Industrial Relations Commission New South Wales Medium Neutral Citation: Michael Flynn v Commissioner of Police [2019] NSWIRComm 1030 Hearing dates: 17, 18 and 19 September 2018 and 11 and 12 December 2018 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Application Dismissed Catchwords: POLICE – application for review of disciplinary order – whether order is beyond power or harsh, unreasonable, or unjust – whether admitted and substantiated allegations constitute misconduct Legislation Cited: Police Act 1990 (NSW) ss 7, 173, 174, 175, 181D, 181F Police Regulation 2008 (NSW) cl 8 Police Regulation 2015 (NSW) cl 8 Cases Cited: Allison v Commissioner of Police [2018] NSWIRComm 1005 at [137] Briginshaw v Briginshaw 60 CLR 336 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198 Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 Hosemans v Commissioner of Police (2004) 138 IR 159 Luxton v Vines [1952] 85 CLR 352 McDiarmid v Commissioner of Police [2012] NSWIRComm 100 O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Police Service Board v Morris and Martin (1985) 156 CLR 397 Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86 Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 (at 236) Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Starr v Commissioner of Police [2001] NSWIRComm 226 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Whyte v Commissioner of Police [2010] NSWIRComm 84 Wright v Commissioner of Police [2015] NSWIRComm 1016 Category: Principal judgment Parties: Michael Flynn (applicant) Commissioner of Police (respondent) Representation: Counsel: G Doherty (applicant) O Fagir (respondent) Solicitors: Walter Madden Jenkins (applicant) Maddocks Lawyers (respondent) File Number(s): 2018/96838 Publication restriction: Decision redacted in accordance with Orders made on 20 May 2019 pursuant to s 164A of the Industrial Relations Act 1996 (NSW) DECISION 1. On 7 March 2018, the respondent, the Commissioner of Police, through his delegate, Superintendent Christopher Schilt, made an order pursuant to sub-s 173(2) of the Police Act 1990 (NSW) ("the Police Act"), that disciplinary action be taken against the applicant, Michael Flynn, a member of the NSW Police Force ("the Disciplinary Order"). 2. The Disciplinary Order was a result of findings in four investigations undertaken pursuant to Part 8A of the Police Act, covering 11 allegations, and consideration of the applicant's disciplinary history. 3. The Disciplinary Order reduces the applicant's rank from Senior Constable Level 5 to Constable Level 5 and subjects the applicant to a disciplinary transfer from Hume Local Area Command to Wollongong Local Area Command. 4. On 27 March 2018, the applicant filed, at the Office of the Industrial Registrar, an application for review of the Disciplinary Order pursuant to sub-s 174(1) ("the Application"). 5. The applicant asserts that the Disciplinary Order is beyond power or unjust to the extent that it is grounded in allegations of misconduct in respect of which the applicant is not guilty. Alternatively, the Disciplinary Order is harsh, unreasonable or unjust. 6. The Application was conciliated before Commissioner Murphy on 14 May 2018, but did not settle. Directions were made on that date for the filing and service of evidence, and the matter was later set down for hearing on 17, 18 and 19 September 2018 and then a further two days of hearing on 11 and 12 December 2018. Powers of the Commission on review 1. Section 173 of the Police Act gives the respondent the power to make orders that reviewable action as set out in the legislation be taken with respect to a police officer who engages in misconduct. Sub-section 173(2) is in the following terms: (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. 1. A person who is the subject of an order for reviewable action made under s 173 of the Police Act may apply to the Commission for a review of the order pursuant to s 174 on the ground that the order is beyond power or is harsh, unreasonable or unjust. 2. The manner in which the Commission must conduct the review is set out at s 175 of the Police Act: 175 Proceedings on a review (1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made. (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) 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 fact that the Commissioner made the order pursuant to section 173). 1. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 ("Hosemans") at [134], Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 ("Probst") at [11] and Whyte and Commissioner of Police [2010] NSWIRComm 84 ("Whyte") at [11]. 2. Parts 8A and 9 of the Police Act contemplate that the Commission will assess allegations of misconduct or unsatisfactory performance and determine if these allegations are properly based, and then determine if these matters justify the relevant reviewable orders. This is similar to the exercise of the removal powers in s 181D of the Police Act. 3. If the applicant does not advance a case that has capacity to establish that the Disciplinary Order was harsh, unreasonable or unjust, the Application cannot succeed. The applicant will not have carried his onus. The Full Bench stated in Hosemans (at [131]) (cited with approval in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78]): … the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2). But the important point here is the primary onus that falls on the applicant. 1. The words of s 181F(2) of the Police Act mirror the wording of s 175(2) of the Police Act, and the primary onus falls on the applicant in proceedings under each section. However, if the applicant advances any evidence or argument that might go to establishing that the Disciplinary Order was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the respondent: Tredinnick (No 2) at [78]. 2. The purpose of the respondent's case is, as the Full Bench in Hosemans held, to make answer to the applicant's case. 3. It was also held in Hosemans that proceedings for review pursuant to s 181E of the Police Act are "essentially the same as the unfair dismissal regime" of the Industrial Relations Act 1996 ("the IR Act') "subject to specified modifications" (at [97], [104]). It follows that the meaning of the words "harsh, unreasonable or unjust" in review proceedings under the Police Act have the same meaning as that given to them in proceedings under Part 6 of the IR Act: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 ("Tredinnick (No. 1)") at [20]. 4. Notwithstanding the above, the test as to whether a removal pursuant to s 181D of the Police Act was harsh, unreasonable or unjust is not identical to that test in the IR Act. In proceedings under s 181E of the Police Act, the Commission must take into account matters set out in s 181F(3)(b) of the Police Act which the Commission in an application brought under s 84 of the IR Act does not have to consider: Tredinnick (No. 1) at [21] – [29]. 5. Amongst other things, in determining an application pursuant to s 181E of the Police Act, the Commission must have regard to a "public interest" which, because it is partly defined at sub-s 181F(2)(ii) as "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)", is not the same as the "public interest" referred to in s 146(2) of the IR Act: Commissioner of Police v Eaton [2013] HCA 2 per Heydon J (at [27]). 6. Section 175 (4) of the Police Act provides that, in considering applications for review made under section 174 of the Police Act, the Commission must take into account the officer's interests and the public interest which includes the fact that the Commissioner (or his delegate) made the order pursuant to section 173 of the Police Act. 7. In Probst, Deputy President Sams considered at [21] the "mandatory and specific requirement of what the Commission must have regard to in a s 174 review" found at sub-s 175(4) of the Police Act. The Deputy President set out, at paragraphs [22] – [23] of his decision relevant extracts from the Court of Appeal's consideration of s 181F in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198, and adopted these matters for a s 174 review. 8. Deputy President Sams referred in Probst, at [53], to the Full Bench's determination in respect of the competing interests of the applicant and the public interest in Commissioner of Police v Wayne Edward Collins [2008] NSWIRComm 162 in which the Full Bench said at [53]: We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors. 1. Deputy President Sams also considered the obligations of procedural fairness in Probst and said at [20]: 20 It seems to me that the key to the Commission's consideration of whether procedural fairness has been denied to the applicant is found in the following principles distilled from the authorities: 1. The procedural requirements in s 173(5) require 'if not a strict compliance at least a careful and punctilious regard to correct procedure'. 2. The Commissioner of Police is not free to 'act ill-advisedly or capriciously' in respect to giving the aggrieved officer proper and adequate reasons for his decision to make the order. 3. The discretion to make the order is intended to be exercised 'according to rules of reason and justice, not according to private opinion'. 4. There would need to be demonstrated that a failure to afford procedural fairness causes 'a substantial and irrevocable prejudice to the employee'. 1. Section 177 (1) of the Police Act provides that the Commission may determine the application when, in the Commission's opinion, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful by: 1. revoking the order; 2. revoking the order and making such other order as it considers appropriate, whether or not it is an order that the Commissioner is empowered to make under section 173; 3. upholding the order; or 4. dismissing the application. 1. If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order. 2. The Commission's approach to removal orders and orders for reviewable action are, broadly speaking, the same. However, the relative severity of the sanctions under consideration must be borne in mind when considering authorities dealing with removal orders. 3. Finally, as was held in Starr v Commissioner of Police [2001] NSWIRComm 226, "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case" (at [140]). Evidence 1. At the hearing, the applicant tendered into evidence: 1. three statements made by him: 1. a statement made on 15 June 2018; 2. a statement made on 4 September 2018 in reply to the statements of: Commander Zoran Dzevlan made 20 August 2018; Commander Christopher Schilt made 21 August 2018; Chief Inspector John Sheehan made 20 August 2018; Sergeant Jeffrey Morgan made 22 August 2018; and Detective Sergeant Matthew Woods made 22 August 2018; and 3. a statement made on 23 November 2018; 1. statement made by Sergeant Edward Taylor on 31 August 2018; 2. statement made by Senior Constable Nicholas Jeffrey Guild on 1 August 2018; 3. statement made by Sergeant Scott Marsh on 16 July 2018; 4. statement made by Senior Constable Stephen Nolan on 26 July 2018; 5. statement made by Stephen Peter George Neehaus on 2 July 2018; 6. statement made by Senior Constable Nathan Oldfield on 23 June 2018; 7. statement made by Leading Senior Constable Damian Ottley on 10 July 2018 8. statement made by Sergeant Matthew Owen on 20 June 2018; 9. statement made by Detective Senior Constable Edwin Louis Robinson on 31 July 2018; 10. statement made by Leading Senior Constable David Tooth on 25 July 2018; 11. statement made by Leading Senior Constable Bianca Williams on 24 July 2018; 12. Judgment/Order of the Local Court of New South Wales dated 12 November 2014 in the matter of Allan McFarlane v Michael Flynn case number 2014/00113230; 13. statement made by Sergeant Christopher Upton on 23 November 2018; 14. WorkCover NSW certificate of capacity dated 26 November 2018; and 15. medical certificate from Goulburn Base Hospital dated 21 September 2018; 1. The respondent tendered into evidence: 1. the following documents during the cross-examination of the applicant: 1. the Hume Local Area Command Interim Risk Management Plan for Michael Flynn dated 8 June 2016; 2. email from Chief Inspector John Sheehan to Michael Flynn dated 21 August 2018 and three reports (May 2018, June 2018, and July 2018) regarding an interim Risk Management Plan for Senior Constable Flynn; 1. statement of Superintendent Christopher Frederick Schilt made 21 August 2018. The Disciplinary Order is annexed to Superintendent Schilt's statement; 2. statement of Superintendent Zoran Dzevlan made 20 August 2018; 3. statement of Sergeant Jeffery Morgan made 20 August 2018; 4. statement of Chief Inspector John William Sheehan made 21 August 2018; 5. REDACTED 6. Region Commander's Warning Notice issued to Senior Constable Michael Flynn dated 9 April 2018; and 7. statement of Detective Sergeant Matthew David Woods made 22 August 2018. 1. The applicant was cross-examined. None of the applicant's other witnesses were cross-examined. 2. Superintendent Schilt, Superintendent Dzevlan, Sergeant Morgan, Chief Inspector Sheehan, and Detective Sergeant Woods were cross-examined. 3. The Commission has carefully weighed and considered all of the written material and oral evidence before it. Disciplinary history 1. The applicant's disciplinary history is relevant because the first of the eleven allegations of misconduct is that the applicant was untruthful about his disciplinary history, and the second allegation is that in an interview about this alleged untruthfulness, the applicant was again untruthful, or was less than fully frank. The disciplinary history is also relevant because the applicant had been warned twice that further disciplinary matters may result in action under s 173 or s 181D of the Police Act. 2. The applicant's disciplinary history was summarised in the Disciplinary Order and included: 1. in 2004 the applicant received training following a sustained finding of influencing a witness; 2. in 2004 the applicant received a sustained finding in relation to his failure to provide customer service. This matter was resolved by conciliation; 3. in 2008 the applicant received counselling for failing to create and maintain records; 4. on 28 April 2014, the applicant was served with a Commander's Warning Notice ("the 2014 Warning Notice ) and placed on a Conduct Management Plan for six months ("2014 CMP") following a vehicle collision; 5. in August 2014 the applicant received counselling in relation to a finding of inadequate customer service; and 6. on 13 July 2015 the applicant was served with a Commander's Warning Notice ("the 2015 Warning Notice") in relation to various matters. 