Industrial Relations Commission New South Wales Medium Neutral Citation: Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033 Hearing dates: 25, 26, 27, 28 and 29 March 2019 Date of orders: 31 May 2019 Decision date: 31 May 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. The order made by the Commissioner of Police on 8 October 2018 under s 173(2)(a) of the Police Act 1990 (NSW) reducing Sergeant Shelley Jackson from her current rank to that of Senior Constable Level 6 is revoked. 2. Pursuant to s 177(1) (b) of the Police Act 1990 (NSW) I order that Sergeant Shelley Jackson be reduced in rank from Sergeant to Senior Constable Level 6 for a period of two years, commencing from the date of this decision, and thereafter be restored to the rank she held immediately prior to this decision. Catchwords: POLICE – reduction in rank – principles to apply on review – consideration of allegations of misconduct – not all allegations sustained – consideration of applicant's attitude and demeanour – lack of contrition and remorse – order harsh – order revoked and alternative order made PRACTICE AND PROCEDURE – principles of procedural fairness in application under s 173 of Police Act 1990 (NSW) – application of rule in Browne v Dunn Legislation Cited: Civil Procedure Act 2005 (NSW) s 56(1) Industrial Arbitration Act 1940 (NSW) s 83 Industrial Relations Act 1996 (NSW) Ch 2, Pt 6, ss 163, 164A Police Act 1990 (NSW) ss 31, 173, Pt 9 Div 1A (ss 174, 175, 177, 178, 179), ss 181D, 181F, Sch 1 Police Regulation 2015 (NSW) cl 51 Public Interest Disclosures Act 1994 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 35.6 Cases Cited: Allison v Commissioner of Police [2018] NSWIRComm 1005 Beck v Commissioner of Police (No 3) (2015) 254 IR 186; [2015] NSWIRComm 1023 Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 Browne v Dunn (1894) 6 R(HL) 67 Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No. IHOOAAQS v Cross (2012) 293 ALR 412 Commissioner of Police v Skelly [2010] NSWIRComm 18 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 Laird v Commissioner of Police [2001] NSWIRComm 253 Mahoney v Commissioner of Police [2003] NSWIRComm 67 McDiarmid v Commissioner of Police [2012] NSWIRComm 100 Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60 Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police (2009) 183 IR 176; [2009] NSWIRComm 51 Probst v Commissioner of Police (No 2) [2009] NSWIRComm 201 Robert Whyte v Commissioner of Police [2010] NSWIRComm 84 Saliba v Commissioner of Police [2006] NSWIRComm 200 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97 Wells v Commissioner of Police (2000) 100 IR 106; [2000] NSWIRComm 157 Xiu Zhen Huang v Rheem Australia Pty Ltd [2005] AIRC 108 Category: Principal judgment Parties: Shelley Jackson (Applicant) Commissioner of Police (Respondent) Representation: Counsel: M Tedeschi AM QC (Applicant) J Darams (Respondent) Solicitors: Cardillo Gray Partners (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2018/322971 Publication restriction: There is to be no disclosure of the name or any other material that identifies, or may lead to the identification of, any of the people in the list attached to the email from Maddocks Lawyers to the Office of the Industrial Registrar dated 11 April 2019. Judgment 1. Sergeant Shelley Jackson ("Sgt Jackson") is a member of the NSW Police Force. On 8 October 2018 the Commissioner of Police ("the respondent"), through his delegate, made an order under s 173(2)(a) of the Police Act 1990 (NSW) reducing Sgt Jackson from her current rank to that of Senior Constable Level 6 ("Order"). On 22 October 2018 Sgt Jackson made an application for a review of the Order pursuant to s 174 of the Police Act ("Application"). 2. By virtue of s 173(8)(b) of the Police Act the Order does not take effect until the Application is finally determined. The proceedings 1. The hearing took place from 25 to 29 March 2019. Sergeant Jackson was represented by Mr M Tedeschi AM QC of counsel. The respondent was represented by Mr J Darams of counsel. Non-publication order 1. Evidence was adduced from, or made reference to, past and present members of NSW Police and various members of the public. At the conclusion of the hearing I had the following exchange with counsel: [1] "COMMISSIONER: Thank you. That was all I wanted to say about that, just give you a chance to respond. But there's one other question, a small one, perhaps, Mr Tedeschi, you will have some views about this, but throughout the evidence members of the public, victims, offenders are named personally. In the context of a judgment, which I am about to start writing, do the parties have any submissions they wish to make about naming those individuals. DARAMS: If you could avoid naming them then we would be content with that. TEDESCHI: We agree, Commissioner. It would be entirely appropriate for you to use pseudonyms or letters or some other form-- COMMISSIONER: I intend to use initials unless that would create-- DARAMS: We've got a particular concern in relation to the complainants as obviously the complainants have protection under the Act in respect of the disclosure of their names. COMMISSIONER: [Names omitted] DARAMS: No, no, I mean the police officer complainants. COMMISSIONER: I see. DARAMS: [Names omitted] TEDESCHI: I've got no objection to pseudonyms in relation to them. DARAMS: Officer 1, officer 2. COMMISSIONER: Can you tell me to whom I have to attribute pseudonyms, is it just any police complainant? DARAMS: Could we do this, could we propose a list to Sergeant Jackson and they could hand you up a note saying these are the persons who, if you need to refer to them, they can be referred to as pseudonyms? That's probably the easiest way. TEDESCHI: We agree to that. COMMISSIONER: That would assist because then I, if you give me the names of people and even if you want to add a descriptor to those people so that it means something to you when you come to read my decision it will make it that much easier for all concerned, I'd appreciate that." 1. On 11 April 2019 the Office of the Industrial Registrar received an email from Maddocks Lawyers, the solicitors for the respondent. The email, which was stated to be sent with the "consent and knowledge of" the solicitors for Sgt Jackson, and into which they were copied, attached a "list of proposed anonymisations". The list contained fifteen names and a proposed alias for each. 2. To the extent that it is necessary to do so, I will make an order pursuant to s 164A of the Industrial Relations Act to prevent the disclosure of the names of the individuals in the list attached to the email from Maddocks Lawyers. In this judgment I will adopt the aliases ascribed by the parties to each individual. This is demonstrated through the use of pseudonyms "Mr/s M1", "Mr/s M2" and so on. I will also avoid references to other facts that may lead to the identification of certain of the individuals. 3. The list provided by Maddocks Lawyers does not include all members of the public who are mentioned or involved in the various allegations made against Sgt Jackson. These people are either victims or perpetrators of alleged crimes. Despite not being referred to in the list provided to the Registry by the respondent, I consider that it is desirable to maintain their privacy, particularly as they have no interest in and are unlikely even to be aware of these proceedings. Those individuals will be referred to in this judgment by the appropriate gender pre-nominal and the first letter of their surname. I am confident that this will cause no confusion to the parties. Evidence 1. The evidence adduced by Sgt Jackson comprised the following: 1. a statement she had prepared, dated 11 January 2019, which was 117 pages in length, with an additional 221 pages of attachments ("Jackson Statement"); 2. an undated affidavit she had sworn, totalling 31 pages plus a further 71 pages of attachments ("Jackson Affidavit"); 3. "character references" from each of the following: 1. Sergeant Mark Bakunowich; 2. Brendan Bourne, who appears to be employed by NSW Ambulance; 3. Sergeant Jerome Cahill; 4. Kimberley Galvin, the widow of Sergeant Tom Galvin, who had worked with Sergeant Jackson; 5. Sergeant Jason Howe; 6. John Kanne, Station Manager at Oberon Ambulance Station; 7. Senior Constable Cain Maitland; 8. Mark McMahon, a member of the "Oberon SES GLR team"; 9. Sean Moore, a retired Detective Sergeant; 10. Amanda O'Brien of the Oberon Neighbourhood Centre; 11. Philip O'Brien, who appears to be employed by NSW Police but whose rank is not stated; 12. Leading Senior Constable Kerry O'Connor; 13. Kathy Sajowitz, Mayor of Oberon; 14. Sergeant K Schneiders; 15. Christine Symington, Health Service Manager with Western Sydney Local Health District; 16. Sergeant Matthew Watts; and 17. Mr M7; and 1. twelve additional exhibits, which it is not necessary to separately identify at this point. 1. I digress to observe that the Commission has not been assisted by the manner in which the Jackson Statement and Jackson Affidavit were presented. The many attachments to each of the documents were not paginated, much less indexed. In numerous instances a bundle of documents was included as a single attachment, not all of which were identified or even referred to in the relevant statement or affidavit. It proved during the hearing, and more markedly has continued to prove, time-consuming and inefficient to locate all of the documents to which the Commission's particular attention was drawn. 2. This is more than simply a question of compliance with, for example, r 35.6 of the Uniform Civil Procedure Rules 2005 (NSW). It is about ensuring that cases are presented in a way which facilitates "the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW) s 56(1). Representatives for parties should bear in mind that attainment of that goal will always be in their clients' interests. They should prepare and present their clients' cases accordingly. 3. Sergeant Jackson gave some oral evidence in chief. She was cross-examined. 4. The respondent read statements from each of the following witnesses: 1. Vanessa Andersen, a partner with Maddocks Lawyers; 2. Detective Chief Inspector ("DCI") Glenn Cogdell. Exhibited to his statement was a folder containing documents in 18 tabs totalling 216 pages; 3. Senior Constable Glenn McDonald; 4. Detective Superintendent ("DS") Paul McDonald. Exhibited to his statement was a folder containing documents in 3 tabs totalling 362 pages; 5. Inspector Gerard Powell; 6. DCI Andrew Spliet; 7. Mr M1; 8. Mr M2; 9. Mr M11; 10. Mr M12; 11. Mr M13; 12. Former Inspector 1; and 13. Former Sergeant 1. 1. With the exception of Ms Andersen, each of the witnesses called by the respondent was cross-examined. 2. Each party relied on reasonably comprehensive written submissions. 3. I have considered all of the evidence and submissions on which the parties relied, but I will not attempt to summarise all of that material. I will refer only to that evidence or those submissions that I consider necessary to explain the conclusions I have reached. Outline of chronology 1. Sgt Jackson graduated from the NSW Police Academy in Goulburn, New South Wales on 12 May 2000 and was appointed as a Probationary Constable. She was confirmed as a Constable on 12 May 2001. On 12 May 2005 she was promoted to Senior Constable and on 25 May 2012 was promoted to Sergeant. 2. As this career progression shows, Sgt Jackson appears to have had a reasonably successful career with NSW Police. She gave evidence of various citations and commendations she had received during her employment. The character references referred to at [8(3)] above describe her as a diligent and committed police officer. However, as I will explore further below, her career has also been marked by some interpersonal conflict. 3. On 27 May 2012 Sgt Jackson commenced duty as Sergeant and Sector Supervisor of Oberon police station. 4. From and after August 2015 Sgt Jackson's conduct and performance was the subject of investigations into several complaints that had been made against her. These complaints were contained in what are described as "Local Management Incidents" ("LMIs"). In total, there were six LMIs that are relevant to these proceedings. 5. To assist in understanding the chronology of events, I will outline, in summary form only at this stage, the allegations in each of the LMIs, and the process by which each LMI was investigated and ultimately addressed, in the order in which they were presented to Sgt Jackson. More comprehensive details of each of the allegations, Sgt Jackson's response to them and my findings are set out below from [189]. LMI1502466 1. Sgt Jackson was informed of LMI1502466 during a meeting with DCI Spliet on 13 August 2015 at Oberon Police Station. There were a number of allegations against Sgt Jackson contained in the LMI including: 1. a failure to investigate the theft of soft drink from Mawhoods IGA in Oberon, which was reported to Sgt Jackson on 24 August 2014; 2. a failure to investigate a report of alleged fraud at the Royal Hotel in Oberon made to Sgt Jackson in July 2014; 3. the improper storage overnight at Oberon of drug exhibits that had been seized at the Oberon Correctional Centre on 21 September 2014, and the delay in entering the evidence onto the NSW Police Exhibits Forensic Information and Miscellaneous Property System ("EFIMS"); 4. the failure or delay to enter onto EFIMS evidence seized by Sgt Jackson on 18 August 2014 from a vehicle which she had stopped; and 5. the failure or delay to enter onto EFIMS evidence in the form of cigarette butts seized by Sgt Jackson on 11 November 2014 when she attended Jenolan Caves following the discovery of a stolen vehicle. 1. At her request, DCI Spliet provided Sgt Jackson with a Directive Memorandum in relation to LMI1502466 on 19 August 2015. 2. Sgt Jackson did not respond to this Directive Memorandum. She asserted that she had requested and was awaiting further information from DCI Spliet, while he deposed that she had sufficient information to respond. 3. DCI Spliet stated that in the absence of a response from Sgt Jackson he "completed a Resolution Outcome Report into the matter and submitted it to Superintendent Robinson". [2] The document does not appear to be in evidence before me. 4. Despite DCI Spliet having completed a Resolution Outcome Report, the LMI does not appear to have been accepted by the respondent as resolved. In early August 2016 Insp Powell was requested by Supt Robinson to finalise this and other LMIs (which are referred to below) that were then outstanding. 5. On 29 September 2016 Insp Powell served Sgt Jackson with a Directive Memorandum in relation to the first issue raised in the LMI (the theft from Mawhoods IGA). He gave evidence that Sgt Jackson requested that she be able to respond to the Directive Memorandum first issued by DCI Spliet, to which he agreed. 6. Sgt Jackson provided her response to the allegations on 1 December 2016. 7. Insp Powell ultimately found most of the allegations to be sustained. The evidence suggests that Insp Powell completed a Resolution Outcome Report on 23 December 2016, although the document does not appear to be in evidence. LMI1503243, LMI1503415 and LMI 1503417 1. Sgt Jackson was informed of LMI1503243, LMI1503415 and LMI1503417 during a meeting with DCI Spliet on 9 November 2015. 2. LMI1503243 relates to posts which Sgt Jackson made on her personal Facebook account in which she referred to her Duty Officer as an "arsehole". That officer was identified during the hearing, but not in the posts, as DCI Cogdell. 3. LMI1503415 arose out of a domestic violence incident which Sgt Jackson had attended on 22 August 2015. The incident involved an allegation that a person had assaulted and injured his grandmother. Sgt Jackson did not charge the individual with a domestic violence offence. 4. LMI1503417 involved a number of allegations against Sgt Jackson arising from the following: 1. the arrest on 15 August 2015 of an individual, Mr M5, for breach of an apprehended violence order ("AVO") and malicious damage. At the time, Mr M5 was on bail for similar offences and Sgt Jackson did not charge him with breaching bail; 2. allegations by another member of the public, Mrs M3, that on 11 November 2015 she had attended Oberon Police Station to enquire about an AVO but Sgt Jackson "brushed her off"; and 3. an incident in which Sgt Jackson did not arrest an individual, Mr M4, who was wanted on an outstanding warrant, when on 21 August 2015 he handed himself into Oberon Police Station. 1. There is a difference between the parties as to the process by which these LMIs were investigated by DCI Spliet. 2. Sgt Jackson gave evidence that she only briefly discussed the three LMIs with DCI Spliet on 9 November 2015. She said that during the meeting she "broke down" into tears to the point of being unable to talk, and had to call the meeting short. 3. DCI Spliet disputed Sgt Jackson's version of the meeting of 9 November 2015. He stated that the meeting lasted for between 60 and 90 minutes, during which Sgt Jackson had willingly sought to respond to the allegations against her. He denied that Sgt Jackson broke down in the manner she described, although he accepted that she had become emotional towards the end of the meeting. 4. DCI Spliet stated that at the conclusion of the meeting on 9 November 2015 he had sufficient evidence to form a view regarding LMI1503243 and LMI1503415 and was able therefore to complete the necessary Resolution Outcome Reports. He did this on 10 November 2015, in each case finding the allegations to be sustained 5. Sgt Jackson deposed that the LMIs were the subject of a further meeting with DCI Spliet on 11 November 2015, during which she was accompanied by her union representative from the Police Association of New South Wales ("Police Association"), Senior Constable Sue Rose. She claimed that during the meeting she raised issues in relation to her mental health, and not having access to the necessary records to respond to the allegations. She stated that "under duress" she "engaged in a very limited discussion" with DCI Spliet about the allegations. [3] 6. DCI Spliet stated that the meeting on 11 November 2015 was confined to discussing LMI1503417. He gave evidence that he not only recognised Sgt Jackson's medical condition, but suggested that she seek advice as to whether she was fit to proceed. He said that Sgt Jackson, who had Snr Const Rose with her as a support person, took some advice and confirmed that she was ready to proceed. He denies that he placed Sgt Jackson under duress. 7. Snr Const Rose was not called to give evidence. 8. Sgt Jackson gave evidence that DCI Spliet sought to speak to her further about these LMIs on 23 November 2015, despite her having told him that she did not believe that she was "in a fit enough state of mind to be able to respond to the complaints" [4] and that she had arranged a medical appointment for 25 November 2015. In the event, it appears that there was no substantive discussion regarding any LMI on this date. 9. The differences between Sgt Jackson and DCI Spliet regarding the meetings on 9, 11 and 23 November 2015 are relevant primarily to the submissions made on behalf of Sgt Jackson concerning the fairness, or otherwise, of the process culminating in the Order. I return to this at [114] and following below. 