason for exceeding the speed limit and in doing so exercised reasonable care, consistent with the exemption provided under Rule 305. 9. On one view, the applicant's interest in what was ultimately identified as the red sedan is indicative of his proactive approach to policing. The view that he should have notified VKG and had another Police vehicle pursue the red sedan is nonsensical. The incident that gave rise to the applicant's removal occurred over the course of approximately 30 seconds. It is implausible in my view that another Police vehicle could have responded within the required timeframe. 10. [REDACTED] 11. The incident took place late at night and at the back end of the shift. The evidence in my view suggests that the applicant made a judgement call and considered that the red sedan was gaining distance on him and warranted a speed check. At this point in time, the evidence also suggests that the Police vehicle was travelling towards the Romsey Street intersection. 12. The Investigators determined that the applicant's notebook entry was inconsistent with the RMS CCTV footage: The notebook entry is inconsistent with RMS footage of the intersection which does not show a vehicle in front of PTC 115. The notebook entry is also inconsistent with RMS road data which proves that the vehicle ahead of PTC 115 was 11 seconds or approximately 184.5 metres ahead of PTC 115. 1. That determination, later adopted by the Commissioner of Police to support the s181D removal order against the applicant cannot be substantiated on the evidence. 2. In relation to the "vehicle ahead", the Investigators relied on the RMS CCTV footage and road block data which in their opinion showed the red sedan "at the time of camera activation was 11 seconds and approximately 184.5 metres ahead". That distance was based on the Police vehicle maintaining constant speed post camera activation. However, evidence of both the applicant and Constable Bernhardt was, and I accept, that the Police vehicle did not maintain a constant speed as it braked and subsequently accelerated after the speed camera was activated. 3. The Investigators accepted Sergeant Coxon's calculation that it would have taken the Police vehicle approximately 43 seconds to close the distance between it and the red sedan to 40.4 metres, the distance the applicant nominated that he would be able to read the registration plate. That calculation is plainly incorrect. Sergeant Coxon has, on the material before the Commission, miscalculated the distance between the Police vehicle and the later identified red sedan at the point of camera activation. 4. The Commissioner of Police declined to call Sergeant Coxon. 5. In conceding that his driving on the night of the incident was not within the exemption provided by Rule 305 because the Police vehicle was not displaying blue/red flashing lights or sounding an alarm, the applicant urged the Commissioner of Police to consider that he had observed a red sedan committing a traffic offence and as he was intending to conduct a speed check on that vehicle, it was inappropriate to activate the warning lights and/or siren. 6. It was the applicant's evidence that a speed check was warranted as he had observed the speed of the red sedan for approximately 360 metres commencing in the vicinity of Hornsby Street prior to the intersection of Pacific Highway and Romsey Street. He contends the speed of the Police vehicle was approximately 60 km/h at that point in time and the red sedan was gaining distance. Moreover, the applicant considered that the road and traffic conditions at that time did not present any actual or potential danger to any persons. 7. There is no evidence before the Commission to support the proposition that the applicant was not taking reasonable care for the 15 to 20 seconds prior to camera activation and an additional 11 seconds post camera activation or, to counter the applicant's version of events concerning his driving between Hornsby Street and Romsey Street to the requisite standard. Constable Bernhardt was of course distracted for some of this time and his evidence does not support the Commissioner's case against the applicant. 8. The applicant was a certified Silver driver. [REDACTED] The applicant considered he was being proactive and in the circumstances, had a legitimate reason to drive at a speed in excess of the prevailing speed limit. 9. Detective Superintendent Devaney relied on the Commissioner's Reasons to support the proposition that the applicant had no lawful or reasonable excuse to be speeding at the time he activated the speed camera. However, it was also Detective Superintendent Devaney's evidence that speeding in the range of 10 km/h to 15 km/h above the posted speed limit was not a particularly serious matter in the context of other criminal and traffic offences. 10. Detective Superintendent Devaney considered the applicant's traffic offence was not at the higher end of objective seriousness. His clear evidence was that he would not expect that a Police Officer would be removed solely on the grounds of driving 12 km/h in excess of the speed limit. 