1. The applicant submits that Superintendent Schilt's reliance upon the two prior warning notices gives rise to significant unfairness and procedural unfairness because, contrary to the decision in Reid-Frost v Industrial Relations Commission of NSW [2013] NSWCA 161, there is no evidence before the Commission that would enable the Commissioner to form a view about the reasonableness of the warning notices in the context of a subsequent examination of events leading up to, and allegedly justifying, the reviewable action taken: [69]-[70]. The 2014 Warning Notice and the 2014 CMP 1. The 2014 Warning Notice issued by Superintendent Dzevlan and served on the applicant on 28 April 2014 sets out the findings which were made in relation to a vehicle collision on 25 December 2013 involving the applicant including: 1. the applicant identified himself as a police officer at the scene and failed to make arrangements to rectify the damage to the other vehicle in a timely manner; and 2. the applicant failed to notify his Commander that his civilian driver's license was suspended and continued to drive while his license was suspended. 1. The 2014 Warning Notice sets out Superintendent Dzevlan's determination that the applicant's conduct involved four breaches of the NSW Police Force Code of Conduct and Ethics ("the Code of Conduct"). The 2014 Warning Notice indicates that the applicant would be placed on a Conduct Management Plan, and that further unsatisfactory performance or misconduct could result in the consideration of reviewable action pursuant to s 173(2) or s 181D of the Police Act. The applicant signed the 2014 Warning Notice on 28 April 2014. 2. Chief Inspector Sheehan subsequently created the 2014 CMP. On 1 May 2014 the applicant signed the 2014 CMP. The applicant said in cross-examination that it is not his practice to sign documents without reading them. 3. The 2014 CMP required a review of the applicant's conduct each month for the following six months. Chief Inspector Sheehan prepared monthly reports and met with the applicant to discuss these. The evidence includes a series of records of meetings and CMP reports. 4. On 3 June 2014, the applicant signed the CMP Monthly Report for the month of May with the addendum "happy with plan". 5. The applicant submits that the 2014 Warning Notice was issued by Superintendent Dzevlan without cause and, as a consequence, Superintendent Schilt, in making the Disciplinary Order, was not entitled to rely upon the fact of the 2014 Warning Notice as having been previously issued against the applicant. The applicant asserts in his written submissions in support of this: 40.1. None of the supporting evidence relied upon by Superintendent Dzevlan to issue the notice is before the Commission for consideration. 40.2. The offence of driving whilst suspended is not an absolute liability offence. The offence requires knowledge of the suspension and the defence of honest and reasonable mistake of fact (concerning knowledge) is an available defence: 18.9.18 T72.15. 40.3. Superintendent Dzevlan found that the applicant knew his licence was suspended; contrary to the applicant's denial that he had any prior knowledge of his licence was suspended: 18.9.18 T72.25-40. 40.4. The applicant's evidence … that he did not have knowledge of the suspension stands unchallenged. He was not cross-examined about his denial of knowledge and it was not suggested to him that he knew his licence was suspended and that he drove whilst suspended. The applicant's evidence supports a defence of honest and reasonable mistake of fact and his evidence is unchallenged in that regard. 40.5. There is no evidence in the respondent's case justifying why the applicant's denial of knowledge was rejected. 40.6. The applicant was not charged with an offence of driving whilst his licence was suspended: 18.9.18 T72.50 40.7. The applicant was found to be the "at-fault" driver in the collision. He was not charged with any criminal offence in relation to his control of the motor vehicle: 18.9.18 T72.40 40.8. The applicant was not prosecuted with any offence …: 18.9.18 T73.5 40.9. The findings in relation to not paying for the damages repair were made in circumstances of civil proceedings being on foot concerning a claim for damages by the owner of the damaged motor vehicle. Superintendent Dzevlan was aware that the civil proceedings were dismissed after the 2014 Notice was issued but did not consider the claim for damages to be a relevant factor because it was a "departmental matter, not a criminal matter" (18.9.18 T73.35);... 40.10. The 2014 notice was issued on 28 April 2014 being 7 months prior to the civil proceedings for damages being dismissed. See Ex A14 - the judgment in favour of Mr Flynn. The fact that the civil judgment was given 7 months after the issuing of the 2014 Notice supports that: a. The investigation was unfairly and prematurely finalised prior to the civil proceedings being determined; b. The notice was issued prematurely and unreasonably; c. It was unreasonable for Superintendent Dzevlan not to have caused the investigation to be re-opened once he knew that the civil proceedings had been dismissed. 1. The 2014 Warning Notice was a non-reviewable action pursuant to s 173 of, and Sch. 1 to, the Police Act. The applicant now seeks to have the action reviewed by this Commission on the basis of the matters in paragraph [39] and as a consequence of such a review, disregarded by the Commission in conducting the s 174(1) review and relies on Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86 ("Reid-Frost (No 2)". 2. President Boland said in Reid-Frost (No 2): 55 In my opinion, there was a strong circumstantial case against the applicant, and the Commander was entitled to issue the Warning Notice and to order non-reviewable action. The Warning Notice made it clear that the applicant needed to 'clearly understand' that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under s 173(2) of the Police Act, or removal under s 181D of the Police Act. The applicant refused to sign the Warning Notice, however, the applicant indicated that she understood 'her position with regard to possible further management action'. 56 The Warning Notice, therefore, was not without reasonable foundation and in arriving at his decision to remove the applicant, the Commissioner was entitled to rely on the fact that such a Warning Notice had been issued against the applicant, with the warning that further unsatisfactory conduct or performance might result in further management action against the applicant. 1. In Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161, the judicial review proceedings challenging the decision of the Full Bench, constituted by Walton VP, Kavanagh and Haylen JJ: Reid-Frost v Commissioner of Police [2011] NSWIRComm 3, the Court of Appeal, per Macfarlan JA, in considering his Honour's decision in Reid-Frost (No 2), said: 69 This Ground relates to the Warning Notice referred to in [41] above. By reason of s 173 of the Police Act, the giving of that warning was "non-reviewable action" which the Commission had no power to review. Ms Reid-Frost submits that, contrary to the section, Boland J did in fact do so, because in his judgment he considered whether the Commissioner's reliance upon the matters of complaint referred to in the Notice were well-founded. 70 Boland J did not in my view act contrary to s 173 by considering whether there was a sound basis for the giving of the Warning Notice. That section is concerned with challenges by judicial review or otherwise to the Warning Notice itself. It does not in my view prevent consideration, as here, of the reasonableness of the Warning Notice in the context of a subsequent examination of events leading up to, and allegedly justifying, the removal of a police officer under s 181D. The alternative of simply assuming that the Warning Notice was justified would unfairly prevent an officer who was subsequently removed from the Police Force arguing that the giving of the Warning Notice was unreasonable and that the matters to which it referred should not have been used by the Commissioner in deciding to remove the officer from the Police Force. 71 This Ground is misconceived and should be rejected. 1. I agree with the respondent that Reid-Frost (No 2) is not authority for the proposition that the respondent must prove every fact which forms some part of the foundation for the warning notices, particularly not in circumstances where there was no challenge to the correctness or the legitimacy of the warning at the time it was given. 2. The question that Justice Boland asked himself in Reid-Frost (No 2) was whether the warning notice was issued without a reasonable foundation in circumstances where the warning notice was controversial and, his Honour having found that the warning notice was not issued without a reasonable foundation, continued on the basis that the Commission was entitled to rely on it on reaching his ultimate decision: at [56]. In this instance, there is no evidence before the Commission of any internal challenge to the warning. 3. His Honour did not make any findings about the conduct which was the subject of the warning in Reid-Frost (No. 2). As set out above, Justice Boland's approach was challenged by the former police officer in that case in the Court of Appeal, and the Court of Appeal did not take any issue with his Honour's approach. 4. In this instance, the applicant was involved in a motor vehicle accident on 25 December 2013. An investigation determined that the applicant had failed to rectify the damage to the other vehicle in a timely manner, failed to notify his commanding officer that his civilian driver's license was suspended, failed to communicate with the other driver as to the status of his insurance and failed to advise him of any arrangements that he intended to make to have his vehicle repaired. The applicant also continued to drive when his civilian driver's license was suspended. 5. The applicant says that he did not know that his license was suspended. Although he accepted that a notice was sent out imposing an initial penalty, and then another notice was sent out by the State Debt Recovery Office, he says he received neither notice. His only explanation was that his mailbox is 100 metres from his house and that his mail has gone missing in the past. The respondent submits that explanation is, on its face, implausible. 6. The applicant submits that the Commission should take care accepting the submissions by the respondent on implausibility. The applicant says that his defence of reasonable and honest mistake concerning his knowledge of the suspension of his license was unchallenged and thus should be accepted by the Commission, and that as the offence of driving while suspended is not a strict liability offence, there was no reasonable basis for the 2014 Warning Notice. 7. I do not accept that the applicant's defence of reasonable and honest mistake concerning his knowledge of the suspension of his license was unchallenged and should be accepted. Counsel for the respondent cross-examined the applicant about the circumstances. Counsel for the respondent may have not put directly to the applicant that the applicant was lying, however, in these circumstances there is no surprise to the applicant in the respondent taking a positon in the hearing and its closing submission that the applicant's explanation is implausible. 8. Mahoney JA said in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 (at 236) said: … failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested ... The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter. 1. The cross-examination of the applicant and the nature of the defendant's case made it clear that the applicant's defence of reasonable and honest mistake concerning his knowledge of the suspension of his license was challenged by the respondent. 2. The applicant's explanation that his mail had gone missing in the past is implausible. The applicant offered no other reason, such as a change in address, for his purported lack of knowledge of the suspension. 3. I do not need to find that the warning was fair or that matters underpinning it were made out on the balance of probabilities. I need only determine that the warning was not given without foundation, which in relation to the applicant's driving while disqualified and not notifying Superintendent Dzevlan of the suspension of his license, I so find. 4. The applicant challenges the finding by Inspector Dzevlan in the 2014 Warning Notice that the applicant failed to communicate with the other driver about the status of the applicant's insurance and arrangements that the applicant intended to make to have the vehicle repaired, on the basis that although the applicant was found to be the "at-fault" driver, there were civil proceedings which were dismissed seven months after the issuing of the 2014 Warning Notice. The applicant says that it was unreasonable for Inspector Dzevlan not to reopen the investigation after the civil proceedings were dismissed. 5. This submission is made in the absence of any evidence that the applicant requested that the investigation be reopened. Further, on the applicant's own admissions he was the "at fault" driver. The determination of the civil proceedings seven months later does not negate the foundation of the finding at the time it was made. 6. The finding in relation to the applicant failing to communicate with the other driver about the status of the applicant's insurance and arrangements that the applicant intended to make to have the vehicle repaired was not made without foundation. 7. Finally, the applicant did not challenge the finding that he identified himself as a police officer at the time of the incident. 