10. DCI Spliet deposed that he completed the investigation with the information and responses provided to him by Sgt Jackson. It is not clear when this occurred. It can be inferred from the letter referred to at [45] below that he found the majority of allegations against Sgt Jackson to be sustained. 11. Despite the Resolution Outcome Report that had been completed by DCI Spliet in relation to LMI1503243 on 10 November 2015, Insp Powell deposed that this was one of the matters that he was asked Superintendent Robinson to "finalise". [5] He served Sgt Jackson with a Directive Memorandum in relation to the LMI on 24 August 2016, to which she responded on 8 September 2016. 12. On 4 November 2016 Insp Powell completed a Resolution Outcome Report in respect of LMI1503243, in which he found the allegations against Sgt Jackson to be sustained. 13. In a meeting with DCI Cogdell and Insp Powell on 24 November 2016, Sgt Jackson was informed that the majority of allegations in LMI1503415 and LMI1503417 were sustained. That outcome was confirmed in a letter to Sgt Jackson dated the same day, which Sgt Jackson received on 5 December 2016. The letter contained the following: "As you are aware Inspector Powell is currently progressing a number of other complaint matters on behalf of the command. LMI1502466, LMI1503243, LMI1504544 and LMI1600639 relate. When the investigations are completed these matters will be reviewed." LMI1504544 1. LMI1504544 arose out of the report of the alleged theft of a guitar, which was made by Mr M1 to Sgt Jackson on 5 March 2013. The complaint giving rise to the LMI was made by Former Sergeant 1 on 20 November 2015. The complaint alleged that Sgt Jackson had failed to investigate the alleged theft, and had failed to maintain records. 2. DCI Spliet sent an email to Sgt Jackson on 2 December 2015 informing her of the new complaint and proposing a meeting to discuss it. It transpired that Sgt Jackson was unable to meet at the time proposed. DCI Spliet transferred out of the sector in December 2015 and did not finalise the investigation. 3. Insp Powell took over the investigation into the LMI in early August 2016. This was one of the LMIs he had been requested by Supt Robinson to finalise. On 16 August 2016 Insp Powell issued Sgt Jackson with a Directive Memorandum. 4. Sgt Jackson responded to the Directive Memorandum on 17 August 2016. 5. Insp Powell completed the Resolution Outcome Report on 5 November 2016. He sustained the allegations of a failure by Sgt Jackson to investigate and to maintain records. LMI1600639 1. LMI1600639 related to an alleged failure by Sgt Jackson to investigate an alleged eBay fraud that was reported to her by Mr M2 on 8 May 2013. 2. This was another of the LMIs that Insp Powell had been requested by Supt Robinson to finalise. 3. In his statement, Insp Powell deposed as follows: "15. When I received the LMI matters, I was informed that investigations had been conducted and the next step to progress the matters, now that Sergeant Jackson's medical certificate had been changed to allow her to be spoken to, was to provide her with an opportunity to respond to the allegations. l was not required to speak to any of the complainants or involved parties as this had already been done by Inspector Spliet." 1. It is not clear from the evidence what, if any, investigation was undertaken by DCI Spliet. While he deposed that this was one of a number of LMIs into which he had "commenced an investigation", [6] he does not describe any steps that he took in relation to LMI1600639. As Mr M13 gave evidence that the LMI was initiated by a complaint he made on 4 February 2016, after DCI Spliet had left the sector, it seems more likely that no previous investigation had been undertaken. 2. Be that as it may, on 13 September 2016 Insp Powell issued Sgt Jackson with a Directive Memorandum in relation to LMI1600639. Sgt Jackson responded on 29 September 2016. 3. On 15 November 2016 Insp Powell completed the Resolution Outcome Report into the LMI. He sustained the allegation of a failure by Sgt Jackson to investigate the alleged fraud. Remedial and disciplinary action 1. At some point the decision appears to have been taken to resolve the LMIs – that is, decide on any remedial action to be taken – collectively rather than on an individual LMI basis. This can be seen in the letter of 24 November 2016 referred to at [45] above. It is also evidenced in minutes of the respondent's Complaints Management Team, which were tendered into evidence. Each of them contained an entry dated 8 February 2018 which included the following: "This LMI action is combined with all other current LMIs, to be dealt with as a whole." 1. On 10 February 2017 DCI Cogdell, then Acting Superintendent, completed a Resolution Outcome Report in respect of all of the LMIs. In that Report, DCI Cogdell outlined the categories, but not the specifics, of the allegations against Sgt Jackson which had been sustained, and informed her of his decision that non-reviewable action would be taken, namely: 1. Region Commanders Warning Notice; 2. non-reviewable transfer; and 3. a conduct management plan. 1. On 5 May 2017 Insp Powell wrote to Sgt Jackson. His letter stated as follows: "This is to formally advise you of the outcomes of outstanding complaint matters in which you are the subject officer. It confirms our conversation at Lithgow Police station on 5 April 2017 when you were informed of these outcomes. LMI 1502466 Issue 1 That on 24 August 2014 you took a report of a stealing at Mawhoods IGA and you failed to investigate the matter appropriately - SUSTAINED Issue 2 That you inappropriately delayed the completion of a COPS event in relation to a motor vehicle collision on the Abercrombie Road at Norway - NOT SUSTAINED Issue 3 That in July 2014 you were contacted regarding a fraud matter at the Royal Hotel but failed to attend and take a report of the fraud - NOT SUSTAINED Issue 4 That on 21 September 2014 you collected a number of drug exhibits from the Oberon Correctional Centre. Two of the items were not recorded in EFIMS, no COPS record was made and they were stored at Oberon Police station - SUSTAINED Issue 5 That on 11 November 2014 you seized two cigarette butts from a stolen vehicle and failed to record the items on EFIMS. Further on 18 August 2014 you stopped a vehicle and seized a knife, a pill bottle and a toy gun but again did not record these items in EFIMS - SUSTAINED Issue 6 That you failed to update and address your cases as required - NOT SUSTAINED LMI 1503243 Issue 1 That around the 25th/26th of July 2015 you posted a number of posts on Facebook relating to a change of shift and in those posts you made a number of offensive and derogatory remarks about a senior officer - SUSTAINED LMI 1504544 Issue 1 That on 5 March 2013 you attended [a location] and took a report of a stolen guitar but failed to create a COPS event - SUSTAINED Issue 2 Following this report you failed to properly investigate the stealing of the guitar - SUSTAINED LMI 1600639 That on 8 November 2013 you took a report of an apparent Ebay fraud and failed to adequately and appropriately investigate the matter - SUSTAINED" (Emphasis in original) 1. The acronym "COPS" which appears in the above extract is a reference to the NSW Police Computerised Operating Policing System. 2. At some stage after Sgt Jackson received the Resolution Outcome Report of 10 February 2017 the matter was referred to the respondent's Internal Review Panel. DS McDonald and DCI Cogdell both testified that once a decision is made to impose on an employee a non-disciplinary transfer the Internal Review Panel must be notified. DS McDonald explained that the Panel is chaired by the Commander, Professional Standards Command and is made up of other Assistant Commissioners. He stated that those officers were not engaged in the same command as him. 3. On 13 September 2017 the Internal Review Panel recommended that, in addition to the non-reviewable action contained in the Resolution Outcome Report of 10 February 2017, Sgt Jackson be reduced in rank to Senior Constable Level 6. 4. On 16 January 2018 DS McDonald issued Sgt Jackson with a Notice pursuant to s 173(5) of the Police Act ("Notice"). In the Notice, DS McDonald summarised the evidence that had been collated in respect of each of the LMIs and set out his reasons for finding that there were reasonable grounds to conclude that the allegations against Sgt Jackson could be sustained. He gave Sgt Jackson notice that he proposed to make an order under s 173(2) of the Police Act to reduce her in rank to Senior Constable Level 6. The Notice informed Sgt Jackson that she could make written submissions in relation to that proposed action. 5. On 8 May 2018 Sgt Jackson provided her response to the Notice ("Response"). The Response was 183 pages in length and attached 21 documents comprising a further 126 pages. 6. On 8 October 2018 DS McDonald made the Order, demoting Sgt Jackson from the rank of Sergeant to that of Senior Constable Level 6. 7. The non-reviewable action foreshadowed in the Resolution Outcome Report referred to at [58] above was also taken. This included Sgt Jackson receiving a Region Commanders Warning Notice on 8 October 2018. Sgt Jackson's medical condition 1. As part of the factual matrix in this matter, it is necessary to mention issues concerning Sgt Jackson's health that arose during the course of the investigation into the LMIs. 2. On 29 August 2015 Sgt Jackson suffered a breakdown at work. She was subsequently diagnosed as having an adjustment disorder with mixed anxiety and depression. In a report dated 25 November 2015 Dr John Lam-Po-Tang, a consultant psychiatrist, confirmed this diagnosis which in his opinion "predominantly arose due to the heavy workload at Oberon". [7] 3. Sgt Jackson was absent from work for a period of time from 25 September 2015, for which she received workers compensation. She returned to work under some restrictions. 4. In particular, Sgt Jackson's medical condition had implications for the investigations into the LMIs. For instance, in a "WorkCover NSW – certificate of capacity" signed by Dr Suba Achuthan on 27 November 2015 it was stated that Sgt Jackson was "not to be interviewed until she is mentally capable of doing it". [8] Subsequent medical advice in July 2016 cleared Sgt Jackson for interview, but only at the rate of one matter per week. 5. In the Jackson Statement, Sgt Jackson stated as follows: "404 On 18 March 2016, a case conference took place at my doctor's surgery. In attendance was Doctor Achuthan, Commander Robinson, Ms Smith, EML representative Ms Leavers, myself and via telephone my treating psychologist Mr Wilson. Toe meeting went for about an hour. I audio recorded the meeting, with everyone's knowledge. 405 During this case conference Psychologist Daren Wilson raised the problem that had occurred with my treatment by the issuing of further complaints which had hampered my progress. Commander Robinson replied saying, 'All the matters are currently suspended at the moment so they've been put to one side.' He then said to me, 'l can't finalise those complaint matters without providing you with the opportunity to respond to them either, because that's just due process in fairness.'" (Emphasis in original) 1. When Sgt Jackson was certified fit to return to work she did not return to Oberon Police Station. She was stationed at Bathurst Police Station from 26 October 2015 where she remained until 6 February 2017, when she commenced working at Lithgow Police Station. She has not returned to work at Oberon Police Station. Legal principles applicable on review 1. Section 173 of the Police Act gives the Commissioner of Police power to take action in response to a police officer's misconduct or unsatisfactory performance. It relevantly provides as follows: 173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (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. … (5) Before making an order for reviewable action, the Commissioner: (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c) must take into consideration any written submissions received from the police officer: (i) during the period of 7 days referred to in paragraph (b), or (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7) The written notice must contain the terms of the order and must indicate: (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b) whether the order results from a misconduct matter that has been investigated, or is being investigated, under Part 8A or the Law Enforcement Conduct Commission Act 2016, and (c) the Commissioner's reasons for making the order. (8) An order for action referred to in subsection (2) takes effect: (a) in the case of non-reviewable action, when the order is made, or (b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. … (12) Despite section 31, the Commissioner's functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised. 1. Schedule 1 of the Police Act provides as follows: Schedule 1 Non-reviewable action (Section 173) coaching mentoring training and development increased professional, administrative or educational supervision counselling reprimand warning retraining personal development performance enhancement agreements non-disciplinary transfer change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review) restricted duties recording of adverse findings 1. It was not in dispute in these proceedings that the reduction in Sgt Jackson's rank pursuant to s 173(2)(a) is "reviewable action" within the meaning of s 173(1). 2. The Order was made by DS Paul McDonald. There is no suggestion that he was not properly delegated the power to do so, within the meaning of ss 31 and 173(12) of the Police Act. 3. The Commission's powers to review the Order are set out in Pt 9 Div 1A of the Police Act, which relevantly contains the following provisions: 174 Review generally (1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust. … (5) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates. 175 Proceedings on a review … (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). … 177 Arbitration where conciliation unsuccessful (1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the application: (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application. (2) 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. … 1. The jurisprudence of the Commission in proceedings such as these has been developed in a number of cases. It is by now well-established that in determining the principles to be applied in cases arising under Pt 9 Div 1A, decisions of the Commission arising under s 181D of the Police Act (concerning the removal of police officers) are of assistance: Laird v Commissioner of Police [2001] NSWIRComm 253 at [50] and [51]; Mahoney v Commissioner of Police [2003] NSWIRComm 67 at [124]; Saliba v Commissioner of Police [2006] NSWIRComm 200 at [90] and [91]; Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police (2009) 183 IR 176; [2009] NSWIRComm 51 at [8]; and, McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [88]. 2. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Beck v Commissioner of Police (No 3) (2015) 254 IR 186; [2015] NSWIRComm 1023 at [24] (Newall). In Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 (on which Newall C in Beck relied) the Full Bench stated at [134]: "[134] … The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted." 1. As s 175(2) of the Police Act makes clear, the applicant "at all times" bears the onus of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. In Tredinnick v Commissioner of Police [2016] NSWIRComm 14, the Full Bench stated, in the context of s 181F of the Police Act but in terms apposite to the present proceedings, at [40] and [55]: "[40] Section 181F(2) does not refer, in terms, to a 'burden of proof' or the 'onus of proof' and does not expressly distinguish between a legal and evidentiary burden as we have described those concepts above. However, in our view, it is clear that the legislature was referring, in that subsection, to the legal burden or burden of proof, that is, that the appellant has the burden of proof of establishing that (in this case) his removal from the NSW Police Force was harsh, unreasonable or unjust (although it may follow, as we will discuss, that the appellant also has an evidentiary burden). … … [55] This review of the statutory scheme under Divs 1B and 1C of Pt 9 of the Act, when comparison is drawn with the provisions of Pt 6 of Ch 2 of the IR Act, results in the conclusion (supported by the judgment of the High Court in Eaton (No 3) as discussed below) that the respondent does not bear the onus of proof to establish the applicant was guilty of 'misconduct' (to use the language of the authorities concerning the unfair dismissal jurisdiction). That burden falls to an applicant for review under s 181E although a closer alignment with the provisions of Divs 1B and 1C of the Act would have that conclusion expressed thus: the burden falling upon an applicant is to establish the removal was harsh, unreasonable or unjust. In the case of an applicant contending that a removal was unjust because the applicant did not engage in some or any of the 'misconduct' or infringements to the officer's duties and responsibilities (of the kind referred to under s 181D(1)), the burden falls upon the officer to prove that he is not guilty of misconduct (or 'conduct') in that respect. This may mean the provision of proof there is no basis in fact from the allegations or that the allegations involve a misunderstanding or a misapprehension of the facts." 1. The Commission is to apply the same approach to the phrase "harsh, unreasonable or unjust" as it appears in s 174(1) of the Police Act as is applied in proceedings under Ch 2 Pt 6 of the Industrial Relations Act 1996 (NSW). As stated by Newall C in Beck at [28]: "[28] The obligation to make out that the decision was harsh, unreasonable or unjust is laid squarely on the applicant, as subs 181F(2) makes expressly clear. If the applicant cannot demonstrate that the order to remove was harsh, unreasonable or unjust, the application cannot succeed. I proceed on the basis that the effect to be given to the words 'harsh, unreasonable or unjust', which are disjunctive terms, is the same as the effect to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996, noting of course the other matters bearing on the conduct of proceedings and the exercise of discretion prescribed in the Act. As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104])" 1. Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. In Corrective Services NSW v Danwer [2013] NSWIRComm 61 the Full Bench stated: "[21] … It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'" 1. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." 1. In determining an application under s 174 the Commission may take into account such matters as it considers relevant (s 175(3)) but must have regard to the interests of the applicant and the public interest (which is taken to include the fact that the Commissioner made the order under s 173): s 175(4). 