11. Detective Superintendent Devaney was unable to draw upon any evidence to suggest that the applicant was not exercising reasonable care for the short time that he was speeding. The fact remains however that he was transferring an intoxicated person to Central Station. 12. In my view, it is abundantly clear that the applicant, as a matter of policy, should not have been speeding on the night of the Police vehicle. In such circumstances, the Commissioner of Police would be entitled to impose either a warning or a similar disciplinary outcome. However, in this particular matter the applicant has already incurred a significant penalty. 13. In response to the applicant's evidence that he considered the red sedan was "gaining distance" from about 360 metres prior to the Romsey Street intersection, the Commissioner determined that the RMS road log data did not support the applicant's claim. As the Investigators determined: RMS footage and road data for the intersection do not support the version provided by Senior Constable Platts in this report as there was no vehicle shown in the footage in front of the Police vehicle as described by Senior Constable Platts and the RMS road data does not support a vehicle "gaining distance" on the Police vehicle as described in the report. 1. There is no evidence before the Commission that RMS road data includes vehicle speed for a distance prior to camera activation. It is significant in my view that the overwhelming evidence before the Commission, including the evidence of Detective Inspector Devaney, was that the RMS CCTV video footage shows a vehicle in front of the Police vehicle. It is simply implausible that the Investigators failed to closely examine the RMS materials at an early stage. Allegation 2 I consider that there are grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you falsified an official Police record (your official Police notebook). 1. The applicant denied the allegation. 2. Prior to completing his shift on 22 October 2014, the applicant made the following contemporaneous note concerning the speed camera activation in his Police notebook: About 2230 I was trying to catch up to a red sedan partial rego XCF*** for crossing into my lane 1 on Pacific Highway just north of the Bluegum Hotel. Trying to catch up to him so I could speak to driver about driving. Car PTC 115. 1. The Blue Gum Hotel is directly opposite the Romsey Street intersection on the corner of Pacific Highway and Unwin Road (which in effect is a continuation of Romsey Street). 2. Relevantly, the applicant's report dated 12 November 2014 was provided to Sergeant Tylor with the Recommendation: Forwarded through the line of command for comment. 1. The "Issue" subject to the applicant's report was the "Activation of red light camera at intersection of Pacific Highway and Romsey Street Waitara". The report notes in part the following: As I drove along lane 1 (gutter lane) of the Pacific Highway from the approximate cross road of Hornsby Street to Romsey Street, I noticed a red sedan with what I believed to have yellow and black NSW plates XCF***appeared across from lane 2 into lane 1 as it negated a series of bends on the Pacific Highway. The red sedan drove in a manner as if it was cutting the corners and crossing into lane 1 from lane 2. From the distance I observed this car from (approximately 30 metres), I got the first three letters ... 1. The applicant's report further states that he proposed to stop the vehicle. However, the red sedan was gaining distance and accordingly, shortly stated he sped up to read its number plate and possibly start a speed check before pulling the driver over to talk about their driving and test their sobriety. He subsequently activated a speed camera at the Romsey Street intersection. He did not activate the Police vehicle's lights and sirens as he considered activation: would have ruled out any chances of conducting a speed check on the red sedan and may have confused other road users … 1. The report concludes that the applicant did not attempt to "pursue" the red sedan and he considered he had acted within the provisions of Rule 305. The applicant also noted that he informed Sergeant Chapman of the incident after it occurred. 2. The Commissioner of Police subsequently determined: You said that after the camera was activated you and Constable Bernhardt discussed what had occurred, and that Constable Bernhardt later sent you a series of emails. You said he made mention that the vehicle had come out of the Blue Gum Hotel. You described how, after the camera had activated, you looked around for other vehicles that may have triggered the camera. You said you saw a vehicle 30 metres ahead and were able to take the partial registration number. You said that as you were not gaining on the vehicle you simply slowed down. You admitted that you took no action such as broadcasting information via the Police radio. You maintained this account of events throughout the Interview. Having reviewed CCTV footage obtained from Roads and Maritime Services, you asserted: There is another vehicle that is further south along the Pacific Highway that I could not make out. You estimated from the footage that vehicle appeared no less than 50 metres from the intersection. 