8. Accordingly, I consider that Inspector Dzevlan did not issue the 2014 Warning Notice without a reasonable foundation for each of the breaches that he relied upon. The 2015 Warning Notice 1. The applicant was served with the 2015 Warning Notice in relation to the applicant's: 1. failure to adequately investigate two domestic assault incidents (on 24 September 2014 and 7 October 2014) in a timely manner; 2. failure to adequately record actions taken during the domestic violence incidents reported on 24 September 2014 and 7 October 2014; 3. failure to take immediate action regarding the domestic violence incidents reported on 24 September 2014 and 7 October 2014 contrary to the Domestic Violence Standard Operating Procedures; 4. REDACTED; and 5. REDACTED 1. The 2015 Warning Notice stated that any further misconduct could result in the consideration of reviewable action pursuant to s 173(2) or s 181D of the Police Act. 2. The applicant submits that the issuing of the 2015 Notice should be disregarded under the s 174(1) review being conducted by the Commission because: 1. the 2015 Warning Notice was issued by Superintendent Schilt without reasonable foundation; 2. Superintendent Schilt was not entitled to rely upon the fact of the 2014 Warning Notice as having previously been issued against the applicant; and 3. Superintendent Schilt was not entitled to rely upon the two allegations of failure to investigate the domestic violence incidents to ground the notice; nor should those allegations have been the subject of the notice. 1. Further to, or in the alternative, if the Commission finds that the 2014 Warning Notice was issued without reasonable foundation, the applicant submits that the issuing of the 2015 Warning Notice should be disregarded under the s 174(1) review being conducted by the Commission because: 1. the 2015 Warning Notice was harsh (as the only permissible allegations were those concerning the appointments which were admitted); and 2. Superintendent Schilt was not entitled to rely upon the fact of the 2014 Warning Notice as having previously been issued against the applicant when deciding to issue the 2015 Warning Notice; 1. The applicant asserts in his written submissions the following in support of the submissions in paragraphs 61 and 62: 43. The key findings relied upon to issue the 2015 Notice … as they concern the failure to investigate an incident [which took place on 24 September 2015] involving the complainant … are as follows: 43.1. On 24 September 2014 the applicant attended a domestic incident involving the complainant, … who complained he had been assaulted by [the accused]. 43.2. There were conflicting versions from persons at the scene and the applicant was advised by Sergeants Marsh and Morgan who were present at the scene to apply for an urgent provisional ADVO for the protection of [the complainant], which was done by the applicant and a Provisional ADVO was served on [the accused] later that shift. 43.3. On 1 October 2014 the applicant obtained a statement from [the complainant]. 43.4. On 7 October 2014 [the accused] was charged with assault. 43.5. The facts ultimately set out in the Facts Sheet relied upon for the charge were created by the applicant on 24 September 2014, which indicated he failed to receive any further information between 24 September and 7 October - hence [the accused] could have been charged on 24 September 2014. 44. The evidence supporting that Superintendent Schilt issued the 2015 Notice without reasonable foundation concerning the failure to investigate is as follows: 44.1. None of the supporting evidence relied upon by Superintendent Schilt to issue the notice is before the Commission for consideration. 44.2. The undisputed plain fact is that the applicant did obtain further information between 24 September and 7 October, namely a statement from the complainant …. 44.3. The fact that the narrative of facts contained in the Facts Sheet was not amended or further drafted after the 24th is irrelevant rather the issue is what information was proper and necessary for the applicant to have obtained in the investigative phase before deciding whether he had sufficient evidence to charge [the accused] in circumstances where there were conflicting views at the scene on the 24th. 44.4. The provisional ADVO had been served and was enforceable from 24 September 2014. 44.5. The applicant was advised to proceed the way he did on the evening of 24 September 2014 by Sergeants Morgan and Marsh who were present at the scene: See 2015 Notice and 17.9.18 T52.30. 44.6. There is no criticism of the applicant for not having obtained a statement from [the complainant] on the 24th 44.7. It was prudent for the applicant to have first obtained a statement from [the accused] before laying a charge, particularly in circumstances where there were conflicting views. 44.8. The statement was obtained on 1 October. The charge was laid on 7 October. There is no suggestion of any detriment in awaiting the charging of [the accused] after the statement from [the accused] was obtained. 45. The key findings relied upon to issue the 2015 Notice … as they concern the failure to investigate an incident [which took place on 7 October 2014] involving the complainant … are as follows: 45.1. On 7 October 2014 the applicant was on station duty and the complainant … attended the station and spoke to the applicant and reported she had been assaulted. The complainant stated that she did not suffer any physical injuries and she refused to wait to make a statement. The applicant gave the complainant his details on a business card and asked her to return to the station and make a formal report to him when he was next on duty on the 8th. 45.2. On the 8th the complainant telephoned the applicant and advised him she was unable to attend. Arrangements were made for her to attend when the applicant was next on duty on the 9th. 45.3. On the 9th the complainant attended and provided a statement. The applicant promptly created a COPS Event and, in consultation with Sgt Cook created a Case for Kogarah Police to interview the person of interest. The applicant applied for a non-urgent ADVO. 45.4. Sgt Cook realised that the applicant had first become aware of the allegation of assault on the 7th when the complainant attended the police station but did not take action until the 9th. 46. The evidence supporting that Superintendent Schilt issued the 2015 Notice without reasonable foundation concerning the failure to investigate is as follows: 46.1. None of the supporting evidence relied upon by Superintendent Schilt to issue the notice is before the Commission for consideration. 46.2. The applicant's limited cross-examination on this issue is at 17.9.18 T52.35 to TSS.40. His uncontested evidence is that: a. [the complainant] attended the station and reported that she had been assaulted and her car damaged (not that she had been punched to the ground): T52.35 - T53.5; b. [the complainant] refused to stay at the station on the 7th: T53.1O; c. The applicant pleaded with [the complainant] on the 7th to stay and provide the necessary information but she refused: T54.5; d. [the complainant] left the station on the 7th without the applicant knowing her name and he therefore had insufficient information to create a COPS Event: T54.20-.30; e. After [the complainant] provided a statement to the applicant on the 9th, he sought the advice of the Domestic Violence Liaison Officer Kath Madden about the urgency of the making of an application for an ADVO and, he followed her advice: T53.40 & 18.9.18 T2.25; f. The advice given by DVLO Madden was to obtain a non-urgent ADVO, which he did: 18.9.18 T2.30. 1. The supporting evidence relied upon by Superintendent Schilt regarding the domestic incident on 24 September 2014 and the incident initially reported to the applicant on 7 October 2014 is not before the Commission. However, the applicant was cross-examined on his version of events. 2. In relation to the 24 September 2014 matter, the applicant admitted he did not take photos of, or obtain a statement from, the victim and that the applicant was ultimately charged with the same information that was available on the 24 September 2014. 3. In respect of the incident on 7 October 2014, the applicant admitted: the complainant left the station without him obtaining her name; he did not create an event in COPS for two days and then he made errors in creating the event (such errors including putting the alleged victim's name on the application); he obtained a non-urgent ADVO rather than an urgent ADVO; and did not create any follow up events on the system. However, the applicant says that he relied on advice of the Domestic Violence Liaison Officer as the reason that he obtained a non-urgent ADVO and he does not accept that he was ultimately responsible. The applicant fails to understand the seriousness of his admissions and his failure to act with urgency or pro-actively in relation to the domestic violence incidents on 24 September 2014 and 7 October 2014. 4. REDACTED 5. REDACTED 6. REDACTED 7. REDACTED 8. REDACTED REDACTED REDACTED REDACTED 1. REDACTED Q. REDACTED A. REDACTED Q. REDACTED A. REDACTED 1. I do not need to find that the warning was fair or that all matters underpinning it were made out on the balance of probabilities. I need only determine that the warning was not given without foundation, which I so find in respect of each of the matters underpinning the 2015 Warning Notice and set out at paragraph [59]. General submissions by the applicant about the 2014 Warning Notice and the 2015 Warning Notice 1. The applicant submits that the respondent should not be permitted to rely on the 2014 Warning Notice and the 2015 Warning Notice to any extent but particularly to support a submission to the effect that: 1. the applicant has not taken adequate steps to properly address previously identified performance and conduct issues; 2. the applicant continues to provide excuses and shift blame for a number of past disciplinary issues; 3. the applicant has a prior history and has received prior warnings for inadequate investigation of domestic violence matters; 4. the applicant's complaint history is indicative of a pattern of repeated failure to meet expectations, in particular a failure to follow NSW Police Force policy in the carrying out of his duties; and 5. the applicant's complaint history demonstrates he requires increased levels of supervision akin to that usually provided to a constable. 1. Further, the applicant submits that there is procedural unfairness resulting from: 1. the disconnect between the applicant's "proper disciplinary history" to the "more expansive disciplinary history" relied upon in the making of the Disciplinary Order; 2. giving excessive weight to the broader and incorrect disciplinary history in the making of the Disciplinary Order; 3. the reasoning in the Disciplinary Order that the applicant had already received the 2014 Warning Notice and the 2015 Warning Notice in relation to the manner in which he conducted his duties; and 4. the reasoning in the Disciplinary Order that the applicant "failed to adjust [his] approach towards [his] official duties despite numerous opportunities to do so". 1. The applicant does not submit that the procedural failures are determinative of the question of whether the Disciplinary Order is harsh, unreasonable or unjust but rather that the alleged procedural failures contribute to the ultimate determination of that issue and should be taken into account as part of the fabric of the review. 2. The applicant submits further that the 2014 Warning Notice is also detrimental to him by it having adversely affected his emotional state, such that it played a pivotal role in his perception of him being treated unfairly by Superintendent Dzevlan, his Commander. The applicant's Closing Submissions state: The applicant felt that he was being treated unfairly as there was a build-up of things not going right in regard to the car accident the subject of the 2014 notice, and things then started to fall apart... It is submitted that the circumstances surrounding the issuing of the 2014 Notice well justify and support a perception on the applicant's part that he was being treated unfairly by his superiors in particular Superintendent Dzevlan. Findings in relation to the applicant's disciplinary history 1. Given my findings that the 2014 Warning Notice and the 2015 Warning Notice were not given without reasonable foundation then the respondent is not precluded from relying on the warnings to support submissions such as those set out at paragraph [74] and there is no procedural fairness arising from the matters set out at paragraphs [75] and [76]. The matters set out at paragraph [77] are not substantiated and have not been given any weight. Alleged Misconduct 1. In making the Disciplinary Order the respondent relied on eleven sustained allegations of misconduct. 2. The eleven allegations are: 1. Provided false information in a statement dated 7 January 2015 to Employer's Mutual Limited ("EML") (Allegation 1) ; 2. Untruthful or less than fully frank in subsequent interview (Allegation 2); 3. Failed to attend an incident in a timely manner (Allegation 3); 4. Failed to investigate an assault at Goulburn Correctional Facility (Allegation 4); 5. Failed to adequately prepare a brief of evidence including failure to obtain statements requested by the Police Prosecutor (Allegation 5); 6. Failed to issue a subpoena as requested by the Police Prosecutor (Allegation 6); 7. Failed to adequately investigate a domestic violence incident on 11 May 2018 (Allegation 7); 8. Failed to investigate a fraud matter (Allegation 8); 9. Failed to create a COPS event for a fraud matter (Allegation 9); 10. Failed to investigate a fraud matter (Allegation 9); 11. Failed to investigate Pool Room matter (Allegation 10); and 12. Untruthful about Pool Room investigation (Allegation 11). Admitted Allegations 5, 6, 8, and 9 1. The applicant admits to the conduct in respect of Allegations 5, 6, 8, and 9 but asserts that the conduct was not misconduct for the purposes of s 173 of the Police Act. The applicant relies on Pillai v Messiter (No 2) (1989) 16 NSWLR 197 ("Pillai (No 2)") and McDiarmid v Commissioner of Police [2012] NSWIRComm 100 ("McDiarmid"), and submits that "misconduct" involves something more than mere negligence, error of judgement or innocent mistake, and the following do not constitute misconduct: 1. mere professional incompetence; 2. deficiencies in the practice of policing or non-mandatory procedural processes; 3. omissions or mistakes or carelessness of an innocent nature without more; 4. the bona fide exercise of discretion or the making of a value judgement decision. 1. The respondent does not cavil with the "Pillai v Messiter taxonomy": errors, missteps on the one hand; and something wrongful, improper or indifferent on the other. The respondent says however, that it is necessary to bear in mind the statutory context in which the term is used, and Pillai (No 2) was a case about negligence and its interaction with the professional duties of a medical practitioner. 