2. In Wells v Commissioner of Police (2000) 100 IR 106; [2000] NSWIRComm 157, Peterson J considered the phrase "have regard to" in these terms, at [33]: "[33] In considering an application of this nature the Commission, as earlier observed, is obliged to apply the provisions of s.181F(3) by having regard to the interests of the applicant and that of the public interest as particularly defined in s 181F(3)(b). The concept of 'have regard to' was referred to by counsel in different terms but to like effect. Counsel referred me to a number of cases as authority for the proposition that the duty in the court to 'have regard to' those matters specified in s181F(3) means to give weight to those factors as fundamental elements in the court's consideration (see Re Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 53 ALJR 552 at 554.7; R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333; Clarke v Howard [1993] FCA 207; (1993) 42 FCR 369 at 386.9 and Edwards v Guidice and ors [1999] FCA 1836; 169 ALR 89 at 91-92. I accept these authorities are apposite in the instant case and I shall consider the directive in s 181F(3) accordingly." 1. On the question of the applicant's interests as opposed to the public interest, in Saliba Sams DP made the following observations at [92]-[94]: "[92] It is to be observed that in respect to the public interest, Grayson DP, in Laird, adopted the conclusions of Walton VP in Van Huisstede v Commissioner of Police (2000) 98 IR 57 and said: 50 As to the public interest, it seems to me that the observations of Walton J, Vice President when dealing with the relevantly similar provisions of s 181F(3) of the Act - that is to say, relevantly similar to s175(4), are apposite here and I would respectfully adopt them. 51 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, his Honour said this: '216. The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interest and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217. However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other.' [93] As to the weight to be accorded to the public interest vis a vis the applicant's interests, I refer to a recent judgment of Walton J, Acting President and Staff J (Schmidt J dissenting) in Commissioner of Police v Evans [2006] NSWIRComm 170. At paras 4-5 the Full Bench said: '[4] The essence of the appellant's submissions - reflected in her Honour's judgment - is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. [5] Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159. Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests.' [94] I would respectfully adopt the conclusions of the majority and apply the same principles to the consideration of the public interest and the applicant's interests in s174 reviews under the Act." 1. The legal principles outlined in the preceding paragraphs are those that I will apply in determining the Application. What is the action the subject of the review? 1. As outlined above, the Commission is empowered by s 174(1) of the Police Act to review "reviewable action", as defined in s 173 of that Act. 2. There is no question that the proposed reduction in Sgt Jackson's rank is reviewable action by virtue of s 173(2)(a) of the Police Act. 3. An issue which arises is whether the Commission is able to review the decision by the respondent to impose a non-reviewable transfer on Sgt Jackson. One of the orders that Sgt Jackson seeks from the Commission is an order that she be reinstated "to her previous post as Sergeant and Sector Supervisor at Oberon". [9] 4. At the hearing Mr Tedeschi submitted as follows: [10] "It was that evidence, but there was also evidence from Inspector Cogdell I think it was, that that transfer would not have occurred but for the complaints. So what we're going to be submitting to you in a few moments is that this is a disciplinary transfer dressed up as a managerial transfer. Because once [her] medical issues were resolved and she was back at work full time, which is some time in August 2016, once that happened there was no medical justification, no workers compensation justification for keeping her away from Oberon. So that it could only be regarded as a disciplinary transfer." 1. He later made the following additional submissions: [11] "We submit that that section 177(1)(b) [of the Police Act] would enable you to make an order directing that Sergeant Jackson be reinstated to the Oberon post and that case that we've referred to concerned a case in which there had been a disciplinary transfer imposed by the Commissioner. If you were to come to the view that the transfer is a disciplinary transfer as opposed to a managerial transfer what we submit is that you then have the power to decide that that was harsh or unfair and that the Commission has the power to order a retransfer back to her station." 1. Sgt Jackson relied on Probst v Commissioner of Police (No 2) [2009] NSWIRComm 201 and Police Association of New South Wales (on behalf of Kim Gilmour) in support of the contention that the Commission is empowered to make a reinstatement order. It must be observed that in those cases the transfer of the police officer formed part of the disciplinary action imposed by the Commissioner under the relevant order. The transfer was not purported to be a "non-disciplinary" one, but rather was expressly reviewable action. 2. The matter of Commissioner of Police v Skelly [2010] NSWIRComm 18 involved an order under s 173(2) imposing "non-reviewable action, being a non-disciplinary transfer". At first instance (Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119) Sams DP had found the transfer to be reviewable action on the basis that he could not see how a transfer which arose from a disciplinary process could be a "non-disciplinary transfer". On appeal, the Full Bench overturned this decision. 3. At the outset, the Full Bench made it clear at [24] that orders under s 173(2) are not limited to orders for reviewable action. From the preamble to s 173(2) any actions – reviewable or non-reviewable – taken under the section must derive from a determination that an officer had engaged in misconduct: at [30]. An assessment of the nature of the action taken by the Commissioner is not to be determined entirely by the label given to that action by the Commissioner: at [56]. 4. On the distinction between reviewable and non-reviewable action, and the meaning of the term "non-disciplinary transfer", the Full Bench stated at [35] – [40]: "[35] The legislature has, in our view, delineated between reviewable and non-reviewable 'actions' based upon the character of the action taken by the Commissioner and, ultimately, in that respect, upon the nature of the disciplinary action to be taken. [36] That dichotomy is discoverable from the face of the legislation, without recourse to extrinsic materials or the history of the legislative provisions to which we will return. It is revealed by the absence of any requirement for actions taken under Schedule 1 to be the subject of the formal notice and hearing processes specified in s 173(5), which are, of course, the preserve of more significant disciplinary events under the Act such as the removal of a police officer under s 181D. This conclusion is also broadly supported by the nature of the orders available under s 173(2) which is reflective of more serious actions commonly associated with disciplinary actions as opposed to actions available under Schedule 1, which, by and large, represent milder forms of corrective or rehabilitative action. Whether an apt description of Schedule 1 action is remedial or managerial, the essential difference between those actions and those taken as reviewable actions is the intention, in the former case, to correct or adjust behaviours, where misconduct has occurred, without any intention to engage in a strictly punitive, disciplinary approach. [37] This analysis offers some explanation as to why the legislature employed the adjective 'non-disciplinary' as a description of an action of transferring a police officer under Schedule 1, although the meaning of those words is accompanied by some ambiguity as the action derives from misconduct by an officer. However, the reference to 'non-disciplinary' in the context of transfers in Schedule 1 is indicative, in our view, of the legislature's intention to situate actions in that Schedule which are essentially remedial or managerial in nature and less severely corrective. [38] This approach also explains the distinction between a Schedule 1 transfer and a transfer effected under s 69 of the Act. [39] A police officer is transferred in the exercise of the Commissioner's powers under s 69 not because the officer has engaged in misconduct. Rather, the officer is transferred in 'the interests of the NSW Police Force' and, in consequence, is afforded the protections referred to under s 69(2). [40] In contrast, an officer may be subject to a transfer under s 173(2) only when the officer has engaged in misconduct. A 'non-disciplinary' transfer simply refers to an action taken because of an officer's misconduct which is remedial in nature and not an act of punishment per se. The use of the words 'non-disciplinary' are intended to emphasise that distinction, particularly given that a transfer may occur in a disciplinary context in order to effect a punishment under s 173(2)(d)." 1. In his submissions reproduced at [91] above Mr Tedeschi referred to evidence given by DCI Cogdell. That evidence was that it was "a fair enough assumption" that the decision to transfer Sgt Jackson was based on his findings in sustaining complaints against her. [12] This does not, of course, preclude the transfer being non-disciplinary. As the Full Bench noted in Skelly, any transfer as described in Sch 1 of the Police Act "derives from misconduct by an officer". 2. Sgt Jackson deposed that at a meeting she had with DCI Cogdell and Acting Insp Bolton on 25 January 2017 the latter said words to the effect: [13] "The HR side of things is more what's driving the decision to move you than the complaints. Your health and wellbeing is the main concern here and the bosses in the Western Region hold the welfare of their police in the highest regard." 1. In relation to this meeting DCI Cogdell stated: [14] "I recall that Acting Inspector Bolton did express concern about Sergeant Jackson's health and wellbeing, and that this was one of the factors being taken into consideration regarding any managerial transfer from Oberon." 1. This meeting was little more than two weeks prior to DCI Cogdell finalising the Resolution Outcome Report of 10 February 2017. 2. In all of the circumstances I consider that the proposed transfer of Sgt Jackson falls within the description offered by the Full Bench in Skelly at [40]. 3. It follows that the proposed transfer of Sgt Jackson from Oberon is a non-disciplinary transfer and as such is non-reviewable action by virtue of s 173 and Sch 1 of the Police Act. 4. As a result, these proceedings are limited to a review of the proposed reduction in Sgt Jackson's rank from Sergeant to Senior Constable. Issues with an overarching bearing on the proceedings 1. A number of matters raised by the parties do not concern specific allegations against Sgt Jackson, but have a bearing generally on the process culminating in the Order or on these proceedings. Rule in Browne v Dunn 1. In his closing submissions, Mr Tedeschi contended that an issue arose in this case concerning the application of Browne v Dunn (1894) 6 R(HL) 67. He provided the Commission with written submissions, and made further oral submissions including the following: [15] "In essence what we submit Commissioner is that although you're not bound by the rules of evidence because of s 163 of the Act, that it is a very basic rule of fairness, that if some evidence is going to be challenged the person giving the evidence should be given the opportunity of responding to that challenge, because they might have some explanation as to why it should be believed or there might be some inroads made to it." And further: [16] "There is a factual contest because there is contradictory evidence, but what we would submit that you would find Commissioner is that in effect she's been denied the opportunity of responding to the challenge orally before you. So that you haven't had an opportunity to consider the credibility of her response and she should have been given that opportunity and I made every effort to put our challenges to the respondent's witnesses, so that they had an opportunity to present orally what their response was. Where there were contradictions that we sought between our version and their version. So we're not suggesting that there isn't a contradiction in some of the evidence. We agree that there is. What we're submitting is that one of the factors that you would take into account is the failure to cross-examine her in coming to the conclusion that you would accept her version." 1. Mr Darams made the following submissions in reply: [17] "In part this is to address the Browne v Dunn submission. I think two points to make about the Browne v Dunn point. One obviously not bound by the rules of evidence. Two, Browne v Dunn's a rule of fairness. Sergeant Jackson knew what was in contest and what was being challenged in these proceedings. The third point is one would think that the rule in Browne v Dunn to the extent that and just on the fact that Sergeant Jackson knew about what was put in contest in the proceedings. … The other point I make about that, given in these proceedings that Sergeant Jackson bears the onus to the extent that one might may or may not have challenged her on any particular evidence. It doesn't mean the Commission has to accept that evidence and that general proposition in any court. Related to that proposition and I'll make some submissions about the answers Sergeant Jackson gave to some of the questions and that that reflects in my submission, reflects on her credit as a witness. You're entitled to take into account if she hasn't been challenged on something that you might think is relevant. You're entitled to take her general approach as a witness into account, whether you accept or not accept it bearing in mind she bears the onus at all stages." 1. The rule in Browne v Dunn in the context of proceedings before the Commission was considered by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60. In an interlocutory judgment which examined the case law regarding Browne v Dunn, his Honour stated as follows at p 61: "In other words, Mr Walton supported his objection by relying on the so-called rule in Browne v Dunn (1894) 6 R(HL) 67, which, shortly stated, is to the effect that it ought to be put to a witness in cross-examination the nature of the case which is proposed to be made against his evidence, unless notice has already clearly been given that his evidence is not accepted." (Emphasis added) He later stated at p 67: "In my view, Tribunals operating under the [Industrial Arbitration Act 1940 (NSW)] should be astute to ensure procedural fairness generally to the parties and not so as to permit a case to turn on the overly strict application of a rule of professional legal practice. The instant case, it seems apparent to me, is a good illustration of this point in that whilst Mr Newall conceded he was 'crystal clear' on the rule in Browne v Dunn, it is clear to me, but only after considering the many authorities concerned, that it would be unfair to visit on the respondent any adverse application of the rule. To me, that is no more than an appropriate application of s 83 of the Act requiring the Commission to be governed in its procedure by 'equity and good conscience'." And further at pp 68-69: "I respectfully agree that it is appropriate in proceedings before industrial tribunals under the Act to apply the rule in Browne v Dunn, but being careful not to apply it in any absolute or inflexible way, and having very much in mind its true nature according to the authorities. Also, it seems to me necessary to qualify any application of the rule by reason of the statutory requirements of s 83 of the Act…" 1. Pastrycooks was cited with approval by the Full Bench in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 at [24]. 2. Section 83 of the Industrial Arbitration Act 1940 (NSW), to which Hungerford J referred, was a predecessor to s 163 of the Industrial Relations Act. His Honour's comments apply equally to s 163: Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97. 3. In this matter s 163 of the Industrial Relations Act does not have effect: s 179(1) of the Police Act. However, s 178 of the Police Act is in relevantly similar terms. 4. I have also had regard to the decision of the Australian Industrial Relations Commission in Xiu Zhen Huang v Rheem Australia Pty Ltd [2005] AIRC 108. In that decision, which, with respect, contains a useful analysis of relevant case law on the issue, the Full Bench stated as follows: "[22] We interpose to observe that the speeches in Browne v Dunn recognised a key issue will be whether the witness had notice of what was to be alleged against them. The archetypal circumstance of unfairness is where adverse matters are (later) alleged without them being put to the witness in cross-examination and where the witness had no notice that those allegations would be made. We also note that Lord Morris suggested that a witness' evidence may be so 'incredible and romancing' that it can properly be attacked in submissions without there having been any cross examination. Gleeson CJ [in R v Birks (1990) 19 NSWLR 677] continued: It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created. ... The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. … … [24] In White Industries (Qld) Pty Ltd v Flower & Hart Goldberg J analysed the requirement that a party or witness be put on notice of a proposed challenge to a witness' evidence, where that challenge is not otherwise apparent to the witness. His Honour noted: It is apparent, from the judgment of Lord Herschell that notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made. This proposition was picked up by Hunt J in his extensive analysis of the rule and the cases which had considered it in Allied Pastoral Holdings Pty Ltd v FCT where he said at 623: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn [1894] 6 R 67. But as Hunt J pointed out (at 630): … The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc ([1997] FCA 370; 1997) 145 ALR 1 at 15. [25] An appeal against his Honour's decision was dismissed although the Full Court of the Federal Court held that it was unnecessary for his Honour to make findings about the purpose of a particular witness. The Full Court held that those findings had no bearing on the result but proceeded to make some comment on the submission that to make such findings involved a procedure that was basically unfair to the witness and involved a breach of the rule in Browne v. Dunn. That submission was rejected. The Full Court noted: 'As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to give an explanation. However, there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16; 44 ALR 607; R Cross, Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991, para 17445.' [26] A particular consequence of this summary of principle by the Full Court is that there may often be little scope for the operation of the rule in Browne v. Dunn in relation to matters clearly placed in issue in statements or affidavits filed and served before a hearing. Whether there is any scope for the application of the rule in such circumstances will depend upon the particular circumstances and the dictates of fairness in the particular case." (Footnotes omitted, emphasis in original) 1. During these proceedings, directions were made which included that the parties file and serve on each other statements containing the evidence of each witness on which they intended to rely. These directions provided Sgt Jackson with the opportunity to reply to the evidence that the Commissioner intended to adduce, which she did in the Jackson Affidavit. 