1. There is no evidence to support the Commissioner's proposition that Constable Bernhardt sent "a series of emails" to the applicant concerning the incident. The applicant was copied into a single email dated 9 November 2014. 2. It was, of course, the applicant's evidence that he first noticed the red sedan approximately 360 metres north of Romsey Street intersection. The evidence before the Commission in terms of maps and photographs makes it more probable than not, that in the circumstances of this particular case, absent any helpful evidence from Constable Bernhardt, the applicant has provided a truthful account concerning when he first observed the vehicle. 3. However, the Investigators on their view of the evidence, determined and the Commissioner of Police subsequently accepted, that the applicant's notebook entry was inconsistent with the RMS CCTV footage "which does not show a vehicle in front of PTC 115". In addition, it was also held against the applicant that his notebook entry was inconsistent with the RMS road log data "which proves the vehicle ahead of PTC 115 was 11 seconds or approximately 185.4 metres ahead of PTC 115". Clearly, the evidence in this case shows otherwise. 4. The Investigators also determined that the applicant's notebook entry was inconsistent with the version of events provided by Constable Bernhardt in his second interview at Q 31: Q: When you felt the Police vehicle accelerate a slight bit did you feel like it was deliberate acceleration or consistent with normal patrol? A: I felt the car accelerates slightly, it did not cause me to worry because after we pass through the intersection and the camera goes off the vehicle accelerated hard and it caused me to be pulled back a bit and it gave me concern to look forward. 1. For an undefined period of time prior to camera activation, Constable Bernhardt was, as described earlier in this decision, distracted and intermittently checking on the intoxicated person in the rear of the vehicle. It must follow that on the balance of probability, Constable Bernhardt was blind to anything that occurred between the vicinity of Hornsby Street, some 360 metres north of the intersection and the point of speed camera activation. 2. The Commissioner of Police seeks to rely upon Constable Bernhardt's estimate that after camera activation, it "took a while" to catch up to the red sedan together with his evidence that "he did not see the red sedan speeding or cutting lanes" to support the proposition that the applicant made a false notebook entry. 3. The applicant stated that he was only able to partially recognise the registration plate of the red sedan "somewhere" in the vicinity of the Holden dealership on Pacific Highway. He could not recall or identify the exact location where he was able to read the number plate. Having considered the evidence in relation to this matter, particularly the RMS material and supporting screen shots and maps, I have formed the view that the applicant's explanation is plausible given the extremely narrow timeframe post camera activation and the fact that the incident occurred at the back end of the shift and at night. In that regard, I note that no fatigue issues were raised by the applicant. 4. The applicant was also being questioned during the course of the investigation some months after the incident had occurred. 5. The Commissioner placed weight on the response of Constable Bernhardt to the following question to support this particular allegation: Q: At the time the red light/speed camera activated how far away was the red sedan with partial registration SCF (sic)? A: I can't remember when I first saw it, Philip accelerated a second or two after the camera activation. I can remember looking around at what may have caused the flash, maybe a truck on the side. I look to the right but I could not see anything. I then feel the truck accelerate hard and I am not sure why he accelerated. I saw that he was heading towards a vehicle in front that was near the bends. 1. Moreover, in his first interview, Constable Bernhardt estimated the red sedan was approximately 4 to 5 car lengths (16 to 20 metres) in front of the Police vehicle when he first saw it. Against that backdrop, it must be acknowledged that Constable Bernhardt was startled from distraction when the camera flashed. At 72 km/h, the Police vehicle was travelling at 20 metres per second. In my view, Constable Bernhardt's estimate is just that, an estimate. 2. The Commissioner of Police seeks to rely on Constable Bernhardt's evidence that he did not see the red sedan prior to "travelling through the intersection" and further, "he only became aware of the car after you have accelerated after it". Constable Bernhardt also claimed that the red sedan "appeared to be driving normal" and "he did not see it commit any traffic offences before or after the intersection". 