2. The respondent submits that the context in this case is important and s 173 of the Police Act is misconduct which necessarily has nothing to do with negligence in the sense that it is understood in the law of torts. The type of misconduct dealt with pursuant to s 173 of the Police Act is misconduct which will almost always fall short of gross misconduct which would justify dismissal. The respondent says that it is necessary not to take statements made in different contexts too literally or to parse them too closely and, notes that Justice Boland, in McDiarmid, pointed out that he would not place too much weight on the need for obstinate indifference to the consequences of one's actions, which was the term that was used by the Court of Appeal in Pillai (No 2). 3. I agree that misconduct in the context of s 173 of the Police Act may, and will usually, be something less than conduct which would amount to "serious misconduct". Recognising this distinction in Whyte in the context of s 173, Sams DP held: [14] ... findings of gross or wilful misconduct would usually result in a Commissioner's loss of confidence removal order under s 181D of the Act. 1. In McDiarmid, Justice Boland considered the meaning of "misconduct" and stated: [124] The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated: In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry 128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word "misconduct" have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way "misconduct" is used in everyday speech. [125] Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met. 1. In Pillai (No 2) the conduct was the failure to pick up a mistake in a prescription in a medical negligence case. As the President of the Court of Appeal stated (at pp 201-202): … There is objective evidence that numerous other medical practitioners and experienced members of the nursing staff likewise failed to pick up the same mistake. Not a single one of them was subject to disciplinary proceedings. 1. The conduct which the applicant admits in relation to Allegations 5, 6, 8, and 9 is different from the conduct of the medical practitioner in Pillai (No 2) and it is conduct which is being considered in a review pursuant to s 174 of the Police Act, not s 181D. The applicant admits that he failed to carry out his duties on four separate occasions in circumstances in which, amongst other things: he had received the 2014 Warning Notice and the 2015 Warning Notice; he was on a conduct management plan; and he had received counselling for performance matters. 2. In Whyte, Sams DP held: [302] [The respondent] said the meaning of misconduct was improper or unacceptable conduct or behaviour: See Pillai v Messiter (No 2) (1989) 16 NSWLR 197 and in the police context included breaches of the Police Regulations, the New South Wales Police Standards of Professional Conduct and New South Wales Police Code of Conduct, which includes upholding the values and good reputation of the New South Wales Police Force, whether on or off duty. The approach is consistent with the Full Bench authority in New South Wales Attorney-General's Department v Miller (2007) 160 IR 185. 1. The positions stated by Boland J and Sams DP are the ones which prevail. The Commission has held that breaches of the Police Regulation, or the New South Wales Police Force's Code of Conduct, or its policies, will be sufficient to establish misconduct: see Allison v Commissioner of Police [2018] NSWIRComm 1005 at [137] and Grant Hilton Wright v Commissioner of Police [2015] NSWIRComm 1016. 2. Allegations 5 and 6 relate to the applicant's conduct subsequent to the laying of charges in relation to the assault which is the subject of Allegations 3 and 4, the details of which are set out at paragraphs [147] to [150]. The basis of Allegations 5 and 6 is that the applicant neither obtained statements nor subpoenaed the corrections officer. As a result, the prosecution was unable to lead evidence and the charges were withdrawn with a costs order made against the NSW Police Force. 3. I agree with the findings of the delegate that the conduct which was admitted by the applicant in respect of Allegations 5 and 6 was contrary to: 1. s 7(e) of the Police Act; 2. cl 8 of the Police Regulation 2015 (in force at the time) - performance of duties by police officers; 3. points 2 and 3 of the NSW Police Force Code of Conduct and Ethics; and 4. the NSW Police Force Handbook in relation to "Court Matters" in respect of Allegation 5 only. 1. Allegation 8 is that the applicant failed to investigate information relating to a fraud report dated 28 April 2014. This conduct was discovered during an audit of the applicant's pigeon hole. During the audit a number of what appeared to be unactioned items, including a Fraud Reporting Form dated 28 April 2014 which was marked with the applicant's name, were found in the applicant's pigeon hole. 2. On 8 June 2016, the applicant was questioned by Sergeant Jeffrey Morgan about various matters including the Fraud Reporting Form referred to in paragraph [92]. The applicant recalled no specific recollection of the form although he recalled "one where the people rang back and said their money had been reimbursed by the bank and they weren't worried about it. I don't know if it's this one". 3. The conduct which was admitted by the applicant in respect of Allegation 8 was found by the delegate to be contrary to: 1. s 7(e) of the Police Act - strives for citizen and police personal satisfaction; 2. cl 8 of the Police Regulation 2008 (in force at the time) – performance of duties by police officers; and 3. points 2 and 3 of the NSW Police Force Code of Conduct and Ethics. 1. The applicant admits to failing to investigate the information relating to the fraud report which amounts to a failure to carry out his duties as a police officer. I agree with the findings of the delegate set out at paragraph [94]. 2. Allegation 9 is that the applicant failed to create a COPS Event in relation to the Fraud Reporting Form dated 28 April 2014. The failure to carry out this duty is admitted by the applicant. 3. The conduct which was admitted by the applicant in respect of Allegation 9 was found by the delegate to be contrary to: 1. s 7(e) of the Police Act - strives for citizen and police personal satisfaction; 2. cl 8 of the Police Regulation 2015 (in force at the time) - performance of duties by police officers; and 3. points 2 and 3 of the NSW Police Force Code of Conduct and Ethics. 1. I agree with the findings of the delegate set out at paragraph [97]. 2. The breaches of the New South Wales Police Force's Code of Conduct and Ethics, the Police Act, the Police Regulations, NSW Police Force Handbook in relation to "Court Matters", are sufficient to establish that the conduct of the applicant admitted in respect of Allegations 5, 6, 8 and 9 is misconduct: see Allison v Commissioner of Police [2018] NSWIRComm 1005 at [137] and Grant Hilton Wright v Commissioner of Police [2015] NSWIRComm 1016. Allegation 1 – Provided false information in statement and Allegation 2 – Untruthful or less than fully frank in subsequent interview Summary of incident/issue and findings of the delegate in respect of Allegation 1 1. Allegation 1 is that the applicant provided false information in a statement given on 7 January 2015 to an investigator from Employers Mutual Limited ("EML"), Greg Lees, in relation to a WorkCover claim ("the EML Statement") the false information the respondent asserts in the EML Statement being the following: 1. at paragraph 59 of the EML Statement, the applicant stated: I am not, nor have I ever been, on any Performance Management Plan or a Conduct Management Plan. 1. at paragraph 69 of the EML Statement, the applicant stated: I had never been spoken to about my work performance. Never. 1. Superintendent Schilt found Allegation 1 to be proven and concluded that this conduct was contrary to: s 7 of the Police Act (place integrity above all); cl 8 of the Police Regulation 2008 (comply strictly with the Police Act and the Police Regulation and comply with lawful orders); the NSW Police Handbook (act honestly, in accordance with the Oath of Office, the Code of Ethics and the Statement of Values); and Point 1 of the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police whether on or off duty; comply with the law). Summary of incident/issue and findings of the delegate in respect of Allegation 2 1. Allegation 2 is that the applicant was untruthful or less than frank in an interview with Inspector Quarmby on 20 July 2016. The subject of the interview with Inspector Quarmby was the interview with Mr Lees about the applicant's workers compensation claim and the EML Statement. The applicant was cautioned at the commencement of the interview with Inspector Quarmby. 2. The applicant told the Inspector during the interview that: 1. to the best of his knowledge he was never placed on a conduct management plan; 2. when he signed "happy with plan" on the May monthly report he was indicating that he was happy with the 2014 Warning Notice and not the 2014 CMP; 3. there had never been any review of the 2014 CMP or any conversation that could be construed as a review. 1. Superintendent Schilt found Allegation 2 to be proven and concluded that this conduct was contrary to: s 7 of the Police Act (place integrity above all); cl. 8 of the Police Regulation 2008 (comply strictly with the Police Act and the Police Regulation and comply with lawful orders); the NSW Police Handbook (act honestly, in accordance with the Oath of Office, the Code of Ethics and the Statement of Values); and Point 1 of the Code of Conduct (behave honestly and in a way that upholds the values and good reputation of the NSW Police whether on or off duty; comply with the law). Submissions The applicant's submissions about Allegation 1 1. The applicant submits that he was suffering emotional and health problems at the time he was interviewed and gave his statement on 7 January 2015, and that his evidence as to these emotional and health problems, including his poor psychological state and the effect on his memory and concentration, is uncontroverted. 2. The applicant gave evidence about his poor psychological state and the symptomology from which he suffered from 2014 until about March 2015 and his more general emotional distress following the breakdown of his relationship with his fiancé that ended in 2014. 3. The applicant refers to his evidence in cross-examination: Q Now, Mr Flynn, how could it possibly be the case, in those circumstances, when you're spoken to on 7 January 2014 [Note: Should be 2015], that you were unaware or you forgot that you were on a conduct management plan? A Because at the time when Mr Lees came out to interview, he came to my own home. I was - he arrived there at 8 o'clock in the morning, approximately. I - the reason why I was off in the first place and I went and saw my doctor was that I was concerned for my health, I wasn't sleeping, I was depressed, a number of things in regard to my health and how I was feeling and how I was reacting and not reacting. So, when Mr Lees turned up, I openly told him that I wasn't feeling up to full strength and l wasn't - that's the reason why I was off and I was interviewed for 12 hours by Mr Lees. I was tired, I wasn't thinking straight. At no time did I try to mislead Mr Lees. I answered the questions to the best of my ability, given how I was feeling at the time. Q. See, Mr Flynn, this wasn't some detail. It was a pretty simple point, that you were on a conduct management plan. Now, accepting, for the sake of argument, that you were tired, that you weren't feeling particularly well, what I want to suggest to you is that it's totally implausible, isn't it, that you would have forgotten that you were on a conduct management? A. That's incorrect. My mind, the reason why I went off work was because I didn't want to be in the situation of getting myself into further trouble because (a) I wasn't thinking straight while I was at work, I was concerned about that and I didn't want to leave myself open to possibly making another mistake or anything where I wasn't - I wasn't on the ball, so to speak. And the same thing when I was talking to Mr Lees, I wasn't on the ball and I wasn't thinking to the best of my ability, as I would be if I was - felt better within myself and I was just my normal, happy self. 1. The applicant submits that his evidence establishes that he participated in the interview with Mr Lees on 7 January 2015 despite how he was feeling and not knowing that he could have refused the interview or postponed it. The applicant further submits that although, does not suggest that he did not give the interview voluntarily, that if he was given the option not to give the statement at the time, then he may not have given it. 2. The applicant also refers to the evidence given by Chief Inspector Sheehan in cross-examination, that the Chief Inspector noticed that the applicant "became probably withdrawn, more withdrawn, a bit quieter". 3. To establish the applicant's condition, the applicant relies on the medico-legal report of Associate Professor Michael Robinson, consultant psychiatrist, dated 20 March 2015. Associate Professor Robinson was engaged by the respondent's workers compensation insurer. The applicant's written submissions state: 59. Mr Flynn gave a history … about the motor vehicle collision which is the subject of the 2014 Notice. He reported that his mental state deteriorated with the emergence of insomnia, mild neuro-vegetative disturbance, ruminating over the situation, gastrointestinal disturbance and excessive worry over the circumstances. 60. Associate Prof Michael Robinson diagnosed the applicant as presenting with a mild adjustment disorder with anxious mood noting that (as at 20 March 2015) his current level of psychopathology was on the margins of clinical significance but also that his GP had previously considered his symptoms were in excess of a normative psychological response: at page 5 & 6. 61. Associate Prof Michael Robinson opined that the factual investigation during the complaints process resulted in an initial psychopathological response which by the time of the assessment in March 2015 had resolved: at page 6. He stated that "what can be determined is that Mr Flynn's primary psychopathology is in relation to his problematic interactions with his employer ... 