2. Through the statements on which the respondent relied, and the submissions filed and served on his behalf, Sgt Jackson had clearly been given notice that her evidence in various respects was not accepted. I do not consider that a failure by Mr Darams to cross-examine Sgt Jackson on the many factual contests arising from the evidence in any way denied Sgt Jackson procedural fairness. Rather, to use the language of Hungerford J, it would be unfair to visit on the Commissioner any adverse application of the rule in Browne v Dunn. Procedural fairness 1. Sgt Jackson contended that there was a denial of procedural fairness in the process culminating in her receiving the Order, with the effect that the process by which the Order was made was compromised to the extent of rendering the Order beyond power, or harsh, unjust or unreasonable. 2. The submissions filed on behalf of Sgt Jackson state the contention as follows: "31. The present complaints have now been considered and determined on three and four different occasions by four different Senior Officers. Sergeant Jackson has had to undergo the ordeal of the complaints being upheld against her and then subsequently re-considered by superior Officers because of a failure to afford her procedural fairness. This must be almost without precedent. … 36. The Applicant submits that the levelling of the same complaints on the three and four occasions demonstrates a complete failure of procedural fairness to Sergeant Jackson and highlights the existence of mala fides in the hearing of these complaints." 1. These submissions need to be put into the context of the evidence. 2. The only LMIs that were apparently investigated twice were LMI1502466 and LMI1503243. Although DCI Spliet completed a Resolution Outcome Report in respect of each LMI, they were further investigated by Insp Powell. There was no explanation offered for this. 3. The Notice included the allegation that Sgt Jackson had failed to properly investigate the alleged fraud at the Royal Hotel in Oberon, which Insp Powell had found not to be sustained: see [59] above. No explanation was offered as to why Insp Powell's findings in relation to this allegation were not accepted. Whatever may have been the reason, Sgt Jackson was given the (further) opportunity to respond to that allegation. 4. On the one hand, it can be accepted that an employee would not generally wish to have a particular matter be the subject of multiple investigations. On the other, however, Sgt Jackson argued that there were procedural defects in the process adopted by DCI Spliet to investigate LMI1502466 and LMI1503243 (at least). In this instance, the further opportunity to put her case in response to the allegations in those LMIs would seem to afford, rather than deny, her procedural fairness. 5. The investigations into LMI1503415 and LMI1503417 were completed by DCI Spliet. Insp Powell testified that he did not further investigate either matter. DCI Cogdell's letter to Sgt Jackson of 24 November 2016 did not "level" the charges at her a second time, as submitted on her behalf, [18] but confirmed the findings that had been made by DCI Spliet. 6. In relation to LMI1504544, DCI Spliet appears to have done no more than notify Sgt Jackson of its existence. The matter was investigated by Insp Powell, who provided Sgt Jackson with a Directive Memorandum to which she responded. 7. LMI1600639 was investigated by Insp Powell. Again, he provided Sgt Jackson with a Directive Memorandum to which she responded. 8. In addition to her submissions regarding the multiple times the allegations had been "considered", Sgt Jackson submitted that she was denied procedural fairness in several other respects. For instance, she claimed not to have been given an opportunity to respond, properly or at all, to LMI1503243, LMI1503415 and LMI1503417 before DCI Spliet his findings in respect of each. This comes down to what occurred at the meetings on 9, 11 and 23 November 2015. I have noted the difference in the evidence of Sgt Jackson and DCI Spliet in this regard at [33] – [40] above. 9. A related question is whether DCI Spliet did insist, and if so, should have insisted, on a meeting with Sgt Jackson when he knew she was asserting a mental condition that precluded her properly responding to the allegations being put to her. There is also a disagreement between the parties as to whether DCI Spliet had provided Sgt Jackson with sufficient information to respond to the LMIs. 10. Sgt Jackson challenged the decision of DCI Cogdell and Insp Powell to purport on 24 November 2016 to finalise LMI1503415 and LMI1503417, when the complaints had been suspended by Commander Robinson pending Sgt Jackson's return to fitness. Again, there is room for debate as to whether DCI Cogdell and Insp Powell were doing any more than communicating findings that had previously been made by DCI Spliet. 11. Sgt Jackson also alleges procedural unfairness in the failure of the respondent to ensure that the Internal Review Panel received the submissions she had prepared for its consideration. There was some disagreement as to whether Sgt Jackson was entitled to make such submissions. In any event, Mr M13 gave evidence that whatever he received from Sgt Jackson was passed onto the Western Region Professional Standards Manager. 12. In considering whether there has been a denial of procedural fairness, so as to render the Order beyond power, or harsh, unreasonable or unjust, regard must be had to the process undertaken under the Police Act. That process commenced with DS McDonald issuing the Notice, in accordance with s 173 of the Police Act. The Notice set out over 26 pages the various allegations against Sgt Jackson and the facts from which they were drawn. It explained the matters to which DS McDonald was giving consideration and the order that he was proposing to make under s 173(2) of the Police Act. 13. As described at [64] above, the Response provided by Sgt Jackson was detailed and, it would appear, comprehensive in addressing the allegations. 14. The Order included a summary of the matters raised in the Response in respect of each allegation. There is nothing to suggest that DS McDonald did not give proper consideration to the Response when deciding to make the Order. 15. There is also no suggestion that there has been a failure by the respondent to comply with the requirements of ss 173(5)-(7) of the Police Act. 16. Under cross-examination Sgt Jackson gave the following evidence: [19] "Q. I want to ask you this. When you received the notice under the Police Act, the [173(5)] notice, you obviously regarded that as a serious matter? A. Most certainly. Q. You read the notice and from reading the notice understood the allegations that were being made against you? A. I eventually read it, I did. I didn't read it immediately. I was not - it was hard, it was a very, very hard document to read when you've got people who are, you know, effectively - some people who I respect so highly that felt this way about me. It was very hard to read that document. So yes, I did read it eventually. … Q. Back to the question. The question was that when you read it you actually understood what was being alleged against you-- A. Yes. Q. --and the particulars of it? A. Yes, as best I could reading material like that. Q. In the notice obviously there were responses that you had previously given in relation to those events? A. Yes. Q. Those responses you gave were either in writing through the directive memorandum? A. They were only ever in writing, yes, through directive memorandums. Q. You understood you were being given an opportunity to respond to the notice? A. Yes. Q. You took that opportunity obviously, that's right? A. Yes. Q. When you took that opportunity you took your time to write out and explain everything that you wanted to explain in relation to these matters? A. As best I could at the time, yes. Q. And you've had another opportunity now haven't you in these proceedings to again explain your position in relation to these allegations, that's right? A. Yes. Q. And in doing so this time, you're not under any misunderstanding about the nature of the allegations that were made and the factors underpinning it are you? A. No. Q. And in doing that, that is in these proceedings, you responded in your first statement but also your affidavit in reply? A. Yes. Q. Do we take it then you've said in those documents what you want to say about these allegations? A. I'm someone that can talk a lot so I could've written another 100, 200 pages. I'm well aware we need to try and keep this to a minimum. Q. Well-- A. My answer being - sorry, if I could simplify it - my answer being there is a lot more I have to say but I simplified my response, yes. Q. Well if I could put it this way, you accept you've been given an opportunity to explain your position in relation to these - at least in this proceeding and also in answer to the notice under 173 of the Act, you've been given an opportunity to‑‑ A. Yes. Q. --put on what you wanted to? A. Yes. Q. And you've taken that opportunity on several occasions? A. I did, yes." 1. In Robert Whyte v Commissioner of Police [2010] NSWIRComm 84 Sams DP made the following observations: "22 It is now well accepted that the importance of the procedural steps under s 181D(3) and (4) of the Act have the same significance as the procedural steps required to be undertaken by the Commissioner under s 173(5), (6) and (7): See Little v Commissioner of Police (No 2) (2002) 112 IR 212 and Van Huisstede v Commissioner of Police (2000) 98 IR 57. Accordingly, it is relevant that the majority in a recent Full Bench decision in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 ('Reid-Frost'), said this at par [11]: 11 It needs to be steadily borne in mind, however, the particular statutory context in which such observations as to procedural matters have been made by the Commission in considering the application for review under s 181E. These are as follows: (a) The challenge to the removal of a police officer based upon procedural grounds will not be finally resolved by a preliminary adjudication based upon those factors. For example, the Commission is not entitled to hear and determine 'to finality the challenge to the removal based only on the matters referred to in s 181F(1)(a)': Newton (No 2) at 75. Rather, the role of the Commission is to 'conduct a review of the merits of the decision of the Commissioner, to consider the whole of the circumstances of the matter in the way determined by s 181F and apply the statutory criteria in that situation': Newton (No 2) at 79. We agree with the Full Bench in Hosemans (No 2) (at [134]) that the review of a decision to remove under s 181D is to be a 'fresh and independent review'; (b) The determination of an application made under s 181E requires a finding as to whether the removal itself was harsh, unreasonable or unjust not whether a particular procedure may be described as such, even though the adoption of an unfair procedure, as we may have observed, significantly contributed to that ultimate determination (see, for example, Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ); (c) The provisions of Pt 6 of Ch 2 of the Industrial Relations Act (1996) ('IR Act') have application, albeit modified, to reviews under Pt 9 Div 1C of the Act: Hosemans (No 2) at [101]. As was described by the Full Bench in Little (No 2) at [65], s 181G has 'the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Pt 6 of Ch 2 of the Industrial Relations Act in such a manner as to import the provisions of Pt 6 to the review proceedings...'; (d) The review proceeding will, thereby, be undertaken procedurally in a manner consistent with unfair dismissal proceedings ( Hosemans (No 2) at [104]) and adopt the jurisprudence of the Commission with respect to unfair dismissal proceedings ( Little (No 2) at [65]), except where the procedure and principles are expressly excluded by the Act; (e) These considerations need to be married with our earlier observation regarding the significance of procedural failures in review proceedings. First, the procedural issues will be one element of the resolution of the merits of the review, which may take on a greater or lesser significance depending upon the gravity of the failure and its effect on the opportunity for the police officer to receive a fair hearing. This is consistent with the approach in unfair dismissal matters. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 388 ('Antonakopoulos'), the Full Bench imported natural justice requirements (to the extent applicable) in to unfair dismissal matters; (f) In a little quoted passage from the decision of the Full Bench in Bigg (at [45]), it was made clear that questions of procedure including a consideration of the 'statutory mechanism' (then s 181B of the Police Service Act ) would be open for review (in proceedings brought under then s 246 of the Industrial Relations Act 1991) as an 'exemplar of the industrial merit of the decision, as well as the general industrial merits of the decision' of the Commissioner. Similarly, as was stated in Starr v Commissioner of Police [2001] NSWIRComm 226 at 140 ('Starr'), 'each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case'; (g) There may be cases where the assessment of the merits of an application may result in a procedural failure, per se, rendering the removal harsh, unreasonable or unjust but, as we will later discuss, proceedings under Div 1C of Part 9 of the Act have, thus far, resulted in only limited examples of such matters, that is procedural factors alone resulting in a determination that the removal is harsh, unreasonable and unjust. Those cases have revealed very serious procedural failures (see our later discussion of Bigg and Van Huisstede following); (h) A similar position applies in unfair dismissal matters. In Antonakopoulos (at 388), the Full Bench accepted that a finding of unfairness may sometimes result from procedural failures alone, but those cases were of such character as to involve failures of some real gravity such as where the procedural unfairness caused a 'substantial and irrevocable prejudice to the employee' or where a dismissal is based upon unfair procedures which have caused the employer to ignore or fail to receive an innocent explanation (Antonakopoulos at 389); (i) Two previous cases have resolved (or potentially resolved) applications for review of the removal of a police officer on procedural grounds alone (we note that a similar approach was also taken with respect to an application brought by a probationary constable under s 84 of the IR Act: Owens v NSW Police Service (1998) 87 IR 1); (j) In Bigg, the Full Bench resolved the matter upon the basis of procedural defects of a very significant character: the Acting Commissioner of Police had failed to have regard to relevant material, namely, the evidence of the applicant before the Police Royal Commission. This was particularly significant given that the Commissioner was required, under the statutory regime applying at that time, to direct his attention to material before that Royal Commission, and, hence, the evidence omitted from consideration was critical to the applicant making out his case; (k) In Van Huisstede , the Commission found (at [234]) that there was 'a sufficient basis to determine that the applicant's removal was harsh, unreasonable and unjust' based upon 'procedural deficiencies' but that having regard to, inter alia , 'the Full Bench decision in Newton (No 2) (at 79)', it was 'appropriate to also consider the substance of the decision to remove the applicant'. (The reference to Newton (No 2) in this context was a reference to that part of that Full Bench decision which stressed that s 181F(1) dedicated that the Commission was to conduct a merit review of a s 181E application and consider the whole of the circumstances of that matter.) Further, the Commission was concerned that the Commissioner had made 'explicit findings as to the veracity of the allegations against the applicant without having before him details of the allegations made and without regard of other evidence which would have thrown light upon the nature of the allegations' (at [233]). The Commissioner reached his decision in circumstances where 'the evidence before him would have caused considerable disquiet in the mind of a reasonable observer'. It might also be noted that the Commissioner did not present a merit case, as such, in the proceedings; (l) It follows that procedural failures will not of themselves necessarily (or often) result in an affirmative finding for an applicant under s 181E of the application: Bigg at 460, Starr at 140 , even though procedural failures may attract significant attention in review proceedings (of the kind earlier described), particularly by reference to the decision in Little (No 2); (m) Our final observation, in this respect, is that the review process is not in the nature of an administrative law review. The significance of procedural failures is to be weighed as part of the overall assessment of the application brought under s 181E(1): Hosemans (No 2) at 107. Principles of administrative law may well inform, however, considerations as to whether the removal was harsh, unreasonable or unjust, as they direct attention to whether a step taken or omitted by the Commissioner has resulted in an unfairness which attracts one of those epithets. For example, the adoption of the principles from the judgment of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 in Bigg was for the purposes of guiding the resolution of the merit review including the procedural issues involved therein. … 24 I shall return later to the reasoning in Reid-Frost, in the particular context of my conclusions as to procedural issues in this case. However, at this juncture, I would reiterate what I said in Probst at par [20] as to the procedural requirements under s 173(5) of the Act: 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. Having regard to these principles, I do not consider that there has been any relevant denial of procedural fairness to Sgt Jackson so as to enable a finding that the Order is beyond power, or harsh, unjust or unreasonable. Even if Sgt Jackson's evidence is accepted at its highest and I were to accept that there existed in the process the procedural deficiencies alleged by her, I do not consider that they would have caused "a substantial and irrevocable prejudice" to Sgt Jackson. This is particularly the case as a result of the process instituted by DS McDonald under s 173 of the Police Act. 2. Finally on procedural matters, Mr Tedeschi made the following submissions: [20] "The next point is that you, Commissioner, asked Mr Darams if you found that there had been some imperfections in the previous process before it came to Superintendent McDonald how you could take that into account. We suggest there's another way that you can take into account apart from the one that you mentioned, and that is that Superintendent McDonald himself in assessing the appropriate penalty should have taken into account the length of delay, the number of times it had been considered and then in him failing to take it into account that means that his order was harsh, unfair and unreasonable. So it's just another way of taking it into account." 