3. Of course, given his distraction, it was improbable, as canvassed above, that Constable Bernhardt saw the red sedan prior to camera activation. Accordingly, he is not qualified to suggest that he observed the red sedan driving normally prior to camera activation. 4. On the evidence, there was no conversation between Constable Bernhardt and the applicant post camera activation. 5. In making an adverse finding against the applicant, the Commissioner acknowledges Constable Bernhardt's admission during the course of his second interview in May 2015 that his initial claim that a vehicle had come from the vicinity of the Blue Gum Hotel and cut the Police vehicle off was a lie. This admission appears to have flavoured the investigation. However, the fact remains that the evidence before the Commission and confirmed by Detective Superintendent Devaney in cross examination, was that there was a vehicle in front of the Police vehicle which was subsequently confirmed to have the partial registration XCF***. 6. It was the applicant's evidence that he made the notebook entry at the end of his shift on 22 October 2014 because he thought the Police vehicle had activated a speed camera at the intersection of Pacific Highway and Romsey Street. For his part, Constable Bernhardt wrote the partial registration number on a piece of paper at the time he saw it because he also thought the Police vehicle had activated a speed camera. 7. Importantly, the evidence before the Commission supports the proposition that there was absolutely no collusion, as alleged by the Investigators and subsequently accepted by the Commissioner, between the applicant and Constable Bernhardt concerning what they proposed to enter in their notebooks. 8. Notwithstanding the applicant's explanation, the Commissioner was satisfied the applicant had falsified his Police notebook entry concerning the manner in which the red sedan had been driven prior to the intersection of Pacific Highway and Romsey Street. 9. The Commissioner's determination concerning Allegation 2 is in error. The RMS CCTV footage and road log data shows, as confirmed by the applicant and Detective Superintendent Devaney, there is a vehicle ahead of PTC 115 at the point of camera activation. Both the applicant and Detective Superintendent Devaney were able to identify the vehicle from the CCTV footage and Google photo maps. Both the applicant and Constable Bernhardt were able to independently record the partial registration number shortly after the Police vehicle passed through the intersection of the Pacific Highway and Romsey Street. 10. Moreover, the Police vehicle did not, on the evidence, maintain a constant speed post camera activation, as determined by the expert report relied upon by the Commissioner to remove the applicant. The fact that the Police vehicle was not maintaining a constant speed means it is improbable that the vehicle ahead, the red sedan, post camera activation was approximately 185.4 metres in front Allegation 3 I consider there are grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were untruthful in your initial report to Sergeant Tylor dated 12 November 2014. In particular, you stated that you: (i) Observed a motor vehicle that appeared to cross from lane two to lane one, while it negated bends on the Pacific Highway; (ii) From a distance of approximately 30 metres, deciphered the first three letters of the car registration plate as XCF; (iii) Sped up so you could read the remainder of the number-plate and possibly start a speed check, before pulling the driver over to speak to them and possibly test their sobriety; and (iv) Informed Sergeant Chapman of the incident after it occurred. 1. The Investigators determined the applicant had been untruthful in his initial report to Sergeant Tylor dated 12 November 2014: … (the applicant) mentions he obtained the past (sic) registration of vehicle XCF*** from about 30 metres behind it ... travelling south on the Pacific Highway, Waitara, after noticing a traffic offence. In this version, he obtains the past (sic) registration XCF*** prior to passing through the intersection of the Pacific Highway and Romsey Street, Waitara, and subsequently setting off the speed camera due to travelling at 72 kilometres per hour in a 60 kilometres per hour zone. He also describes that the vehicle XCF "was gaining distance" on the Police vehicle prior to the intersection. RMS footage and road data for the intersection do not support the version provided by Senior Constable Platts in his report as there was no vehicle shown in the footage in front of the Police vehicle as described by Senior Constable Platts and the RMS road data does not support a vehicle "gaining distance" on the Police vehicle as described in the report. On further investigation, Senior Constable Platts continued to be dishonest by lying to Investigators during the interview