62 Superintendent Dzevlan did not take the applicant's emotional state into account when determining the proposed action in the Notice… 63. Superintendent Schilt did not take the applicant's emotional state into account in the Order. (footnotes omitted) 1. The applicant also submits that Mr Lees dealt with the applicant unfairly by not showing the applicant a copy of the 2014 CMP. The applicant's submissions about Allegation 2 1. The applicant denies that he was untruthful, or less than fully frank, during the interview with Inspector Quarmby on 20 July 2016. 2. The applicant's evidence is that when he was interviewed on 20 July 2016 he was "still depressed" and "still not sleeping". The applicant submits that this evidence is unchallenged and supported by character witnesses who observed distinct adverse changes in his personality and mental state during the complaints process. 3. The applicant submits that in relation to the serious allegations of untruthfulness, or of being less than fully frank, the distinction between a finding of untruthfulness and a finding that certain evidence cannot be accepted and presumably that certain information is merely incorrect, has been considered in a number of authorities, including Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 268 and 271 and O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230. The importance of the distinctions is important as for untruthfulness to be established there needs to be an affirmative finding that there has been a deliberate lie told or that the assertion was made with intent to mislead. 4. The applicant submits that partaking in the interview should not be viewed in abstract. It should be viewed in the setting of the applicant's evidence itself and not without weighing in the background of the previously diagnosed adjustment disorder with anxious mood that resulted from a psychopathological response to the complaints process; and the more general emotional distress resulting from the slow breakdown of his relationship with his fiancé that ended in 2014 and which resulted in him suffering a great deal of emotional distress from 2014 until about mid-2016. 5. The applicant submits that the fact that the applicant having written "Happy with plan" on the May 2015 report needs to be considered in light of the 25-month gap between the writing of the words and the July 2016 interview, which should be factored and weighed in light of the applicant's psychological state at the relevant times. 6. An innocent explanation falling far short of untruthfulness suggested by the applicant is that the applicant may have forgotten why it was that he wrote the words on the report or what his state of mind was at the time about the existence of the conduct management plan, which is consistent with his answers in cross-examination. 7. The applicant submits that the 18-month gap between the statement dated 7 January 2015 and the interview on 20 July 2016, is a significant period of time making it extremely difficult for the applicant to have grappled with, when he was trying to recast his mind back to what he believed was his state of mind about the conduct management plan and explain and articulate his answers carefully to properly explain his position. 8. The interview dated 20 July 2016 should be considered in light of what was shown to the applicant during the interview and the flow of conversation throughout the interview. It should be read as a whole and not particular answers read in isolation. 9. The applicant submits that his answers were, in the main, retrospective with him attempting to recall his state of mind and the understanding he had about the conduct management plan at the time of giving the statement on 7 January 2015 and, having recalled his state of mind and understanding, attempted to frame-up and articulate his answers accordingly. The applicant submits that this approach during the interview with Inspector Quarmby was highly artificial and made it prone for him to become confused and for his answers to be misunderstood. 10. The applicant submits that many of the investigator's questions are prefaced with "Do you recall?" and the applicant's answers are littered with qualifying phrases such as "to my knowledge", "the knowledge that I had", "to the best of my knowledge", "not that I know of" - which are consistent with the applicant trying to emphasise and explain his state of mind at the time he made his statement on 7 January 2015. This construction is also consistent with the multiple answers he gave in cross-examination. 11. The applicant's evidence in cross-examination (17.9.18 T42.5-.30) is that: Q. Can you give any explanation as to why those facts would have slipped your mind? A. It's not a matter that they slipped my mind. As I explained earlier, I was already going through a bad period. I'd already been interviewed by Mr Lees and everything else in regards to that and it was highly stressful. The whole, this whole situation, at the time l wasn't sleeping. It was affecting me psychologically and physically. So, when Mr Quarmby approached me and told me again, informed me I was being interviewed in regards to not being untruthful and everything else, or allegedly being untruthful to Mr Lees and being interviewed, I was in total shock because I - like, it was a kick in the guts because I knew I was doing everything to the best of my ability. I was the one who wanted to get back to work, so when they interviewed me in regards to that I answered to the best of my ability. As I already told before that I don't disagree that I signed the plan, that's my signature. But at the time I was talking to Mr Lees and doing, given my condition and health, I forgot. I forgot a lot of things, that's why I went off. Q. Mr Flynn, at the point of this interview, I think you've agreed with me that you're at work, going about your usual duties? A. Yes, I was. Q. And this wasn't a period where you were suffering from some disability or something that prevented you from carrying out your duties? A. I don't know if you call - I wouldn't call it a disability but I wasn't 100 per cent. just came back from work after a series and I wanted to get back on my feet. was still depressed, I was still not sleeping. The respondent's submissions about Allegations 1 and 2 1. The respondent submits that it is implausible that as at January 2015, the applicant, as he contends, genuinely believed that he had never been spoken to about his performance and was not on a CMP in circumstances where the applicant: 1. during the preceding nine months, was the subject of a Commander's Warning Notice about various failures, a formal counselling report dealing with security of appointments, and had been placed on the Domestic Violence High Risk list because of his failures in relation to domestic violence ("DV") matters; 2. read, signed and understood the Commander's Warning Notice and CMP, and regarded the issue of the warning as a serious matter; 3. attended a series of meetings with Chief Inspector Sheehan as required by the plan; 4. signed at least two documents headed "May monthly report for Senior Constable Flynn in regards to Conduct Management Plan" and "September monthly report for Senior Constable Flynn in regards to Conduct Management Plan"; and 5. immediately recalled the Commander's Warning Notice when asked about it by Inspector Quarmby 18 months later in July 2016 (see Allegation 2 below). 1. The respondent submits that the Commission would readily conclude that the applicant: 1. dishonestly denied ever having been spoken to about his performance or placed on a conduct management plan during his interview with EML in January 2015; 2. did so to improve the prospects that his workers compensation claim would be accepted; 3. falsely denied to Inspector Quarmby that he had intentionally lied to EML; and 4. in these proceedings continues to falsely deny his dishonesty in both interviews. 1. The respondent says that the matters or things that the applicant said that he now admits are untrue cannot be explained on the basis that the applicant's personal life was unsettled and/or that he was suffering from a mental illness or a psychological condition of some kind. In order for this to be the case, the relevant condition or a disability must have persisted from January 2015 to July 2016. The respondent accepts that it is conceivable that there could be psychological conditions which would lead to some gross loss of mental function or memory which could explain statements that were obviously wrong but honestly proffered. However, there is nothing in this case that demonstrates that the applicant was labouring under that kind of mental disability or psychological condition apart from the applicant's own assertions that he was feeling unwell, stressed and so on, there is next to no medical evidence. 2. The respondent says that the medical evidence relied on by the applicant is a medico-legal report which would ordinarily not be entitled to any great weight in circumstances where it is several years old, and the author has not given evidence. The respondent says that the psychiatrist determined that the applicant was not suffering from any disorder of thought, form or thought content. The psychiatrist's diagnosis was mild adjustment disorder with anxious mood. The level of pathology, the psychiatrist said, was at the margins of clinical significance which the respondent submits is a minor psychological injury. The psychiatrist recorded that the general practitioner seemed to have decided that there was something in excess of a normal psychological response but that that had settled with a modicum of psychological therapy and ultimately the psychiatrist concluded that there was no reason why the applicant could not return to full operational duties. 3. The respondent submits that there is no evidence in this case, that would satisfy the Commission that the applicant's condition as at 7 January 2015 and again in July 2015 when he was interviewed by Inspector Quarmby, was so profound that it would temporarily erase his memory. A mild adjustment disorder with anxious mood which is on the margins of clinical significance is no explanation whatever for the falsehoods which appeared both in the statement and in the transcript of the Quarmby interview. 4. The respondent also refutes the applicant's broader submission that the explanation for the applicant's psychological condition explains or ameliorates the significance of the applicant's conduct over a number of years on two bases. Firstly, there was a 32 page response to the 173 show cause notice which did not suggest that the applicant's behaviour over the last few years is the product of some psychological condition, and secondly, there was no evidentiary foundation. 5. Finally, in relation to Allegation 1, the respondent denies that Mr Lees breached any procedural fairness obligation in not showing the applicant a copy of the 2014 CMP. Consideration re Allegations 1 and 2 1. Despite the number of times the applicant stated words to the effect of "to the best of my knowledge" or "best of my memory" in his interviews, I do not accept that in the serious circumstances of the giving of the EML Statement and the circumstances of the 20 July 2016 interview, that a person who: admits that the 2014 CMP was read to him, he read it, and he then signed it; and says: "It's not his practise to sign documents that he hadn't read", simply forgot about the 2014 CMP. 2. Despite the applicant's submissions to the contrary, this is not a case where the circumstances of the applicant's knowledge or memory of the 2014 Warning Notice and 2014 CMP "give rise to nothing but conflicting conjectures of equal degrees of probability": Luxton v Vines [1952] 85 CLR 352 per Dixon, Fullagar and Kitto JJ at p. 360. 3. The applicant received a commander's warning notice on 28 April 2014, he read it, it was read to him and he signed it and he accepts that the issue of a commander's warning notice is a serious issue and not something that's routine. The 2014 Warning Notice referred to the need for the applicant to enter into a conduct management plan and that occurred on 1 May 2014. The applicant signed the CMP Monthly Report for the month of May with the addendum, "happy with plan". 4. There were a series of meetings between Inspector Sheehan and the applicant about the 2014 CMP. During the course of the meetings the applicant was placed on the "DV high risk list" because of his failures in dealing with domestic violence matters consistent with procedures. 5. On 10 December 2013, the applicant received the last in a series of memoranda related to his meetings with Inspector Sheehan. It was less than a month later that the applicant gave the EML Statement. The applicant gave the EML Statement knowing that the determination of his workers compensation claim, in which he asserted that he had been treated unfairly and that led to a psychological injury, would depend on the question of whether he had been treated reasonably or otherwise, and said "I am not nor have I ever been on any performance management plan or a conduct management plan" and "I have never been spoken to about my work performance, never". 6. Despite the applicant's assertion of his confusion, the known facts set out above and summarised in paragraph [123] allow for a reasonable conclusion to be drawn, that is, that on the balance of probabilities it is true, (Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 per Street CJ (at p 264)) that: 1. the applicant dishonestly denied ever having been spoken to about his performance or placed on a conduct management plan during his interview with EML in January 2015; and 2. falsely denied to Inspector Quarmby that he had intentionally lied to EML. 1. I do not accept that the applicant's conduct as alleged in Allegation 1 was a mere mistake, or error in judgment or in the exercise of discretion. I am satisfied that the applicant's conduct was motivated by premeditated or intentional purpose or by indifference to the consequences of his acts. The misconduct was reckless or careless indifference and thus the test in Pillai (No 2) would be met. 2. Six months later the applicant was back at work on full duties and interviewed by Inspector Quarmby. In that interview, which is the subject of Allegation 2, the applicant said that he was not on a conduct management plan, he did not recall being on a conduct management plan, he had never had any meetings with Inspector Sheehan in connection with a conduct management plan and no one had ever spoken to him about his progress with the plan. The applicant denied that he had had conversations that could be construed as reviews under the conduct management plan and that when he signed the CMP Monthly Report for the month of May, "Happy with plan", he was indicating that he was happy with the warning that he had been given. 