1. I have already addressed Mr Tedeschi's submissions to how many times each LMI can properly have been said to have been "considered". 2. It did take a considerable time for the respondent to finalise its investigations into all of the LMIs and ultimately to make the Order and take other non-reviewable action. To some extent this is reflective of the number of allegations and the many factual matters that had to be addressed or considered by the parties. Some delays were occasioned by Sgt Jackson's medical condition, for which of course she cannot be held responsible. It is certainly not the case that the respondent can be held responsible for all of the delays. 3. I do not necessarily accept that DS McDonald was obliged to take into account the delay in finalising the complaints in determining the appropriate penalty to impose on Sgt Jackson, but it is not necessary to determine the point. In the circumstances of this case, and considering the length of and causes for the delay, I do not consider that the delay itself required a different outcome to that imposed by DS McDonald. The Order cannot be impugned on that basis. Conditions under which Sgt Jackson was working 1. Sgt Jackson adduced considerable evidence regarding the work environment at Oberon, and in particular the pressure that she was under to cope with her workload. Her evidence included that the Oberon Police Station was chronically understaffed; that it was difficult to obtain, or reliably obtain, relief or additional officers from other stations in the sector; and, that the stress on her was increased by often being the only person available to perform recall work. She produced reports and referenced statistics which she said demonstrated that her workload was greater than that of comparable officers in other sectors and that "the Oberon Sector completed more than double the amount of police reports as the Blayney Sector and more than Portland" during the relevant period. [21] 2. The submissions made on behalf of Sgt Jackson include the following: "59. During the 3¼ years that Sergeant Jackson was employed as the Sector Supervisor at Oberon, for most of the period she was effectively doing the work of 2-3 Officers, because the number of Officers allocated to Oberon was generally about half the establishment number. It is hardly surprising that her recordkeeping duties suffered as a result. It is also not surprising that at times of excessive pressure she had to prioritise which matters to focus on and which would have to wait. Considering the pressure that she was under, her allocation of her precious time was a matter which required judgement and discretion on her part. It is submitted that the majority of the complaints considered below arose from the need for her to effectively and efficiently use her time in the best possible way and under the severe staffing constraints that she was under. 60. As a result of the unreasonable and unsafe working conditions in the Oberon Sector, namely the severe under resourcing of the Sector, combined with the continual flow and back up of jobs coming in, Sergeant Jackson gradually developed a psychological injury that finally manifested itself on 29 August 2015. Although Sergeant Jackson only became aware of this injury on that date, it is clear that it had an impact on her work performance prior to that date. The injury was later documented by experts to be wholly due to the extreme pressure of work that she was under due to understaffing, and the flow on effect that had. Documents to be tendered show that this work injury has since resolved, so that she is now available to return to her full previous duties." 1. The medical report of Dr John Lam-Po-Tang dated 25 November 2015, referred to at [68] above, provides some corroboration for these submissions. 2. It did not appear to be in contest that at relevant times the Oberon Police Station was running with less than a full complement of officers. There was disagreement, however, as to whether Sgt Jackson was as busy as she described. 3. In his statement, DCI Cogdell challenged Sgt Jackson's evidence. He disagreed with her construction or interpretation of the reports on which she relied, suggesting on the basis of alternative reports that he attached to his statement that those prepared by Sgt Jackson presented a "misleading figure of Sergeant Jackson's workload". [22] He stated: "40. On the basis of these reports, and knowing the area from about 20 years of policing in the Chifley Local Area Command, it is unlikely that Sergeant Jackson was as busy as she claims, or that her workload would have precluded her from properly attending to the matters that form the complaints in the various LMIs that were raised with her. …" 1. DCI Cogdell also adduced evidence calling into question whether Sgt Jackson performed as much recall work as she claimed. 2. Mr M11 deposed in his statement as follows: "14. Having spent some time overseeing the Oberon Sector, I can say that in my experience, the workload there (as compared with other stations in the Command) is minimal. Notwithstanding this, I am aware that from time to time, there have been staffing issues at Oberon and in particular, there have been issues with staff availability for recalls." 1. In his statement, Mr M13 deposed as follows: "12. I refer to paragraphs 80 to 81 of the [Jackson] Statement. I was not aware of the exact nature of Sergeant Jackson's workload at Oberon, but l am aware, by virtue of my role, that Oberon is not a busy station. Part of my role is to monitor crime trends across the District and implement strategies in response to them. As a result of the duties I perform, I am aware that Oberon has very modest crime rates and a low workload for police. I do not accept that Sergeant Jackson's lack of action in this matter was caused by her workload. Sergeant Jackson had ample opportunity to progress this matter and bring it to a conclusion in an acceptable time frame." 1. During the course of his evidence Former Sergeant 1 acknowledged that Oberon was "frequently understaffed" and that this was a matter about which Sgt Jackson was "constantly complaining". [23] However, he went on to say that Oberon was "not an overly busy station". [24] 2. On balance, I accept that Sgt Jackson likely came under some pressure through being (at most relevant times) the only officer resident in Oberon. However, I regard this as a mitigating, but not exonerating factor. 3. As one of the conditions under which she was working, I have also taken into account Sgt Jackson's medical condition, as referred to above at [67] – [71] above. Once again, I see this as a potentially mitigating factor, in respect of those LMIs that involve her conduct in the second half of 2015 (LMI1503243, LMI1503415 and LMI1503417). I do not consider, however, that Sgt Jackson has established that her condition wholly exonerates her in respect of those LMIs. 4. I consider that this is even more the case in respect of the other LMIs, which predominantly relate to events in 2013 and 2014. I do not regard Sgt Jackson's medical condition as being relevant to those LMIs. 5. For the sake of completeness I observe that there is no evidence that Sgt Jackson was under any medical restrictions when preparing the Response or her evidence in these proceedings. Matters to which the respondent should not have had regard 1. A further basis on which Sgt Jackson sought to impugn the Order was that DS McDonald took into account irrelevant and prejudicial material. 2. Under the heading "Background", the Notice included a summary of six prior LMIs involving Sgt Jackson between May 2009 and April 2014 ("Earlier LMIs"). The Notice referred to Sgt Jackson having "received counselling in relation to a sustained finding" in respect of each Earlier LMI. 3. Under the heading "Consideration" in the Notice, DS McDonald wrote: "It appears that you have continued to fail to reach the standards required of you, even after receiving counselling in relation to previous sustained findings that you failed to adequately investigate matters in April 2014, June 2011, June 2009 and May 2009. I am concerned that you have consistently failed over a lengthy period of time to meet the standards expected of a sworn police officer." 1. Sgt Jackson addressed the Earlier LMIs at [95] – [99] of her Response. She challenged the basis for finding that three of them had been "sustained". To outline briefly the contentions: 1. the Notice stated that on 6 May 2009 Sgt Jackson had received counselling in relation to a sustained finding that a matter had become statute barred. Sgt Jackson asserted that a region review found that the matter had not become statute barred, leading her to apply on 5 August 2009 to have the matter removed from her file. This had obviously not occurred; 2. the Notice stated that on 21 June 2011 Sgt Jackson had received counselling in relation to a sustained finding of insufficient inquiries regarding ownership. However, in a letter to Sgt Jackson's then lawyers on 8 March 2018 [25] DS McDonald had written in relation to this LMI: "Not sustained however Sergeant Jackson was verbally reminded of her responsibilities on 18 June 2009 in Penrith." 1. the Notice stated that on 4 April 2011 Sgt Jackson had received counselling in relation to a sustained finding that she had failed to investigate a report of a stolen vehicle and had failed to seize what were alleged to be illegal drugs. Sgt Jackson contended that it was later ascertained that the vehicle was not stolen and that the drugs in question were paracetamol. (I digress to note that in relation to this LMI, Sgt Jackson seems not to be challenging the facts that the allegations were sustained and that she had received counselling, but rather whether the allegations should have been sustained.) 1. Despite having received these submissions in the Response, under the heading "Background" the Order contained an identical recitation of the Earlier LMIs as that contained in the Notice. However, under the heading "Consideration" the Order stated: "I also note your prior disciplinary history and that previous sustained matters, for which you have received counselling, follow a similar vein in that they relate to the performance of your duties and/or your conduct. You have therefore been on notice that your conduct was not acceptable and yet you have done little to adjust your behaviour. This provides me with little comfort that you will adjust your behaviour in future." 1. Sgt Jackson's evidence in relation to the Earlier LMIs in these proceedings was in all material respects the same as the matters she had raised in the Response. The respondent led no evidence in reply to that material. 2. In her submissions Sgt Jackson contended as follows: "46. The applicant submits that in considering the three earlier complaints, Superintendent McDonald took into account irrelevant and prejudicial material when he determined the present findings. The whole process of decision-making in relation to the present complaints has been seriously compromised. As a result, the decisions are ultra vires or 'beyond power' or 'harsh, unreasonable or unjust': Police Act s 174(1)." 1. As stated, the Earlier LMIs were described identically in the Order and the Notice. This might suggest that no consideration was given to Sgt Jackson's Response on the point. 2. However, it is possible to discern from the difference in the language used in the Notice (reproduced at [153] above) as opposed to the Order (see [155] above) that Sgt Jackson's submissions were indeed taken into account. This flows from the fact that the Order makes no reference to months and years, and in particular to the Earlier LMI from June 2011. There is no error or misdescription in DS McDonald referring in the Order to "previous sustained matters, for which [Sgt Jackson had] received counselling". 3. Even if it could be said that DS McDonald had failed to take Sgt Jackson's submissions into account, and approached his decision on the description of the Earlier LMIs appearing in the "Background", Sgt Jackson has not demonstrated that this was sufficiently prejudicial to result in the entire process being "seriously compromised". In light of the entirety of the allegations against Sgt Jackson and the process resulting in the Order being made, the three (possibly two) Earlier LMIs which may have been misdescribed in the Background to the Order have not been shown to have the materiality that I consider would be required to undermine the Order in the manner submitted. 4. It follows that I do not accept that the Order was beyond power, or harsh, unreasonable or unjust, on the basis that DS McDonald took into account irrelevant and prejudicial material. 5. That said, the Earlier LMIs have not weighed heavily on my decision in this matter. Allegations made by Sergeant Jackson against others 1. A notable feature of Sgt Jackson's response to the LMIs, including in the current proceedings, was her consistent criticism of the conduct of others and her willingness to accuse others of quite egregious behaviour, often in the complete absence of corroborating evidence. 2. The primary, but not sole focus of Sgt Jackson's accusations was the witness known as Former Inspector 1. To put these matters in context, some background is required although as will become clear it is not necessary to traverse the facts in detail. 3. Sgt Jackson described a difficult relationship with Former Inspector 1. In April 2015 an issue arose between Sgt Jackson and Former Inspector 1 relating to a decision by Former Inspector 1 to return money to a suspect which had been seized by Sgt Jackson. This was done without Sgt Jackson's knowledge; she was in fact on leave at the time. Sgt Jackson requested that Former Inspector 1 provide a statement to explain his actions. Former Inspector 1 was reluctant to do so, putting his position in terms which Sgt Jackson characterised as including "veiled threats" that she would be the subject of a complaint if she persisted in requesting a statement. 4. After some further correspondence between him and Sgt Jackson, Former Inspector 1 provided a statement on 7 August 2015. It was critical of Sgt Jackson. With the hyperbole that unfortunately characterises some of Sgt Jackson's written evidence, she describes the statement as full of "opinion, hearsay and hate". [26] 5. Following receipt of the statement by Former Inspector 1, on 7 August 2015 Sgt Jackson informed Commander Robinson, the Local Area Commander, that she wished to make a complaint against Former Inspector 1 regarding the return of money to the suspect. Commander Robinson informed Sgt Jackson that her complaint would need to be put in writing. 6. As noted above, Sgt Jackson was first served with an LMI – LMI1502466 – on 13 August 2015. 7. Sgt Jackson was concerned by the coincidence in timing between making a complaint against Former Inspector 1 and her receiving notification of the first complaints against her, leading to suspicions that the complaints may have been levelled against her as a form of reprisal. She raised these concerns with Insp Robinson who agreed to look into them. 8. In response to some questions from me during the hearing, Sgt Jackson confirmed that Inspector Robinson would have looked into her concerns and that if he had found anything untoward he would have taken appropriate action. 9. Sgt Jackson submitted her written complaint against Former Inspector 1 on 22 October 2015. 10. On 9 November 2015 Sgt Jackson was informed by Insp Spliet of the existence of LMI1503243, LMI1503415 and LMI1503417. 11. By 2016 Sgt Jackson had apparently become convinced that the LMIs were all part of a campaign orchestrated by Former Inspector 1 to discredit her, if not to seek to have her removed from the police force altogether. This belief was based primarily on the coincidence in timing between her complaints regarding Former Inspector 1 and her being served with LMIs, but also on some other events in 2015 which it is not necessary to detail. 12. Sgt Jackson's belief was evidenced in a Public Interest Disclosure made by Sgt Jackson on 27 March 2016 concerning the conduct of Former Inspector 1 in relation to the circumstances described at [165] above. For present purposes I note only the following passage in the document: "It is also my recommendation that the motive for the fourteen complaints against me be explored with the view to abolishing them should it be found they exist only out of spite and for the purpose of causing damage to my career and to tarnish my ethical service within the NSWPF." 1. On 11 May 2016 Sgt Jackson made a second Public Interest Disclosure concerning the conduct of Former Inspector 1. Once again, for present purposes I need note only the following passage: "It is my recommendation that the New South Wales Police Force acknowledge the clear and targeted pursuit of me by officers in this Command, primarily [Former Inspector 1], by taking steps to prevent further attempts to discredit my name and sabotage my career by removing me from this Command as a priority." 1. In her Response Sgt Jackson maintained that the LMIs were in the nature of "payback" for having made a complaint against Former Inspector 1 on 7 August 2015. This not only involved direct criticism of, and allegations against, him. [27] It extended to allegations that numerous other officers were complicit with, or acting in concert with Former Inspector 1, to remove Sgt Jackson from Oberon, if not NSW Police altogether. Those who were the subject of such allegations were DCI Spliet [28] , DCI Cogdell [29] , Insp Harvey [30] , Insp Powell [31] , Karen Nixon [32] and Mr M13. [33] 2. By necessary implication, Sgt Jackson's allegations against Former Inspector 1 must extend to call into question the motives and behaviour of those who made the complaints giving rise to the LMIs, those who investigated them, those who made findings and those who determined the action to take against Sgt Jackson as a result of those findings. 3. These allegations were repeated, in one form or another, in the Jackson Statement and the Jackson Affidavit. Her written submissions relied heavily on the argument that the LMIs were a form of retaliation, which in turn formed the basis for submissions that the Order was a form of victimisation in breach of cl 51 of the Police Regulation 2015 (NSW) or a breach of the Public Interest Disclosures Act 1994 (NSW). 4. During his closing submissions, Mr Tedeschi stated that Sgt Jackson was not pressing the submission that some or all of the LMIs were initiated against her as reprisal for her making a complaint against Former Inspector 1. Any submissions that were premised on that allegation were abandoned. However, to my mind this does not mean that the allegations made by Sgt Jackson can be ignored. 