with Senior Sergeant Holmes and Chief Inspector McBeath on 19 February 2015 about the manner of driving of vehicle XCF***, in trying to justify why he was exceeding the posted speed limit in order to obtain the registration number of a vehicle for a minor traffic violation. In his record of interview about the matter, Senior Constable Platts recalls that he obtained the registration of the vehicle a short time after the speed camera activation. This is inconsistent with the version provided in his initial report and the RMS data which has proven that the vehicle in front of the Police vehicle travelled through the intersection 11 seconds prior, and would have been approximately 185.4 metres ahead of them (provided that he maintained a consistent (speed) at the time the camera activated). 1. In relation to the RMS CCTV footage and road data log, the Commissioner of Police noted the red sedan passed through the intersection at a speed of 60.6 to 60.7 km/h and the Police vehicle passed through 11 seconds later at 72.8 km/h. The Commissioner's Reasons in relation to the RMS material and previously referred to above stated: … this information was provided to Traffic and Highway Patrol Officers, for the purposes of obtaining a report in relation to the speed and distance between the Police vehicle and the car in front of it. In his statement dated 14 May 2015, Sergeant Richard Coxon, Lake Macquarie Highway Patrol, asserts that if the vehicle ahead maintained a constant speed, the distance between the two vehicles would have been approximately 185 metres. 1. However, the evidence before the Commission in relation to the speed of the Police vehicle was crystal clear. Both the applicant and Constable Bernhardt stated that post camera activation, the Police vehicle accelerated and did not maintain a constant speed. Accordingly, the distance between the vehicles could not have been approximately 185 metres. The Commissioner's expert evidence was incorrect. 2. Moreover, the evidence before the Commission is that Constable Bernhardt is simply unable to comment on what occurred prior to Romsey Street. 3. The Commissioner also determined that if the applicant's version of events to the effect that he was able to observe the red sedan for 10 seconds post camera activation, the distance between the two vehicles would have reduced by approximately 31.7 metres, leaving a remaining gap of approximately 151 metres. 4. The Commissioner further observed that the distance between the vehicles would have been greater if the vehicle in front had accelerated after passing through the intersection at 60.6 km/h or the Police vehicle reduced its speed, which is consistent with the RMS CCTV footage which shows the Police vehicle braked after camera activation. 5. The Commissioner considered the RMS CCTV footage, road log data, numerous RMS still images together with Constable Bernhardt's second interview to determine that the applicant had been untruthful in his report to Sergeant Tylor and in his interview with Senior Sergeant Holmes and Chief Inspector McBeath. 6. The Commissioner also relied on the fact that in his departmental investigation interview conducted on 4 March 2015, Sergeant Chapman stated he had no recollection of the applicant speaking to him about the incident. For their part, the Investigators placed neutral weight on Sergeant Chapman's recollection. 7. On balance, the Sergeant's recollection may well be the case. However, Police Stations are, more often than not, very busy workplaces 24/7. The fact that the applicant's comment to Sergeant Chapman was not heard or recalled does not mean that he did not mention the matter to him. The proactive approach of the applicant to his work has not been challenged. Against that background, I consider that it was more probable than not that the applicant did raise the incident with Sergeant Chapman as alleged. 8. As determined above, the RMS CCTV footage and road log data shows there is a vehicle ahead of the Police vehicle at the point of camera activation. Both the applicant and Detective Superintendent Devaney were able to identify the vehicle from the CCTV footage and Google photo maps. 9. The applicant and Constable Bernhardt were also able to record the partial registration number of the red sedan. As Constable Bernhardt stated in answering Q 49 during his 4 May 2015 interview: I started to write down the registration, he did not ask me if I got the full registration. I don't even think that he was aware that I had written anything in my notebook. 1. Contrary to the Commissioner's finding the applicant and Constable Bernhardt had conferred about recording the partial registration number XCF, it was the evidence of Constable Bernhardt that he simply wrote down the number independently because he thought the Police vehicle had passed through and activated a speed camera. 2. Moreover, the applicant strenuously maintained he did not ask Constable Bernhardt to make the false entry in his notebook. Clearly, there is no evidence to support that proposition. 