3. In Pillai (No 2) the conduct was the failure to pick up a mistake in a prescription. As the President of the Court of Appeal stated (at pp 201-202): … There is objective evidence that numerous other medical practitioners and experienced members of the nursing staff likewise failed to pick up the same mistake. Not a single one of them was subject to disciplinary proceedings. 1. The conduct of the applicant is different from the conduct the subject of Pillai (No 2). The applicant answered a question about a fact that should have been well known to him, for which he had been subject to disciplinary action and placed on a conduct management plan. 2. It is common ground that the things that the applicant said were not true. The applicant submits that his untruthfulness was a consequence of his unsettled personal life and/or that he was suffering from a mental illness or a psychological condition of some kind. As the respondent concedes, it is conceivable that there could be psychological conditions from which the applicant suffered from January 2015 to July 2016 when the applicant was interviewed by Inspector Quarmby that led to a gross loss of mental function or memory such as psychosis or some total or substantial mental breakdown. It is not inconceivable that there could be a condition of that kind which would explain statements that were obviously wrong but as the respondent submits there is insufficient evidence in this case, to satisfy the Commission that the applicant's condition as at 7 January 2015 and again in July 2016 when he was interviewed by Inspector Quarmby, was so profound that it would erase his memory. 3. When cross-examined on 11 December 2018 about relevant dates in his statement made 23 November 2018, including dates that the applicant took leave, and the date that the applicant says he resubmitted a site diagram in relation to a motor vehicle collision into the COPS system, the applicant displayed confusion about the date that his mother passed away. This date is relevant because the applicant explained the calculation of certain dates in his statement by reference to the date of his mother's passing. 4. When assessing the applicant's evidence and case, and the submission that the applicant's conduct can be explained by a medical condition, particularly in relation to Allegations 1 and 2, I have taken into account the applicant's apparent confusion when giving evidence. I have also taken into consideration the fact that the statement of 23 November 2018 was made after the hearing of this matter for three days in September, which included cross-examination of the applicant. The applicant had access to material by which he could have calculated the dates of his leave for the purpose of providing the additional evidence to the Commission including the statement of 23 November 2018. The applicant instead gave a statement with incorrect dates and attempted to convince the Commission that these dates were correct by reference to a personal loss suffered by the applicant. 5. After considering these matters and the submissions of both parties, I agree with the respondent that the report of Associate Professor Michael Robinson and the evidence from the applicant's general practitioner are not sufficient to support the applicant's explanation that his behaviour and dishonesty can be explained by his psychological condition. 6. Finally, I do not consider that Mr Lees acted unfairly by not providing a copy of the 2014 CMP to the applicant. 7. I find Allegations 1 and 2 proven on the balance of probabilities on the standard set out in Briginshaw v Briginshaw 60 CLR 336 ("Briginshaw"). I agree with the findings of Superintendent Schilt set out at paragraphs [101] and [104]. 8. I agree with the respondent that my findings in relation to Allegations 1 and 2 which are findings of dishonesty in a police officer are sufficient basis for the Disciplinary Order. However, for completeness, I will deal with the balance of denied allegations. Allegation 3 – Failed to attend an incident in a timely manner and Allegation 4 – Failed to investigate an assault at Goulburn Correctional Facility Summary of Allegation 3 and findings in respect of Allegation 3 1. On 30 August 2015, the applicant was performing duty at Goulburn Police Station as a Station Officer. The applicant received a telephone report of a serious assault at Goulburn Correctional Centre. The applicant did not take any action in respect of the assault. The applicant says he did not take action on 30 August 2015 because the corrections officer said that she would send a report by fax, but instead sent the report by email. At 3:01pm on 30 August 2015 an email was received at the applicant's work email address. The following day Correctional Centre staff contacted a sergeant at Goulburn Police Station to ask for an event number, at which point it was discovered that no action had been taken by the applicant. 2. Superintendent Schilt found Allegation 3, that the applicant failed to attend an incident reported to police, which occurred at Goulburn Correctional Centre, in a timely manner, to be proven, and concluded that this conduct was contrary to: s 7 of the Police Act (place integrity above all); cl. 8 of the Police Regulation 2008 (comply strictly with the Police Act and the Police Regulation and comply with lawful orders); the NSW Police Handbook (act honestly, in accordance with the Oath of Office, the Code of Ethics and the Statement of Values); and Points 2 and 3 of the Code of Conduct (act with care and diligence and know and comply with all policies, procedures and guidelines). Summary of Allegation 4 and findings in respect of Allegation 4 1. On 31 August 2015, at the direction of Acting Sergeant Johanson, the applicant attended the Goulburn Correctional Centre. The alleged victim of the assault referred to in paragraph [147], who was in the infirmary at the Correctional Centre, indicated that he did not wish the matter to be investigated. There was however, sufficient evidence in the form of CCTV footage and other witness evidence to proceed without the victim's cooperation. Nonetheless, the applicant took no further other action. 2. Superintendent Schilt found that the allegation that the applicant failed to investigate the report of the assault on 30 August 2015 at Goulburn Correctional Centre ("Allegation 4") to be proven, and concluded that this conduct was contrary to: s 7 of the Police Act (place integrity above all); cl. 8 of the Police Regulation 2008 (comply strictly with the Police Act and the Police Regulation and comply with lawful orders); the NSW Police Handbook (act honestly, in accordance with the Oath of Office, the Code of Ethics and the Statement of Values); and Points 2 and 3 of the Code of Conduct (act with care and diligence and know and comply with all policies, procedures and guidelines). Submissions The applicant's submissions regarding Allegations 3 and 4 1. The applicant submits that the factual matters relied upon to ground Allegations 3 and 4 do not constitute misconduct. 2. The applicant submits that it was appropriate for him to take the basic information about the job and await the receipt of the facsimile report before making a COPS event. The applicant says that the criticism lies in whether or not he ought to have made a telephone call and chased up the receipt of the report prior to the end of his shift or alternatively decided to create a Computerised Automated Dispatch ("CAD") job and send a car crew to the Correctional Centre after receiving the telephone call on the basis that he was told that the full extent of the injuries had not been ascertained. 3. The evidence about what the applicant was told during the telephone call by the correctional officer is contained in the applicant's response to the Directive Memorandum dated 30 September 2015, in which the applicant states: During the course of the conversation the female correctives officer stated that she was reporting an alleged assault on inmate, the female officer stated the inmate wanted nil action taken as a result of the assault. The female officer to the best of my knowledge also stated: "We are still not aware of the full extent of his injuries". 1. The applicant says that the information known to the applicant when he terminated the telephone call and made the decision to await the facsimile report was consistent with usual practice and, the information conveyed to him did not constitute knowledge on his part that there was a serious assault involving serious injuries. 2. When cross-examined about the applicant's decision as to whether or not to create a CAD job, Sergeant Morgan's evidence was: Q. So that the thing is when the phone call was received, Mr Flynn isn't told that it's a serious assault. Its right for him to wait for the fax report to come in to process it, like you said, isn't it? A. That's correct. Q. It would be unnecessary for him to have created a computer aided despatch job which is referred to as CAD job, which sends a car crew out? A Well it depends on what he asked as well. Did he ask any questions? I don't know. Q. The difficulty is you didn't obtain the recording, did you? A. No. Q. So you don't know anything different other than Mr Flynn's saying that he wasn't told it was serious? A. That's correct. … Q. So not sending a car crew out on the day, there was nothing wrong with that was there? A. No, if he thinks it's a minor assault and there's nothing else to it, then I wouldn't send a car crew out either. 1. When cross-examined about the applicant's decision as to whether or not to create a CAD job, Chief Inspector Sheehan's evidence was: Q. So it was a choice that he would make? A. Yes. 0. You would elect, decide how you're going to deal with this? A. Well, it's not his choice. It's how the job is. So if it was the minor assault then, yes, that's done by the station officer. It's not given to the car crew. If it's a serious matter, it should've been straight away given to the car crew to go in and investigate it. So it's one or the other. There's no, "Okay, I think I'll do a serious one myself today within the station." That's not - you can't do that. It's got to be - the only matters that are created in a COPS event by the station officer is the minor matters where both persons have signed to say they want no action and it's like a minor assault or a minor scuffle between inmates. 1. The applicant says that the crux of the allegation falls to that which was identified by Superintendent Schilt in cross-examination: Q. Did you consider that this particular complaint of assault at the gaol was one that required a car crew to attend on 30 August or not? A. I'd say if Michael had put the information on the computer and he'd satisfied himself through consultation with his supervisor that that will suffice until he gets an opportunity to follow it up, that would have been fine, but if he didn't do that, he then had to make the phone call and chase it up and the worst case scenario, yes, would be if, for example, nobody had any information, couldn't get through to who they needed to speak to, then we send somebody out to the gaol. We have to do that. … Q. Or do you make a COPS event because you asked lots of questions and make a COPS event? Because that's what you're suggesting was the right way to go for the gaol incident, isn't it? A. Yes, the gaol has a bit of a different process because they send through a fax or an email with the details of what's occurred, so we have some very basic details, so there's no issue with putting on a preliminary COPS event so that we know time, date, place, who the person is that's involved and I like to think that people would do that because there are circumstances where, yes, they don't have all of the information before the end of their shift for a whole heap of different sort of incidents so we need to report something on there. 1. The applicant submits that on the evidence the allegation boils down to allegations of: 1. failing to make a preliminary COPS Event after receiving the telephone call; 2. failing to check his emails in circumstances where the applicant was not expecting an email but a facsimile report; and 3. failing to follow up the Correctional Centre once the report had not been received prior to the end of the shift. 1. The applicant submits that the matters identified in the preceding paragraph and, in what is more broadly relied upon by the respondent do not constitute misconduct. The applicant says that the operating procedures regarding the way that Correctional Centre assaults are actioned were (at the time) unwritten; the training was almost non-existent but was ad hoc and by the odd email over time; and the requirement to check emails and the frequency of checking them is unwritten and not the subject of any particular identifiable mandatory or strict practice. The respondent's submissions regarding Allegations 3 and 4 1. The respondent notes that the applicant repeatedly insisted that he could not be criticised for his failure to attend the Goulburn Correctional Centre because he did not receive the fax. However, the respondent submits that the fact that he did not receive a fax did not absolve him of the responsibility to deal with the matter. It was the applicant's responsibility to follow up the matter to determine whether there had been a substantial assault and what steps were required. As Sergeant Morgan and Chief Inspector Sheehan explained, it was the applicant's responsibility to determine the nature of the assault and what steps were required, including whether the yard should be locked down to secure the crime scene, whether witnesses should be interviewed, CCTV obtained and so on. 2. The respondent says that the applicant's insistence that he was entitled to do nothing unless and until he received a fax is symptomatic of his failures to abide by procedures and accept responsibility. In the same category is the applicant's claim that, having checked his emails when he started his shift, he could not be criticised for not checking his emails again. The respondent points to Chief Inspector Sheehan's evidence that officers at the Hume LAC receive many unexpected emails dealing with various issues and it is unacceptable that an officer would not check his email before the end of a shift. 