5. In their statements (to which the Jackson Affidavit in part replies) each of DCI Cogdell, DS McDonald, Insp Powell, Insp Spliet, Mr M11, Mr M12, Mr M13, Former Inspector 1 and Former Sergeant 1 deposed either to having been unaware of Sgt Jackson's complaint against Former Inspector 1 or of not having been motivated by that complaint to take reprisal action against her. 6. At the hearing on 29 March 2019 I granted leave to Mr Tedeschi, over Mr Darams' objections, to call evidence in reply from Sgt Jackson. That evidence included testimony as to the basis for Sgt Jackson having reached the view that the LMIs were payback for the complaints that she had made against Former Inspector 1. It included the following exchange between Mr Tedeschi and Sgt Jackson: [34] "Q. Is there anything else that you'd like to add in response to that issue, as to why you believed at that time, that it was reprisal action? A. Because of how soon after the written complaint had gone in. Yeah the timing on it were just, I was really worried about the timings that it was looking that way, yeah. Q. Moving now to this particular hearing? A. Yes. Q. On Tuesday this week there were a whole lot of files that were produced by the Commissioner of Police? A. Yes. Q. Have you, to a very limited extent, had access to those files? A. I did. Q. Has your solicitor and counsel also had access to them? A. We did. Q. Have you been able, amongst other things, to have a look at the original complaints that initiated each of those LMIs? A. Yes. Q. What is your view now as to whether or not those complaints were reprisal action against you? A. Having seen the dates on the reports and having seen the authors of the reports I can't say that I now agree that it was reprisal action. Q. I think you were first given an opportunity to see those files after you'd completed your evidence on Tuesday? A. Yes." 1. With respect, it was appropriate for Sgt Jackson to withdraw her allegations of retaliation, victimisation or the like. The evidence simply does not support the contention that any or all of the LMIs were initiated in payback for Sgt Jackson having complained about Former Inspector 1. 2. Further, the evidence does not disclose to my mind any other basis on which it could properly be found that any of the individuals who made the complaints giving rise to the LMIs, who investigated the LMIs or who recommended or imposed sanctions as a result of the findings of those investigations acted on the basis of any improper or inappropriate motives. 3. However, Mr Tedeschi submitted that the Commission should find that at the time Sgt Jackson made her allegations against Former Inspector 1 there was a reasonable basis for her to do so. He put the matter in these terms: [35] "The question is did she have a reasonable belief at the time that this was payback? And that's why her evidence today was so important. And what we submit is that her reasoning was based on objective evidence that had accumulated over a period of months and that that situation, that knowledge, that belief, was a reasonable belief up and until Tuesday of this week." 1. I acknowledge to a point that during the hearing Sgt Jackson and her representatives gained access to information that she did not previously have, and which may have caused her to reconsider her views regarding the motivations of others. I also acknowledge that the coincidence in timing between making a complaint against Former Inspector 1 and her receiving notification of the first complaints against her, coupled with the other matters to which she referred in her evidence, might have caused Sgt Jackson to be suspicious and concerned. It was appropriate and reasonable for her to raise those concerns with Insp Robinson in August 2015. 2. However, it is not apparent on the evidence that there was a proper basis to raise those concerns to the direct accusations of wrongdoing levelled against Former Inspector 1 and others in the Response, the Jackson Statement and the Jackson Affidavit. This demonstrates a lack of judgment, restraint and professionalism on Sgt Jackson's part. 3. Further to the matters already referred to, I observe that the Response goes beyond responding to the allegations contained in the Notice. It traverses a very wide range of interpersonal and other issues that it is difficult to see have any bearing on or relevance to the allegations. There are passages in the Response in which fellow officers are the subject of insinuation and accusations, [36] where the relevance of those issues to the allegations against her is entirely unclear. 4. The overwhelming impression created by the evidence is that Sgt Jackson determined that attack was the best form of defence. She presents as someone who is largely unapologetic; who does not genuinely accept that her performance or conduct can in any but a few minor respects be criticised; and who cares little for impugning the honesty and integrity of others who call her conduct into question. Her willingness to cast aspersions on others (with little, if any, corroborating evidence), and to direct attention to their failings possibly to distract from her own, reflects poorly on her. It undermines her credibility. Allegations against Sgt Jackson 1. I will deal separately with each of the LMIs, in the same order in which they were addressed above. 2. Before doing so, I observe that in respect of all of the allegations the respondent alleged that Sgt Jackson had engaged in conduct contrary to the Police Act, the NSW Police Force Handbook and the NSW Police Force Code of Conduct and Ethics. In some cases, reference was made to additional policies or procedures, such as the "Personal Use of Social Media Policy and Guidelines" in respect of LMI1503243 and the "Crime Reporting Standards" in connection with LMI1502466. The particular provisions of the legislation and other documents on which the respondent relied were set out in the Notice and Order. Sgt Jackson accepted that the various provisions applied to her employment at all relevant times. 3. I will not reproduce those provisions. I have taken them into account in determining whether or not the allegations against Sgt Jackson can be sustained. 4. For ease of reference, I will use the phrase "relevant legislation, policy or procedures" to include the legislation and other documents referred to in the Notice and Order. Where I use the phrase in connection with a particular allegation I intend it to refer to the particular provisions which the Notice and Order allege were breached by Sgt Jackson in respect of that allegation. LMI1502466 1. The allegations against Sgt Jackson arising from this LMI, and the facts on which they were based, were set out in the Notice as follows: "It is alleged that on 24 August 2014, you attended Mawhoods IGA in Oberon and took a report of the theft of two cartons of Coca Cola from a pallet in the rear dock but failed to properly investigate the matter. The total value of the items was $65.94. On that date, COPS event E55433833 was created by you. On 3 September 2014, case 055261537 was created by the Chifley Crime Coordinator and allocated to you for investigation. A review of the case indicates that no narratives, actions or updates were made to the case for the next eight months. On 27 February 2015, Inspector Mark Wall added a comment requesting that the case be actioned. No update followed this request. On 27 April 2015, you added a narrative outlining a number of enquiries you had made in relation to the matter and submitted it for suspension. On 29 April 2015, the request for suspension was endorsed by the Chifley Investigations Manager. In response to a directive memorandum dated 1 December 2016, you detailed the investigations you allegedly undertook in relation to this matter that included a number of attempts at obtaining CCTV footage and attending an address a number of times in relation to a nominated motor vehicle. You stated that the WebCOPS records show that you did investigate this matter properly and exhausted the lines of enquiry available to you. None of these enquiries were recorded in case C55261537 until the final narrative was added. Additionally, you offered no contemporaneous records to support your version. In July 2014, the owner of the Royal Hotel at Oberon contacted you in relation to a fraud that allegedly had been committed by the licensee of the hotel. It is alleged that you told the hotel owner that police would attend the hotel to see him. When no police attended, it is alleged the following day he again contacted you and you again said someone would attend. Again, no police attended and on 10 July 2014, the owner contacted Bathurst Detectives directly to report the alleged fraud. As a result of the report to Bathurst Detectives, a CAD job was created and another officer from Oberon attended the Royal Hotel and took a report of the alleged fraud from the owner. ln your response to directive memorandum dated 1 December 2016, you indicated you were contacted by the hotel owner who informed you of the fraud and you discussed the matter. You stated you then completed duty and shortly after were recalled to duty for an extended period that required you to take a 10 hour break that effectively resulted in your only attending the station for a short period the following day. You stated you were only contacted by the hotel owner once prior to him contacting Bathurst detectives. On 21 September 2014, you attended Oberon Correctional Centre and collected a number of drug exhibits that had been seized at the jail. It is alleged that you conveyed them to Bathurst Police station and discovered that two of the items did not relate to the same matter as the rest of the items. These two drug exhibits were later taken to Oberon Police station and secured in the station safe. No record was created in EFIMS or on COPS. You forwarded an email to another Oberon officer to follow up the matter in the following days. [Mr M10] created an event and recorded the items ln EFIMS. In your response to directive memorandum dated 1 December 2016, you indicated you were unable to record the items in EFIMS or create a COPS event as you were not aware of sufficient details of the items to do so. It is alleged that on 18 August 2014, you stopped a vehicle driven by a female that was known to you. Following a search of the vehicle, several items were seized including a knife, a pill bottle and a homemade toy gun. Following the seizure of these items EFIMS records indicate they were not recorded as being received as required. It is also alleged that on 11 November 2014, you attended Jenolan Caves following the discovery of a stolen vehicle. On attendance, it is alleged that you discovered two cigarette butts that you suspected may be connected with the offence and may provide physical evidence as to the identity of the offenders. The cigarette butts were seized and taken to Oberon Police Station however, you did not record the seizure in EFIMS. On 13 November 2014, an audit of exhibits and miscellaneous property conducted at Oberon Police Station revealed the existence of two cigarette butts with an EFIMS sticker affixed to them, X0001342338. Enquiries on EFIMS revealed no record of the number or the existence of the two cigarette butts. An email was sent to you on that day with regards to this and other property items. It is alleged that you did not act on that email and there remained no record of the cigarette butts on EFIMS. On 25 March 2015, [Mr M10] conveyed a number of items from Oberon Police station to Forensic Services Group (FSG) at Bathurst for them to be examined. Among the items were the cigarette butts, X0001342338. On receipt at Bathurst FSG it was discovered that there was still no record In EFIMS of item X0001342338. As a result, [Mr M10] entered the item into EFIMS. During the same audit, it was found there was no record of the pill bottle or knife that had been seized with the toy gun on 18 August 2014 despite them being held at Oberon Police station. EFIMS records indicate that no EFIMS record was made in relation to the pill bottle and the knife was not entered into EFIMS for another seven and a half months - the item being recorded on 2 April 2015. The homemade gun was entered into EFIMS the day after the seizure. In response to a directive memorandum dated 1 December 2016, you admitted you made an error in not entering the cigarette butts into EFIMS. Regarding the other items, you stated you did not intend to seize the pill bottle from the vehicle following the search. You stated you put it in the box but intended on throwing it away as you stated it was just 'rubbish'. In relation to the knife, you stated that the person of interest provided a reason for the possession of the knife and you 'opted not to book it up immediately because if [Ms E]'s excuse was deemed acceptable she'd get it back.' You agreed that the knife was booked up 'sometime after it had been seized.' Allegation 8 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the issue, that you failed to adequately investigate the following: • the alleged theft that occurred at Mawhoods IGA in Oberon when it was reported to you on 24 August 2014; • the alleged fraud at the Royal Hotel at Oberon when it was reported to you some time before 10 July 2014. In particular, it is alleged that you failed to at least: • record sufficient details in your police notebook in relation to the alleged theft at Mawhoods IGA in Oberon, including the enquiries you allege to have made; • record sufficient details in your police notebook in relation to the alleged fraud at the Royal Hotel at Oberon; • create a record in EFIMS or COPS in relation to the drug exhibits collected from Oberon Correctional Centre on 21 September 2014; • create a record in EFIMS or COPS in relation to the items seized on 18 August 2014; • create a record in EFIMS or COPS in relation to the two cigarette butts seized on 11 November 2014. In the circumstances, there appear to be reasonable grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the NSW Police Force Handbook, and the NSW Police Force Code of Conduct and Ethics… and the Crime Reporting Standards." (Emphasis in original) 1. On their terms, three of the five "particular" allegations are not apparently related to the two alleged failures to investigate. However, no issue seems to have been taken with the Notice on that basis. 2. That said, when the "particulars" do not correspond to the "allegations" it seems necessary to address all allegations that have been made against Sgt Jackson. Mawhoods IGA investigation 1. Sgt Jackson deposed that she attended the Mawhoods IGA at Oberon on 24 August 2014 having received a call from the owner of the supermarket. He reported the theft of two 30-can blocks of soft drink from the rear dock. Sgt Jackson recorded details in her police notebook and viewed CCTV footage. The footage showed a vehicle which the proprietor suggested might have been involved in the theft, although the footage did not show the offenders getting into the vehicle. Sgt Jackson requested a copy of the footage. As the proprietor had no DVDs, Sgt Jackson left to procure one. She returned a short while later, but had to leave the DVD with the proprietor as he was having difficulty getting the footage to download. 2. Later that day, Sgt Jackson entered the event into COPS. She proceeded onto three rest days, returning to work on 28 August 2014. 3. Sgt Jackson does not appear to have immediately followed up on the investigation. She stated that "within weeks" of the offence she discovered a DVD in her pigeon hole at the Oberon Police Station. [37] On attempting to view the footage the DVD was blank. 4. Sgt Jackson returned the DVD to IGA Mawhoods but by then the CCTV footage was no longer available. 5. At some point Sgt Jackson identified the vehicle she had first seen in the CCTV footage. However, in the absence of evidence that the vehicle was involved in the offence Sgt Jackson was unable to take the matter further and suspended the investigation. 6. There is no evidence to suggest that there were further steps that Sgt Jackson could and should have taken to pursue the investigation. Rather, DS McDonald accepted that in the absence of CCTV footage there was "no further way in which that matter could be investigated". [38] 7. Sgt Jackson produced in her evidence a copy of her police notebook for 24 August 2014, which appears to record her meeting with the proprietor of IGA Mawhoods that day. There are no other entries from the notebook which would evidence the steps which Sgt Jackson said she took to investigate the theft. Her evidence suggests that these are the only relevant entries. 8. I digress to observe that the significance of maintaining notebooks was raised with Sgt Jackson under cross-examination as follows: [39] "Q. As a police officer, New South Wales police officer, you're issued with an official notebook? A. Yes. Q. You should carry that notebook at all times when you're on duty unless it's impractical. Do you understand that? A. I do. Q. You understand there's a section in the police handbook that covers notebooks? A. I understand as a supervisor that we need to ensure that everyone's getting their notebook checked weekly, every seven days. Q. Just back to my question though, do you know that in the police handbook there's a section on notebooks? A. I don't know that specifically, but I would not be surprised to hear that, no. Q. What if I put this proposition to you. Making notes at the time of an incident is a professional approach to policing. Do you agree with that? A. Yes. Q. Have you heard or read something to that effect before? A. I think that just comes as natural training, that if someone's reporting something to you by, you know, for an example a stealing matter or some such, that you would take out your notebook and you would write down details. Q. What about this following proposition. Notebooks provide a valuable tool for you as a police officer including helping you to recall incidents and might help if you need to justify your actions. Do-- A. Yes, I would agree. I've provided copies of my notebook, in part, throughout this answer, submission and statement. Q. Have you read something to that effect before, a-- A. Not specifically, no. Q. But in any event you agree with that proposition? A. Yes. In my experience notebooks have been very helpful, yes. 1. In relation to her maintenance of COPS records in relation to the investigation, Sgt Jackson gave the following evidence under cross-examination: [40] "Q. Did you read Inspector Wall's note in COPS asking for an update on the matter some eight months after it was completed? A. Yes. Q. And do you accept it took you another two months to include the entries at that stage? A. Inspector Wall was very well aware of the conditions I was working under at the time and the reason why the non-actioning of cases is something I fell short on. I don't deny that there were shortcomings with my case management, but as I've explained clearly in my statement I was working under extremely extraordinary circumstances in staffing - critical staffing issues and found that it wasn't humanely possible to be across all aspects of that role being so short-staffed. And I also acknowledge that there were shortcomings in my duty at times and one of those was the recording of actions in cases. Something had to give and that's what it was. So yes, I agree with you, I did not action that case." 1. On the evidence, I accept that Sgt Jackson took the investigation as far as she was able. It follows that I cannot be satisfied that she failed to investigate the theft as alleged. That allegation is not sustained. 