3. The Commissioner also determined the fact that Constable Bernhardt had copied the applicant into his email report to Sergeant Tylor dated 9 November 2014 was of itself, sufficient to prove the applicant was able to "tailor" his version of events to be consistent with those initially provided by the Constable. The applicant's evidence was that he had been off duty for a few days returning to work on or about 12 November 2014. Accordingly, he contended that he only read Constable Bernhardt's email prior to completing his report for Sergeant Tylor the same day. There is no evidence to support that proposition to the required standard. Allegation 4 I consider there were grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were dishonest during your departmental interview on 19 February 2015. 1. I have already canvassed a number of matters that I consider relevant to this particular allegation in dealing with Allegations 1 to 3 above. 2. The Commission of Police made a number of findings concerning the applicant's alleged failure to comply with operational procedures, policies, standing orders and Commissioner's directives. 3. [REDACTED] 4. [REDACTED] 5. The Commissioner considered the applicant's description concerning the manner in which the red sedan was driven prior to the intersection of Pacific Highway and Romsey Street, Waitara was a fabrication to avoid departmental action concerning excessive speed. The Commissioner also considered there was no other justification for the applicant to be driving at 72 km/h in a 60 km/h zone with a person who was not a Police Officer on board 6. The Commissioner also considered the applicant had been dishonest in his explanation of the incident. The applicant was untruthful in relation to his notebook entry and his initial report to Sergeant Tylor. That untruthful behaviour was compounded by the applicant being untruthful to the Investigators. 7. For the reasons set out variously above under Allegations 1 to 3, the allegations that the applicant was dishonest and manufactured an explanation for setting off the speed camera at the intersection of the Pacific Highway and Romsey Street, Waitara cannot be sustained on the evidence. 8. The applicant claimed during the course of this matter that his notebook entry was written to "jog his memory". It is certainly cryptic. Other than Constable Bernhardt's notebook entry, no documentary evidence was led by the Commissioner to show how other Officers in various circumstances had entered incidents in their notebooks. On the balance of probability and having considered all of the evidence submitted by the parties, I am comfortably satisfied that the applicant's explanations from the "get - go", including his notebook entry, report to Sergeant Tylor and his answers given during the course of his investigation interview were not untruthful as alleged. 9. It must follow that the Commissioner's findings that the applicant has failed to demonstrate the minimum standards of candour and integrity expected of any Police Officer in New South Wales cannot be substantiated on the evidence. 10. In relation to the Safe Driving Policy, I consider the applicant was in technical breach of that policy. However, the evidence on behalf of the Commissioner was that in an isolated incident, the breach, whilst not minor, was not excessive. I am particularly concerned that the applicant had an intoxicated person on board the Police vehicle on the night of the incident. In that regard, I consider the applicant has already paid the appropriate penalty for his indiscretion. Conclusion 1. The question for determination in this matter is whether the applicant's removal was harsh, unreasonable or unjust. That question must be considered in the context of the statutory framework. Application of 181F(3) 1. The Police Act relevantly provides that pursuant to s 181F(3), the Commission must consider certain matters when determining whether an order to remove was harsh, unreasonable or unjust. The Commission must also have regard to the interests of the applicant as well as regard to the public interest. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. Interests of the applicant 1. Shortly stated, it is abundantly clear that the effect of the Commissioner's decision to remove the applicant has been significant. The applicant trained as a Police Officer after spending some years involved in furniture making. He considered that he had a contribution to make. By all accounts, the applicant was diligent in his job and a hard worker. Those factors do not, by themselves, defend him against removal from the Force for any wrongdoing. 2. It is fundamental that all sworn Officers understand the obligations that arise from the oath of office and be prepared to meet those obligations at all times. The interests of the applicant are, of course, subordinate to the public interest as defined by the Police Act. 