3. In respect of Allegation 4, the respondent says that if the matter had been left to the applicant, an assault which left an inmate in hospital would not have been investigated nor would any charges have been laid. 4. Chief Inspector Sheehan gave evidence that the policy of proactive investigation of assaults at the Goulburn Correctional Centre was adopted as a means of dealing with previous instances of very serious violence at the centre. The Chief Inspector explained that there was a time where there were two or three murders each year at Goulburn Correctional Centre. In response, the Police adopted a policy of proactive investigation which has dramatically reduced the incidents of violence at Goulburn Correctional Centre. The respondent submits that these incidents demonstrate the significance of the matters at stake and emphasise the seriousness of the need to ensure compliance with policy. The respondent submits that the requirement that incidents at the Goulburn Correctional Centre be investigated was not a mindless bureaucratic rule; it is a matter of life and death. Consideration and Conclusion 1. The applicant relies on the fact that he was not told the full extent of the alleged victim's injuries and that he was expecting a facsimile not an email as the reasons he did not take any action on 30 August 2015. The applicant says on that basis he acted in accordance with usual practice. 2. The applicant criticises the respondent for not obtaining the transcript of the telephone discussion with the officer at Goulburn Correctional Centre on 30 August 2015 and points to Sergeant Morgan's evidence that if it was a minor assault then Sergeant Morgan would not have sent a car crew out either. However, the applicant, in his directed interview admitted that the officer at Goulburn Correctional Centre said: We are still not aware of the full extent of his injuries. 1. The applicant did not know it was a minor assault; an obvious inference to be drawn from the comment above is that the full extent of the injuries was very serious. 2. I accept the evidence of Sergeant Morgan and Chief Inspector Sheehan that it was the applicant's responsibility to determine the nature of the assault and what steps were required, including whether the yard should be locked down to secure the crime scene, whether witnesses should be interviewed, CCTV obtained and so on, and not sit on his hands and wait for a fax. 3. I also accept the evidence of Chief Inspector Sheehan that officers at the Hume LAC receive many unexpected emails dealing with various issues and it is unacceptable that an officer would not check his emails before the end of a shift. 4. I find that Allegation 3 that the applicant failed to attend at Goulburn Correctional Centre in a timely manner is made out on the balance of probabilities on the Briginshaw standard. 5. I also accept the evidence of Chief Inspector Sheehan in relation to the policy of proactive investigation of assaults at the Goulburn Correctional Centre. I agree that it is a reasonable to conclude that if the matter had been left to the applicant, an assault which left an inmate in hospital may not have been investigated, and consequently charges may not have been laid. 6. I find that Allegation 4 that the applicant failed to investigate the report of an assault on 30 August 2015 at Goulburn Correctional Centre made out on the balance of probabilities on the Briginshaw standard. 7. I agree with the findings of Superintendent Schilt set out at paragraphs [148] and [150]. Allegation 7 – failed to adequately investigate a domestic violence incident on 11 May 2016 Summary of incident/issue and findings of the delegate in respect of Allegation 7 1. Allegation 7 is that the applicant failed to adequately investigate a domestic violence matter reported by Mr William Power on 11 May 2016. 2. On 9 May 2016, Mr Kyle Greene made a successful application to have his bail conditions varied to reside at the residence of his father, Mr Power, and to report to Goulburn Police Station daily. Mr Power was neither aware nor consented to Mr Greene being bailed to his address. 3. On 11 May 2016, Mr Power attended the Goulburn Police Station to meet with Mr Greene. After reporting for bail Mr Greene became aggressive and made threats to Mr Power when Mr Power refused Mr Greene's request to stay at Mr Power's residence. 4. Later on 11 May 2016, Mr Power returned to the Goulburn Police Station. Mr Power says he did this because he was in fear for his life and was very concerned about the harm that his son might do. The applicant took a statement from Mr Power. 5. The applicant created a COPS Event and applied for a provisional apprehended domestic violence order ("ADVO"). The applicant did not mark the event as "domestic related'', did not create a generic domestic violence narrative, and he did not make any arrangements for service of the provisional ADVO. The ADVO was not served for several weeks, even though Mr Greene had reported to the station consistent with his bail conditions on several occasions. This formed the basis of Allegation 7. 6. Superintendent Schilt found that the allegation that the applicant failed to adequately investigate a domestic violence matter reported by Mr Power on 11 May 2016 ("Allegation 7") to be proven, and concluded that this conduct was contrary to: s 7(e) of the Police Act (strives for citizen and personal satisfaction); cl. 8 of the Police Regulation 2008 (comply strictly with the Police Act and the Police Regulation and comply with lawful orders); the NSW Police Handbook (act honestly, in accordance with the Oath of Office, the Code of Ethics and the Statement of Values); and Points 2 and 3 of the Code of Conduct (act with care and diligence and know and comply with all policies, procedures and guidelines). Submissions by the applicant 1. The applicant says that after he took the statement from Mr Power and became aware of the assault allegations he told Sergeant Godkin that Mr Greene should be arrested and charged with intimidation and, as he was about to complete his shift the nightshift should be tasked accordingly. The COPS Event that he created was verified by Sergeant Godkin and the job was brought to the attention of the incoming shift at shift changeover. 2. The applicant submits that his failure to include the additional allegations of assault in the narrative on the COPS system (in addition to them being already contained in the statement) does not constitute misconduct. 3. The applicant also submits that the failure of the applicant to "tick" or select the domestic violence box on the computer does not constitute misconduct. The event was verified by Sergeant Godkin and the omission was also not identified by him, and the applicant submits this is consistent with it being an innocent mistake. 4. The applicant submits that there is evidence which supports a conclusion that there was confusion in the communication about the status of the service of the Provisional ADVO. The applicant submits that is important to take into account that despite the applicant commencing annual leave on 15 May 2015 the order was not served until the applicant served it immediately upon his return from leave on the 30 May 2015. Submissions by the respondent 1. The respondent submits that the applicant does not deny that he failed to create a DV narrative or that he did not mark the event as domestic violence related. He insists however that those failures were unimportant. He does so notwithstanding that: 1. he understood that DV was a focus of Hume LAC; 2. he had repeatedly been reminded of his obligations in dealing with DV matters; 3. he had repeatedly been counselled about his failures in that respect and had been placed on the DV High Risk List; and 4. his failure to categorise properly the matter as being "DV-related" meant that it was not subject to the reviews established to ensure that DV matters were properly handled, which in turn contributed to the failure to promptly serve the ADVO. 1. The applicant ultimately accepted in cross-examination that the categorisation of a matter as DV-related has a series of important consequences designed to ensure that matters do not fall through the cracks. As Chief Inspector Sheehan explained in answer to the proposition that the failure was minor: Q. You'd agree that that, although that wasn't ideal, it's understandable in the circumstances, isn't it? A Well, I'd say "No". For us, obviously, domestic violence matters are serious matters and they should - there's a set criteria that follows. If you don't tick that box, it doesn't create, obviously, a checklist that's got to be then followed and risk assessments that have to be completed and then, obviously, depending on the circumstances, who's reading, if somebody else was reading it, they wouldn't realise it's a domestic matter, then they wouldn't see the urgency to follow that up. That's obviously why we have changeovers, but if someone reading that would go and it could just be verified and go into the ether and not realise that there's ongoing matters with it. So, it's fairly serious. 1. The respondent says that the applicant's insistence that his failure to properly categorise DV matters is trivial or unimportant is in itself worrisome, and demonstrative of his unsatisfactory attitude to his duties. 2. The respondent says that as to service of the ADVO, the applicant initially denied fault and said that he went on leave immediately after the incident and criticised his colleagues for not serving the ADVO in his absence. When confronted with records which showed that he did not go on leave but worked two further shifts, he accepted that he had the opportunity to serve the ADVO but nonetheless insisted that his colleagues were also at fault. 3. During cross-examination the applicant's representative repeatedly put to the respondent's witnesses that the applicant's colleagues were at fault for not serving the ADVO while he was on leave. As the witnesses pointed out, however, the fact is that Mr Greene had reported for bail on both shifts when the applicant was working but had then ceased to report. 4. The respondent submits that in any case, and as Superintendent Schilt explained, the applicant was the officer who took the report and the officer in charge. He was therefore obliged to make every effort to serve the ADVO, and if he were taking leave he should have made arrangements to ensure that it was served. As Chief Inspector Sheehan explained, because he was the officer in charge the service task appeared in his "work off', that is the list of tasks he was required to complete. 5. The respondent says that the true position is as follows: 1. the applicant failed to take the basic but important steps which he had repeatedly been instructed to take in respect of DV matters; 2. the applicant did not go on a period of leave but was instead at work for two days after the incident; 3. unlike his colleagues, as officer in charge the service task was on his "work off'; 4. during the period in which he was at work, Mr Greene reported at the station and could readily have been served; 5. Mr Greene ceased to report after the applicant went on leave, which explains why he was not served during the applicant's period of leave; and 6. in any case, the applicant was the officer in charge and responsible to ensure service. 1. The respondent says that as a consequence, the applicant's substantive failures were in themselves serious. The failures were exacerbated by the applicant's responses during the investigation and in these proceedings, in which he denied, minimised and deflected his responsibility. Consideration and Conclusion 1. I agree with the position summarised by the respondent and set out at paragraphs [189] and [190]. 2. I also agree with the respondent's submission that the applicant's insistence that his failure to properly categorise DV matters is trivial or unimportant is in itself worrisome, and demonstrative of his unsatisfactory attitude to his duties. 3. The Police Code of Practice for domestic violence requires that ''police will respond to family and domestic violence incidents reported to them, regardless of who made the report or where, when, why or how it was made". The Code of Practice was specifically drawn to the applicant's attention. He knew that domestic violence was a focus of the Police. He knew that a failure to respond proactively to DV complaints could be disastrous. He nonetheless took no steps to investigate Mr Power's report. 4. I find that Allegation 7 is made out on the balance of probabilities on the Briginshaw standard. 5. I agree with the findings of Superintendent Schilt set out at paragraph [178]. Allegation 10 – failed to investigate Pool Room matter and Allegation 11 - untruthful re Pool Room Incident Summary of incident/issue and findings of the delegate in respect of Allegations 10 and 11 1. On 14 May 2016, Sergeant Morgan was involved in an arrest in relation to an alleged theft which took place on 17 April 2016 at commercial premises called the Pool Room. In attempting to locate further information about the alleged theft, Sergeant Morgan checked the applicant's pigeon hole which was described by Sergeant Morgan in an email to the applicant's supervisor, Acting Sergeant Johansen, as "overflowing with all aspects of work". Consequently, Sergeant Johansen undertook an audit of the applicant's pigeon hole and a number of items were found in the pigeon hole, including an unlabelled USB. It was established that the USB contained CCTV footage of a theft which took place on 17 April 2016 at a commercial premises called the Pool Room. The owner of the Pool Room, Mr Hargrave, had reported the theft and the applicant attended the commercial premises and spoken with Mr Hargrave on 17 April 2016. 2. On 19 April 2016, the applicant created a COPS Event in relation to a report of shoplifting at "The Pool Room" store. The Event Narrative states that the owner had clear CCTV footage of the incident with clear images of the person of interest. 3. Mr Hargrave says that he made a number of attempts to contact the applicant and he was frustrated by the lack of investigation. Mr Hargrave says that he had by his own means identified the offender and a vehicle that was associated with the offender and still the applicant did not contact him. The respondent alleges that applicant created a COPS Event and circulated some CCTV images but otherwise took no action, which is the basis of Allegation 10. 