2. Sgt Jackson has not demonstrated that she maintained adequate records of her activities in her police notebook. I find that allegation to be sustained. Alleged fraud at Royal Hotel 1. Sgt Jackson's evidence was that she took a call on 9 July 2014 from one of the proprietors of the Royal Hotel at Oberon, alleging that a fraud had been committed. The individual, who is a former police officer, expressed a preference for the matter to be investigated by detectives rather than uniformed officers. Despite this, Sgt Jackson arranged to meet him the following day. 2. Late in the evening of 9 July 2014, Sgt Jackson was recalled to work, where she remained until 6.00am. To provide for the necessary breaks between shifts, she was not due to start her next shift until 4.00pm on 10 July 2014. She was only briefly at work that day. 3. In the meantime, ostensibly due to the failure of an officer to attend the Royal Hotel on 10 July 2014, the proprietor of the hotel called Bathurst Detectives. A senior constable subsequently attended the hotel and became the officer in charge of the investigation. 4. It is apparent that Sgt Jackson did not attend the Royal Hotel on 10 July 2014 as she had agreed, but this seems to be due to circumstances largely beyond her control. There is no suggestion that she had responsibility for the investigation after 10 July 2014. In the circumstances, I am at a loss to understand how the respondent contends, much less the basis on which DS McDonald determined, that there was a failure by her to investigate the alleged fraud. 5. I find that the allegation that Sgt Jackson failed to adequately investigate the fraud at the Royal Hotel at Oberon when it was reported to her is not sustained. 6. There is no evidence that Sgt Jackson made any entries in her notebook regarding this matter. On that basis, I must find that the allegation that she failed to record sufficient details in her police notebook in relation to the matter is sustained. Drug exhibits seized from Oberon Correctional Centre on 21 September 2014 1. The allegation regarding the drug exhibits seized from Oberon Correctional Centre on 21 September 2014 appears not to have been sustained by DS McDonald. The Order states: "Having considered your Response, I am satisfied that you created a record in EFIMS/COPS in relation to the drug exhibits collected from Oberon Correctional Centre on 21 September 2014." 1. That would seem to dispose of the allegation as put to Sgt Jackson in the Notice. 2. Despite that, the question was raised during the proceedings concerning Sgt Jackson's actions in returning the exhibits to Oberon Police Station and securing them in the station safe. Sgt Jackson's evidence was as follows: "294. I attended Oberon Correctional Centre in the evening of Sunday 21 September 2014 on behalf of Senior Constable Cumming, to collect drugs seized during a vehicle he searched there [sic], which was now a matter he was investigating. When I took possession of the bags, I was required to sign for them in the gaol's accountable book, therefore creating a record that they were in my possession. I took the bags directly to Bathurst Police Station and booked them up. It was during this process that I discovered two unrelated bags had no identifying information on them. The bags that could be entered onto the system were entered on there, and I created corresponding WebCOPS Events. 295. The bags with no information on them made it impossible for me to create a WebCOPS Event, which also meant I could not enter them onto our exhibits system. I tried to get the information by contacting Oberon Correctional Centre while I was at Bathurst Police Station that night. I was advised to call back the following day as staff would be on shift then who could assist me. The Bathurst Supervisor would not accept the two bags as is. I'm not certain but I vaguely recall the Supervisor being either Acting Sergeant Roser or [Mr M11]. I don't remember the exact conversation but I do recall the Supervisor being definite in their decision not to take the bags. 296. At the time, there were only two drug safes in the Chifley Command - one at Bathurst and one at Lithgow. Following Standard Operating Procedures as set out by the Command, neither the Bathurst nor Lithgow Supervisors could accept the bags. In that circumstances [sic], the only option I had was to maintain security of the unidentifiable bags by locking them in the station safe at Oberon. The Command provided no other means for this to be dealt with. Had I have been rostered on the following day, I would have made contact with the gaol myself and obtained the required information so the required records could be created. Because I was not rostered on, I requested the officer who was on duty to chase up the information. I did that by sending him an email before I went home, creating a further record of the bags' existence and location…" 1. The respondent did not directly respond to this evidence. 2. Under cross-examination DS McDonald gave the following evidence: [41] "Q. The drug exhibits that were collected by Sergeant Jackson from Corrective Services - I've forgotten where? A. Oberon. Q. At Oberon. Accepting her version of events she only found out when she arrived in Bathurst that one of those drug exhibits didn't have a tag associated with it, correct? A. Yes. Q. The officer at Bathurst was only prepared to accept the drug exhibits that had tags attached to them? A. I can't answer that one, no. Q. Well that's her response, isn't it? A. That's her response. Q. If you accept her response do you agree that she had no option but to return to the Oberon Police Station with that drug exhibit and keep it somewhere safe at Oberon? A. I don't accept that, no. Q. What do you say she should've done? A. She should have made further inquiries whilst at Bathurst to enable her to enter it as an exhibit at Bathurst. Q. Doesn't her response indicate that she did make an attempt to get further information about the exhibit but was unsuccessful? A. If you accept her version, yes, but I am-- Q. So accepting her version do you agree that the only thing that was left for her to do was to place that drug exhibit for safekeeping somewhere at the Oberon Police Station so that inquiry could be made the next day? A. No. Q. What do you say should have been done? A. She should have lodged it at Bathurst where there is a secure drug safe as per our [SOPs]. Q. According to her version she tried to do that and the officer refused to accept the drug exhibit at the Bathurst Police Station because it didn't have the appropriate identification tags associated with it. She wanted to leave it there, she was desperate to leave it there. The last thing she wanted to do was to have to go back to Oberon and enter it herself into some place of safekeeping at Oberon where she did not have a drug safe. Do you accept that that's her version? A. I accept that's her version, yes. Q. And based upon her version do you agree that she had no other option but to do what she did, to return to Oberon with this unmarked drug exhibit and to notify other people that the drug exhibit had been placed in a safe place somewhere in the Oberon Police Station? A. No I don't. Q. She didn't try and hide the fact that she had this drug exhibit, did she? A. No she didn't. Q. She sent an email - I can't remember to whom - about this drug exhibit; if you accept her version the officer at Bathurst refused to accept that drug exhibit for safe keeping because it didn't have a tag attached to it? A. If it's in her version, yes. Q. Accepting that, accepting that, do you agree she couldn't keep it with her and take it home, could she? A. I agree with that, yes. Q. She couldn't keep it in her car, right? She couldn't throw it away? A. No. Q. She couldn't return it to the Corrective Services Facility at Oberon, so she did the only thing that was still left for her to do, which was to place it in a place of safekeeping at Oberon Police Station? A. I don't believe so, it's too great a risk. Q. Well what else could she do? A. Made inquiries, sufficient inquiries, to enter into [EFIMS]. Q. She did that. She made inquiries and she was unable to get any further information about this exhibit. It was unidentified at that time? A. Mm. Q. That's what she says in her response? A. Mm. Q. I want to suggest to you that she did the only thing that was still available for her to do? A. I think it's still too great a risk." 1. While DS McDonald clearly framed his answers by reference to Sgt Jackson's version of events, no other version was offered to the Commission. DS McDonald offered no suggestions as to additional steps Sgt Jackson could or should have taken to ameliorate the risk he identified. On the available evidence I cannot see what more Sgt Jackson could have done in the circumstances. 2. I find that the allegation that Sgt Jackson failed create a record in EFIMS or COPS in relation to the drug exhibits collected from Oberon Correctional Centre on 21 September 2014 cannot be sustained. Items seized on 18 August 2014 1. Sgt Jackson gave evidence that on 18 August 2014 she conducted a vehicle search, during which she found syringes, a utility knife, and empty pill bottle and a homemade wooden gun. She did not intend to take the pill bottle, but the driver threw it at her, telling her to keep it. Sgt Jackson claims she took the bottle with the intention of discarding it, as it was no more than rubbish. This does not seem to have been challenged. 2. The homemade wooden gun was seized for further examination and was entered into EFIMS on 19 August 2014. 3. Sgt Jackson conceded that the utility knife was not entered into EFIMS until "sometime after it had been seized". [42] It is not clear from the evidence precisely when this occurred, although there appears no direct response to the assertion in the Notice that it did not occur until April 2015. 4. The Notice and Order make reference to the EFIMS Standards Operating Procedures as providing that: "All exhibits received into a location shall be recorded in EFIMS at the earliest opportunity." 1. As stated, there is no evidence to suggest that the empty pill bottle was in fact an "exhibit". It is also apparently not in dispute that the other items were eventually recorded in EFIMS. I cannot be satisfied, however, that this took place "at the earliest opportunity". 2. I find that the allegation that Sgt Jackson failed to create a record in EFIMS or COPS in relation to the items seized on 18 August 2014 is sustained. Cigarette butts found at Jenolan Caves 1. Sgt Jackson gave evidence that on 11 November 2014 she was "unwell with the flu", [43] although she attended for work. During her shift she responded to a report of a stolen vehicle and subsequent break and enter at Jenolan Caves. While at the scene she identified two cigarette butts that she thought may provide a connection to the offender or offenders. She fashioned a makeshift exhibit bag out of items from her first aid kit and took the cigarette butts for forensic examination. 2. On her return to the station, Sgt Jackson placed the cigarette butts in a brown paper exhibit bag. The evidence suggests that she did not, however, enter the exhibits into EFIMS. Sgt Jackson left work at approximately 3.30pm but was at work on and from the next day, 12 November 2014, although still feeling unwell. 3. It does not appear to be disputed that Sgt Jackson committed an oversight in not recording the cigarette butts in EFIMS, or that this oversight was only discovered during the "audit of exhibits and miscellaneous property" conducted on 13 November 2014, as referred to in the Notice. 4. Sgt Jackson stated that she could "wholeheartedly put this down to feeling the full effects of the flu". [44] 5. There does not appear to be any response by Sgt Jackson to the assertion in the Notice that she was sent an email on 13 November 2014 regarding the cigarettes and other items, and there "remained no record of the cigarette butts on EFIMS". 6. I find that the allegation that Sgt Jackson failed to create a record in EFIMS or COPS in relation to the two cigarette butts seized on 11November 2014 is sustained. LMI1503243 1. The allegations against Sgt Jackson arising from this LMI, and the facts on which they were based, were set out in the Notice as follows: "On 25 and 26 July 2015, it is alleged that you made a number of posts on your personal Facebook account complaining about a change to your rostered shift and duties. You also made derogatory comments about a senior officer, in that you are alleged to have referred to your Duty Officer as an 'arsehole.' A Facebook post of 11.33pm in which you refer to your Duty Officer in an inappropriate manner reads as follows: Okay policy might say he's right but honestly, what are we doing to each other? When did it become the norm to stop giving a shit about the welfare of our own? How is this acceptable from a boss who should be protective of his crew not bending them over til they're about ready to break. Then pitting them against each other to manipulate an outcome favourable to his quest. What an arsehole! [sic] Your evidence You were spoken to about the matter on 9 November 2015 by Inspector Spliet and stated you did not believe that you had breached the Personal Use of Social Media Policy and Guidelines as you did not refer to Inspector Cogdell by name. ln your written reply to a directive memorandum dated 8 September 2016, you stated the situation (of being asked to start at 6am the following day) was 'highly stressful' to you. You also stated that 'Being ten o'clock at night [you] felt it was too late in the evening to call or text [your] local union delegates. With no other medium by which to obtain association advice at this time of night, [you] opted to request this info via [your] profile on Facebook. As at this date [you] had not read the Personal Use of Social Media Policy and Guidelines from cover to cover but had read what [you] perceived to be the main excerpts from this policy and believed the rest was really just common sense. [You were] aware of the part of the policy about publicly posting work related material. Because of this [you] composed the message and adjusted the setting to 'customise,' and carefully selected the audience who could receive this message. Effectively, doing this was exactly the same as sending a private inbox message, text or e-mail and no less secure. In [your] mind [you] had taken the necessary steps so as not to be in breach of the policy.' You disputed that you 'published posts' and say you were having 'a closed conversation with a specifically tailored audience.' You also stated that while the term 'boss' was used, 'at no time was the person identified by name.' You stated 'Effectively, the message referenced an unnamed person. There was no mention of the New South Wates Police Force by name.' You stated that since receiving the directive memorandum you have read the version of the Personal Use of Social Media Policy that applied at the time as well as the current version. You stated 'It has further prompted [you] to fully scrutinise [your] social media profile to ensure [you] continue to comply with what is expected of [you] as a member of the New South Wales Police Force.' NOT IMPLEMENTED: support for w:pict - without v:imagedata You stated that ' without doubt, if [you] had not been subje c t of a psychological injury as at the 25 th and 26 th of July 2015, [you ] would not have responded t o the shift change in such an emotional way nor would [you] have put said emotions in to words.' Allegation 7 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the issue, that you breached the Personal Use of Social Media Policy and Guidelines by referring to your Duty Officer as an 'arsehole' on Facebook, and discussing operational policing matters on Facebook chats. In the circumstances, there appear to be reasonable grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the NSW Police Force Handbook, and the NSW Police Force Code of Conduct and Ethics … and the Personal Use of Social Media Policy and Guidelines." (Emphasis in original) 1. There is not much that needs to be added to the summary of facts set out in the Notice. Sgt Jackson claimed that on the night in question DCI Cogdell called to request that she report for work at 6.00am the next day. When Sgt Jackson demurred the conversation took a turn for the worse and DCI Cogdell directed her to attend for work at that time. 2. Sgt Jackson claimed that as it was too late at night for her to seek advice from her union, the Police Association, she took to Facebook to seek clarity as to the legitimacy or otherwise of DCI Cogdell's direction. There is, however, no evidence of a Facebook post in which any "advice" is sought. The only post in evidence is that referred to in the Notice at [232] above. 3. Sgt Jackson deposed that the recipients of the post included fellow police officers (but not likely superior officers), human resources professionals in the private sector and "friends in management roles". The total audience was "in the vicinity of around 50 people". [45] Perhaps curiously, given the explanation offered by Sgt Jackson as to why she made the post in the first place, there was no suggestion that any of the recipients was a representative of the Police Association. Sgt Jackson accepted that she would have no way of knowing whether any of the recipients were aware that she was a police officer. 