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 and support the proposition that the Commissioner's order to remove the applicant should be overturned. In determining that course, the public interest dictates that a Police Officer should act with integrity at all times, both on and off duty. 3. A Police Officer is also required to uphold 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. 4. Personal integrity includes consideration of whether the Officer is a person of sound moral principle and character. The Full Bench in Toshack v Commissioner of Police [2009] NSWIRComm at [44] determined that personal integrity may involve "soundness of moral principle and character; uprightness; honesty". 5. The Commissioner's case was that the applicant, by his conduct, had shown a lack of integrity. The Commissioner also stated that he had lost confidence in the applicant to fulfil the duties of a NSW Police Officer. However, on the evidence before the Commission, the Commissioner's loss of confidence in the applicant is not supported. 6. In Morris v Commissioner of Police [2016] NSW IRC 1034 at [17], Newall C observed "there is a real public interest in maintaining a capable and experienced Police force". Considerable public monies have been vested in training the applicant as a Police Officer. 7. The unchallenged evidence before the Commission was that the applicant was a proactive Police Officer who had received a number of accolades and commendations. At the time of the incident that led to his removal, the applicant was providing leadership to Constable Bernhardt on account of the fact that he was regarded as a proactive Policeman. In my view, the public interest will be served by the applicant's reinstatement. The tripartite test 1. Whether the removal of the applicant was harsh, unjust or unreasonable must be decided on the facts of the case. The Commission must make a finding based on an assessment of the evidence before it, whether, on the balance of probabilities, the conduct alleged actually occurred. 2. The High Court in Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 determined that a particular dismissal may be: Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct; Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 1. Addressing each limb of the tripartite test to the facts and circumstances of this particular matter, the decision by the Commissioner to remove the applicant was harsh, unjust and unreasonable in the terms enunciated by the High Court in Byrne. The evidence relied upon by the Commissioner in support of the removal order based upon the allegations (1 to 4) put against the applicant is in error and plainly insufficient to make out those grounds. The investigation was also flawed. 2. On the evidence and contrary to the Commissioner's Reasons, it is more probable than not that on the night of the incident, the applicant identified a vehicle, a red sedan "XCF" some 350 metres or so north of Romsey Street on the Pacific Highway, crossing lanes at a speed in excess of 60km/h. 3. It is also more probable than not that in the absence of any contrary eye witness account, the applicant's claim that he increased speed to catch up to the offending vehicle for the purposes of conducting a speed check and activated a speed camera represents a truthful account of what occurred on the night of the incident. 4. I found Detective Superintendent Devaney and Constable Bernhardt to be credible witnesses. Despite an entrenched view on the part of the Commissioner, I also find the applicant to be a credible witness. 5. In determining this application, I have taken into consideration the applicant's disciplinary record. Disposition of the application 1. I find that the applicant has met the requirements established under the statutory scheme that his removal from the NSW Police Force was harsh, unreasonable or unjust. I will order that the applicant be reinstated to the Police Force at the rank and incremental level he held at the date of his removal without loss of pay. Orders 1. The Orders I make in this matter are as follows: 1. Application for review is upheld; 2. The applicant shall be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal within 14 days from the date of this decision; 3. The respondent, the Commissioner of Police, shall pay to the applicant an amount equivalent to what he would have earned, but for being removed, between the date of his removal and the date of his reinstatement at the rate of his ordinary rate of pay less any monies/remuneration earned from work undertaken during that period. Those monies shall be paid within 14 days from the date of this decision; and 4. The period of employment of the applicant with the respondent shall be taken not to have been broken by his removal. The intervening period between the date of the applicant's removal and his reinstatement to the NSW Police Force shall be counted for all purposes as a period of employment. J D Stanton Commissioner ********** Amendments 14 June 2019 - Paragraphs redacted in accordance with the publication restriction. 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: 14 June 2019