4. On 8 June 2016, the applicant participated in a directed interview with Sergeant Taylor and Sergeant Morgan. 5. During the interview, the applicant said: 1. he had spoken with the owner of the Pool Room while off duty for approximately 45 minutes; 2. he did not create an action in relation to the conversation as he speaks to numerous victims while off duty and informs them of outcomes; and 3. he informed inspector Woods of the conversation with the owner . 1. Sergeant Morgan spoke to Mr Hargrave. Mr Hargrave denied having spoken to the applicant at any time after the initial report despite his several attempts to contact the applicant and said the applicant "really seemed like he wasn't interested''. The applicant's claims that he had spoken to Mr Hargrave which the respondent says are false formed the basis of Allegation 11. Submissions of the applicant 1. The applicant says: 1. Mr Hargrave did not give him a copy of the CCTV footage on 17 April 2016 because there were technical difficulties with the copy he had and the owner said it would cost more than the cost of the stolen item to organise a technician to provide a working copy; 2. he obtained screenshot photos from Mr Hargrave by mobile phone; 3. days later when he was off duty, Mr Hargrave left a USB with the CCTV footage at the Goulburn Police Station; 4. he could not play the CCTV footage from the USB and he called Mr Hargrave and told him this and Mr Hargrave thanked him; 5. two weeks later, while off-duty, he spoke with Mr Hargrave in the street for approximately 45 minutes. During this conversation, the applicant says he updated Mr Hargrave on his progress with the. He did not keep a record of this conversation; 6. on returning to work, he saw a message from Mr Hargrave which he believed was from prior to speaking with Mr Hargrave in the street; and 7. about a week later he spoke with Sergeant Matthew Woods, who was at the time an Acting Inspector, about the investigation and about identifying the suspects from the screen shots. 1. The applicant submits that the evidence relied upon by the respondent to assert that the applicant did not speak to Mr Hargrave in the street while off duty is reliant upon hearsay evidence of Sergeant Morgan which is not contained in any handwritten contemporaneous note, nor is the hearsay evidence in the form of conversation in first person speech. The applicant says that this evidence cannot be tested and there is no evidence of the state of Mr Hargrave's purported absence of memory about the disputed conversation or what matters were brought to Mr Hargrave's attention so as to assist in jogging his memory. The applicant submits that the evidence is grossly inadequate and that it should be given no weight. 2. The applicant says it is unfair to use hearsay evidence in an attempt to discharge the evidentiary burden on the critical issue concerning an allegation of dishonesty. 3. The applicant attacks the credit of Sergeant Morgan and says that Sergeant Morgan was an evasive witness. The applicant says that because Sergeant Morgan admitted that he thought the applicant was a liar, that his investigation and his evidence were overly harsh and adverse to the applicant. 4. The applicant relies on a discussion that the applicant says took place between the applicant and Sergeant Morgan following the directed interview on 8 June 2016, in the presence of the applicant's support person, Sergeant Taylor, as supporting a submission that the applicant's evidence should be preferred over the evidence of Sergeant Morgan and that his evidence regarding his conversation with Mr Hargrave should be given little weight. 5. The applicant submits that failing to update the COPS Event with information about the conversation he had with Mr Hargrave whilst off duty does not constitute misconduct. Submissions of the respondent 1. Detective Sergeant Woods denies the conversation that the applicant says he had with him about identifying the suspects from the screen shots. The respondent says that the Detective Sergeant's evidence was clear about this. 2. The respondent says that Mr Hargrave had no reason to lie and that Police records show no record of the applicant having spoken to Mr Hargrave or otherwise resolved the matter. Consideration and Conclusion 1. I have considered the question of hearsay evidence and the attack on Sergeant Morgan's credit. 2. In cross-examination Sergeant Morgan appeared to be an honest and forthright witness, including in relation to the matter allegedly discussed between the applicant and he following the directed interview. However, in circumstances where: the applicant's version of events is supported by the evidence of Sergeant Taylor; Sergeant Taylor was not cross-examined about his evidence; and when Sergeant Morgan was cross-examined, he said that he and Sergeant Taylor had a good working relationship, I cannot accept Sergeant Morgan's evidence over Sergeant Taylor's and the applicnat's evidence about the matter allegedly discussed following the directed interview. 3. It is relevant that on 14 May 2016, Sergeant Morgan checked the Applicant's pigeon hole and this is not disputed by the applicant. Sergeant Morgan found the pigeon hole to be overflowing with various unactioned items which eventually lead to the discovery of the various matters subject of Allegations 7-11. Sergeant Morgan's evidence is consistent with this discovery and with the fact there is no record of the applicant's alleged conversation with Mr Hargrave in the street. 4. However, in light of my finding about the matter discussed following the directed interview, it would be unfair to use the hearsay evidence of Sergeant Morgan about his conversation with Mr Hargrave to make a finding of dishonesty. 5. I have no reason to disbelieve the evidence of Detective Sergeant Wood, and in circumstances where there is no physical evidence of the conversation, such as a note in his notebook of the conversation, I accept that the applicant did not have a conversation with Detective Sergeant Wood about the identification of the suspects. 6. In these circumstances, while it is very much in the balance, I am unable to find, on the Briginshaw standard, that Allegations 10 and 11 that the Applicant failed to investigate the theft at the Pool Room and then falsely claimed that he had spoken to the victim are made out. No misconduct therefore arises in respect of Allegations 10 and 11. Gravity of misconduct 1. In Allison v Commissioner of Police [2018] NSW IRComm 1005, Commissioner Seymour considered the proper approach for the Commission to take in assessing allegations of misconduct against police officers as follows: [150] It was submitted … that the proper approach for the Commission to take is to consider each incident or matter not in isolation, but as part of a pattern of conduct that caused the Commissioner of Police to lose trust and confidence in Mr Allison as a police officer. I agree. In determining whether a police officer has justifiably lost the trust and confidence of the Commissioner of Police, any other approach would be contrary to common sense. An employment relationship should be viewed in a holistic manner, not artificially dissected into separate incidents examined in isolation from each other and the overall context in which they occur. 1. In considering the Disciplinary Order I have taken into account the accumulation and nature of the proven allegations, the conduct history, as well as what I have identified below, as the applicant's lack of insight. I consider the applicant's misconduct, considered as a whole, to be serious. 2. There were aspects of the applicant's evidence in these proceedings that displayed a concerning lack of insight and acceptance that his conduct failed to meet the standards of conduct reasonably expected of him by the Commissioner of Police, in particular the applicant's refusal to accept that his failings around the DV-related incidents had potentially serious consequences, and were misconduct. It is also relevant that the applicant responded to the proposed Disciplinary Order by claiming that he is the victim of "blatant targeting and harassment". 3. These are relevant matters evidencing that the applicant cannot consistently be relied upon to comply with the legislation, NSW Police policies, procedures and the Code of Conduct. 4. In addition to the matters summarised above, the evidence raises concerns both as to the applicant's frankness and honesty. The applicant's accounts in various areas are contradicted by direct evidence from other witnesses and by objective evidence. 5. I have found dishonest conduct on the part of the applicant in respect of Allegations 1 and 2. These are relevant matters that bear upon his integrity and fitness to serve as a police officer. Beyond power 1. It is submitted that the Order made under s 173(2) is beyond power or unjust to the extent that it is grounded in allegations of misconduct in respect of which the applicant is not guilty or to the extent it is grounded in factual allegations that do not themselves constitute "misconduct". On the basis of my findings, this submission must fail. Harsh, unreasonable or unjust 1. The Applicant has a substantial history of poor performance and misconduct. In summary, the applicant: 1. drove a vehicle while his license was suspended; 2. after being involved in an accident, failed to properly deal with the other driver; 3. in connection with a claim for compensation in respect of mistreatment by management, falsely claimed that he had never been the subject of a Conduct Management Plan; 4. compounded the dishonesty by later insisting that he did not consciously lie about the matter; 5. failed to secure his appointments, even after being warned about it; 6. REDACTED; 7. REDACTED; 8. failed to promptly attend and investigate a serious assault at Goulburn gaol; 9. failed to take statements from witnesses and failed to subpoena a critical witness, leading to the failure of the prosecution for the assault and an award of costs; 10. failed to properly handle and investigate a series of domestic violence incidents, despite the need for pro-active policing of domestic violence matters; and 11. neglected his duty in various respects, including by failing to act on reports. 1. In those circumstances, the Order was not unreasonable nor unjust. 2. The applicant contends that the Disciplinary Order is harsh because he will suffer a reduction in pay which will prevent him from meeting the mortgage repayments on his property, and that he will need to relocate to the Wollongong region. 3. The allegation of harshness is not accepted, including for the following reasons submitted by the respondent. 4. First, the NSW Police Force is a disciplined force. A person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the NSW Police Force. As Justice Brennan said in Police Service Board v Morris and Martin (1985) 156 CLR 397 at: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. 1. Second, the applicant's misconduct, viewed objectively, is serious. A substantial sanction is not only warranted but required. The sanction is, in the circumstances, not only proportionate to the conduct but at the lower end of the scale. 2. Third, the applicant's lack of judgment and insight, as well as his misconduct, has shown that he should not have the responsibility and duties of the rank of Senior Constable and the relative autonomy that comes with that rank when compared with the rank of Constable. The demotion would, on those grounds alone, be justified. 3. Fourth, the Disciplinary Order will ensure that the applicant is the subject of the appropriate degree of supervision. In that sense the Disciplinary Order is in the public interest. The public interest is a mandatory consideration in matters of this kind. 4. Fifth, although the consequences of relocation are a matter entitled to weight, relocation is a fact of life for police officers, who are routinely relocated for operational reasons unrelated to any misconduct. As the Commission has previously observed in Probst at 415: Moreover, like all police officers, the applicant joined the Force on the understanding he could. be transferred to any location, at any time, for operational reasons. It is a reality of policing life. The fact that he secured appointment to his home town was very fortunate, but he knew this could not be guaranteed indefinitely. 1. Sixth, it is effectively common ground on the evidence that there has been a breakdown in the relationship and a loss of trust between the applicant and the senior management of the Hume LAC. Each of the applicant, Superintendent Schilt and Sergeant Marsh has given that evidence. 2. I have taken into consideration the character references provided by the applicant in my overall assessment. It is unclear whether the colleagues who provided these references are fully appraised of the applicant's disciplinary history and the references do not outweigh the concerns about the applicant's misconduct, considered as a whole and in context, as discussed in these reasons. 3. The applicant has not discharged his onus of demonstrating that the Disciplinary Order is harsh, unjust or unreasonable. CONCLUSIONS AND FINDINGS 1. The Commission finds that: 1. On the balance of probabilities, on the Briginshaw standard, Allegations 1, 2, 3, 4, and 7 are sustained; 2. On the balance of probabilities, on the Briginshaw standard, Allegations 10 and 11 are not sustained; 3. The applicant's conduct admitted in respect of Allegations 5, 6, 8 and 9 and sustained in respect of Allegations 1, 2, 3, 4, and 7 was conduct which breached: s 7 of the Police Act, cl 8 of the Police Regulations; the New South Wales Police's Code of Conduct and Ethics and the New South Wales Police's Standards of Professional Conduct, and was misconduct; 4. There were no issues of procedural unfairness of such significance as to outweigh the seriousness of the applicant's misconduct taking into consideration the public interest and the applicant's interests in this matter; and 5. The Disciplinary Order, was not beyond power and was not harsh, unreasonable nor unjust within the meaning of section 174 of the Police Act. ORDERS 1. This application for review under s 174 of the Police Act is dismissed, pursuant to s 177(1)(d) of the Police Act. N J CONSTANT Commissioner ********** Amendments 29 May 2019 - CaseLaw Formatting Adjusted 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: 29 May 2019