4. Having accepted earlier in her evidence that as a sergeant she was required to lead by example, Sgt Jackson further conceded that her Facebook post was not the example that should be set, but that she did not consider that she was "under leadership" at the time as she was in a "relaxed environment". [46] 5. There were three passages of evidence whilst Sgt Jackson was under cross-examination that I consider to be revealing of her attitude towards the allegation. The first was as follows: [47] "Q. In saying that do you say that there's no substance at all to any of the underlying matters that form the complaints? A. Not at all. I think I've been very clear in my reply to the notice in the first notice that I bear responsibility for things that have gone wrong in this time that I was a sergeant at Oberon and I take full responsibility for several of the - two I should say, not several - two of the matters that were raised absolutely, and-- Q. Sorry, which ones do you say you take responsibility for? A. Well, I have agreed that, with explanation, I have agreed that now that I am familiar with the intricacies of the social media policy I understand that sending a closed group message, otherwise referred to as a post, is considered public even though it is not at all public. I understand that by definition under the policy as it is written by the police force that that is considered a breach. And –" (Emphasis added) 1. The second was as follows: [48] "Q. I put this to you, that by doing that you accept that you breached the personal use of social media policy? A. As I said earlier, at the time the way that was conveyed the short, the small group of people or the specified group of people I was discussing this matter with, at no time did I at all ever think that it would be defined as public. I still don't. Unfortunately the policy says otherwise. I, that is-- Q. Whether it's public or private-- TEDESCHI: I don't think she had finished her answer. DARAMS Q. Had you finished? A. And I was just simply going to end with, that is still something I think needs to be revisited, because to say something is public or not, sorry but to say something is public [by] definition means that it can be seen and read by members of the public or more people than intended. What and I maintain effectively I wrote, was something that was private and was shared amongst certain people that I felt comfortable to speak freely or in a relaxed way. Certainly something I would never do if I thought it would constitute something public or if it would be made public. I think when you send an email to someone you don't expect that email to be printed up and distributed publicly, but I guess it's a risk you take and it's a risk I took unfortunately. I didn't realise it at the time." (Emphasis added) 1. The third exchange was as follows: [49] "Q. I was asking you whether or not you believe it's appropriate whether it's in a private or a public message to call your superior in the New South Wales Police Force an asshole. Yes or no? A. I don't think a yes or no answer is fair or reasonably explains my position or thought on that." 1. Sgt Jackson admitted that the Facebook post was in breach of the Personal Use of Social Media Policy and Guidelines. Even had she not made that admission I would have found that it was. 2. What is equally apparent from the extracts above, however, is that Sgt Jackson is not at all remorseful or contrite for her conduct. She has not "taken responsibility" for her behaviour and it is difficult to discern a genuine acknowledgement of wrongdoing. The situation is better described as one in which she does no more than accept that she was, to her way of thinking, "caught on a technicality". 3. I find the allegation that Sgt Jackson breached relevant legislation, policy or procedures, including the Personal Use of Social Media Policy and Guidelines, by referring to her Duty Officer as an 'arsehole' on Facebook, and discussing operational policing matters on Facebook chats, to be sustained. LMI1503415 1. The allegations against Sgt Jackson arising from this LMI, and the facts on which they were based, were set out in the Notice as follows: "On 22 August 2015, you attended the victim's, [Ms H], workplace following a report of a domestic violence incident involving [Ms H] and her grandson, [Mr H], at her residence. You completed a Domestic Violence Evidence in Chief (DVEC) with [Ms H] where she indicated injuries to the right side of her jaw, which consisted of scratches that had bled. [Ms H] also disclosed malicious damage offences committed by [Mr H]. COPS event E58873976, created by you on 22 August 2015, states:- Police observed the PINOP to have a scratch, approximately two centimetres long, along the right side of her jaw. The scratch had bled. The PINOP was very distressed at the thought of the Defendant being charged and requested police not do that. The PINOP was told an urgent ADVO would be applied for at the very least which she understood. In the COPS event, under 'Fear held by police', you outlined 'Police are concerned by the Defendants violent actions and the fact that the PINOP is his elderly grandmother, which doesn't prevent him from acting violently towards her.' An urgent AVO was applied for and granted. It was served on [Mr H] at his home on 22 August 2015. You did not charge [Mr H]. On 24 August 2015, the Domestic Violence Liaison Officer (DVLO), Senior Constable Haertsch, sent a resubmit to you as follows: Hi Sgt, I understand the victim does not wish for any action, however particularly when injuries are identified and fit versions, the other party needs to be interviewed and the incident fully investigated. If the offence is identified we are obliged to take action. On 1 September 2015, you sent a resubmit reply to the DVLO as follows: Hi Jess, Thank you for checking this one. As always, with any DV incident we as investigators are guided by the Domestic Violence Policy, SOPS and Code of Practice. You are right in that when DV offences are detected action must be taken. I am well aware action (charging the POI), can be pursued against the wishes of the victim and have done so on several occasions. As per legislation, investigating police should 'give the strongest consideration to arrest.' Additionally, 'if sufficient evidence is present then charge with appropriate criminal offence and/or apply for a Provisional/Urgent AVO'. In this case I opted for the 'or' instead of the 'and' and applied for the urgent AVO, taking into account the following; the level of violence being on the lower end of the scale, the fact that this is the first ever recorded incident between the parties, the victim impact and the fact she was highly distressed at the thought of the POI being charged. Her distress was not due to fears for her safely which was clarified during DVEC. The POI was hostile towards police so obtaining a version let alone and [sic] interview was not going to happen. I am satisfied with this investigation and have also satisfied the obligations of the NSWPF when investigating DV offences. Your evidence On 9 November 2015, you were spoken to by the investigator and stated you did not charge [Mr H] as the victim was very distressed at the thought of [Mr H] being charged. You also stated that [Mr H] had no previous DV history and you believed you did not have to commence charges in the matter. Allegation 5 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the issue, that you failed to adequately investigate the alleged domestic violence incident reported to you on 22 August 2015 in relation to [Ms H] and [Mr H]. In particular, it is alleged that you failed to at least: • record sufficient details in your police notebook when the incident was first reported; and • create a charge in relation to [Mr H]. In the circumstances, there appear to be reasonable grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the NSW Police Force Handbook, and the NSW Police Force Code of Conduct and Ethics as set out above… Allegation 6 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the issue, that you failed to comply with operational procedures in relation to investigating claims of domestic violence. In the circumstances, there appear to be reasonable grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the NSW Police Force Handbook, and the NSW Police Force Code of Conduct and Ethics as set out above … and the Domestic and Family Violence SOPS. The Domestic and Family Violence SOPS relevantly state: Offence Detected The NSWPF enforces a pro investigation response to domestic and family violence, that is, the matter is to be thoroughly investigated using all means and evidence available and charges should be laid against offenders where evidence exists. …" (Sic, emphasis in original) 1. There is little that needs to be added to the narrative set out above. 2. It was not in dispute that the Domestic and Family Violence SOPS applied to Sgt Jackson. 3. Sgt Jackson confirmed that "there was sufficient evidence to proceed by way of charge" and that there was "certainly enough…to create or establish prima facie for that indictment". [50] 4. Sgt Jackson's response to the allegations essentially comes down to two contentions: 1. the victim did not want her grandson to be charged; and 2. documents that she read at the time suggested that she had a discretion as to whether to lay charges, apply for an AVO or both. This was demonstrated in the words "and/or" in the document she referred to in her response to the Domestic Violence Liaison Officer ("DVLO") on 1 September 2015, reproduced in the above extract from the Notice. 1. Sgt Jackson expressed the view that even if a crime had been established she had some discretion as to whether to investigate it or not, depending on the wishes of the victim. This seems to have been particularly the case in a smaller community such as Oberon. 2. In this regard, under cross-examination DS McDonald gave the following evidence: [51] "Q. Now do you agree that in a country town environment in 2015, based upon the conditions that existed then, not now, in relation to domestic violence incidents, that back in 2015 it was quite appropriate for a police officer in her situation to decide not to charge the person with an assault because of the reluctance of the victim to participate? A. No." 1. There is nothing in the Domestic and Family Violence SOPS which confers the discretion on Sgt Jackson as to whether to investigate a crime, or whether to lay charges where the necessary evidence exists. 2. Sgt Jackson's message to the DVLO of 1 September 2015 provides some corroboration for her evidence that she was referencing a particular document, as does the apparent absence of any response from the DVLO contradicting Sgt Jackson's approach. However, Sgt Jackson was not able to produce a copy of the documents to which she referred, or even identify them with any precision. 3. Importantly, there is no evidence to explain how any of the documents which Sgt Jackson claimed to have referred to would override or "trump" the Domestic and Family Violence SOPS, the NSW Police Force Handbook or the NSW Police Force Code of Conduct and Ethics. 4. Even if it is accepted that Sgt Jackson was led into error by the documents she referred to, her conduct still appears to be in breach of the Domestic and Family Violence SOPS. 5. On balance, I find that the allegations that Sgt Jackson breached relevant legislation, policy or procedures when she: 1. failed to adequately investigate the incident, including by failing to create a charge in relation to Mr H; and 2. failed to comply with operational procedures in relation to investigating claims of domestic violence, are sustained. 1. In her notebook, Sgt Jackson recorded the names and contact details for Ms H, Mr H and Ms H's daughter. The details of Ms H's injury are noted. The respondent has not explained why these details are insufficient in the circumstances, particularly where the evidence makes reference to a domestic violence evidence-in-chief, or DVEC, recording taken at the same time that Sgt Jackson interviewed Ms H. 2. I find that the allegation that Sgt Jackson did not record sufficient details in her notebook when the incident was first reported is not sustained. LMI1503417 1. The allegations against Sgt Jackson arising from this LMI, and the facts on which they were based, were set out in the Notice as follows: "On 15 August 2015, you arrested [Mr M5] for breach of AVO and malicious damage. At the time, [Mr M5] was on bail for similar offences and you did not charge him with breaching bail. [Mr M5] was released on unconditional bail. A subsequent review of the charge and event shows that [Mr M5] was on bail when the new offences were committed however he was never charged with breach of bail. [Mr M5] was on a s 9 bond for a domestic violence related stalk/intimidate and breach AVO. He had also previously contravened a domestic AVO on 11 April 2015. Sometime in August 2015, [Mrs M3] attended Oberon Police Station and requested that an AVO be taken out for her in relation to domestic violence matters. It is alleged you said 'Police are sick of taking out AVOs for parenting orders' and [Mrs M3] was asked to leave the Police Station. It is also alleged that [Mrs M3] informed you that there was ammunition at the address of the DV offender, however you replied by saying 'We would need to get a search warrant and we are not prepared to [do] that.' On 21 August 2015, [Mrs M3] attended Bathurst Police Station and enquired about the AVO. The station officer obtained a detailed statement from [Mrs M3], which contained a number of threats towards [Mrs M3]. An AVO was later applied for by police. On 11 November 2015, [Mrs M3] stated that she had attended Oberon Police Station to enquire about an AVO, however you were not interested in assisting her. [Mrs M3] states that you did not ask her any questions. [Mrs M3] further states that she felt like you 'Just brushed her off'. The alleged DV offender, [Mr L], handed a large amount of ammunition to Lithgow Police on 30 August 2015, after [Mrs M3] had spoken with you. On 21 August 2015, [Mr M4], who was wanted for an outstanding warrant, attended Oberon Police Station to hand himself in. He alleges you told him to go to Bathurst Police Station. [Mr M4] attended Bathurst Police Station on the same day and handed himself in. Upon arrest, he stated that he had tried to hand himself into Oberon Police Station but you told him 'it would be best to come to Bathurst.' On 11 November 2015, [Mr M4] stated that he attended Oberon Police Station to report and you informed him that he had a warrant. [Mr M4] says he informed you that he wanted to get the warrant sorted and you reportedly rolled your eyes, and said 'Can you go to Bathurst and get it done'. [Mr M4] stated that you were not interested in executing the warrant and wanted him to go to Bathurst. [Mr M4] stated that he was upset that he was not dealt with at Oberon, because he had to pay his friend money to drive him into Bathurst to be arrested. [Mr M4] stated that he would have been more than happy to have had the matter dealt with at Oberon. Your evidence You were spoken to on 11 November 2015 in relation to the incident involving [Mr M5]. Specifically, you were asked why you only charged [Mr M5] with breach AVO and malicious damage, and not breaching his bail. You stated that you simply did not see that [Mr M5] was on bail. You also stated that you were under a lot of pressure that night, as you were near the end of your shift and an Inspector wanted the car crew that was assisting you to return to Bathurst. You stated that if you saw that [Mr M5] had also breached his bail for similar offences that you would have charged him with breaching his bail, instead of placing him on unconditional bail. On 11 November 2015, you were interviewed in relation to the incident involving [Mrs M3]. You were asked if you recalled [Mrs M3] coming to the station to enquire about an AVO matter, to which you stated you recalled her coming to the station but could not recall the details of the conversation. You stated that you had provided advice to [Mrs M3] previously relating to AVOs and DV matters. You denied being rude to [Mrs M3], however, you staled that you were firm with her because she would not listen to the advice. You stated that if there were threats made against her you would have applied for an AVO. You were asked if [Mrs M3] informed you about any ammunition at the residence of the alleged DV offender. You stated that you recalled [Mrs M3] saying there was ammunition at the location, however police had already attended the location some time ago and no ammunition was located in the area described by [Mrs M3]. You were asked if you recorded the information about the DV offender possibly having access to ammunition at the premises in either an Event or Intel Report. You stated that you believed a report was on COPS previously, submitted by another officer. A check of COPS has failed to reveal any Intel or COPS report in relation to ammunition possibly being on the premises. You were asked lf you thought that it would be important for other police to have access to that information if they were attending the address, especially for DV related matter[s], and you agreed this would be important information. You stated you failed to check COPS to ensure there were any details about the information previously recorded. You were spoken to on 9 and 11 November 2015 in relation to the incident involving [Mr M4]. You say that [Mr M4] attended Oberon Police Station to report on bail and he informed you that he had a warrant. You stated that [Mr M4] wanted to get the warrant executed that day, as he did not want to be held in custody as he wanted to see his children the next day. As a result, you said you informed [Mr M4] that he could get the matter dealt with quicker at Bathurst, as they would be able to put him before the Court straight away, and if you executed the warrant there would be a delay waiting on staff from Bathurst to attend. You also stated that your station does not have CCTV, you would not have been able to search [Mr M4] as he is a male, and you do not arrest anyone as an Alpha Unit. You also stated that you thought [Mr M4] may have resisted you if you tried to arrest him and he also had a friend with him at the time. You stated that you did not arrest [Mr M4] due to Officer Safety reasons. You were asked a number of questions during the interview and in particular, were asked if you were wearing your appointments at the time, to which you said 'Yes'. You were asked if [Mr M4] was being aggressive or giving you any concern for your safety, to which you stated 'No'. You were asked if you ever told [Mr M4] that he was under arrest, and you said 'No'. You stated that [Mr M4] was compliant, and wanted to get the warrant executed. Allegation 3 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the issue, that you failed to adequately investigate a number of matters during August 2015. ln particular, it is alleged that you failed to at least: • create a charge against [Mr M5] in relation to his alleged breach of bail; • take adequate details from [Mrs M3] when she attended Oberon Police Station alleging domestic violence related matters against [Mr L]; • record any details in your police notebook about the matters reported to you by [Mrs M3], including the presence of ammunition at the premises; • take any steps to record details of the possible presence of ammunition at the premises of [Mr L]; and • arrest [Mr M4] when he presented at Oberon Police Station on 21 August 2015, despite him being wanted for an outstanding warrant. … Allegation 4 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you neglected your duty by failing to provide adequate customer service to [Mrs M3] and [Mr M4] when they individually attended Oberon Police Station in August 2015 in relation to the matters they reported to you." Mr M5 – failure to charge for breach of bail 1. Sgt Jackson gave evidence that on 15 August 2015 she had arrested Mr M5 following an incident during which he, allegedly while intoxicated, had begun smashing holes in the walls of a property. Sgt Jackson was accompanied by Snr Const Ashley Tucker and Const Glenn McDonald, who had been assigned to attend the incident following a request for assistance that Sgt Jackson had made to the Bathurst Supervisor. 2. Sgt Jackson claimed that when they arrived at the Oberon Police Station, Mr M5 "commenced having outbursts which included kicking and head butting the dock walls". [52] She said that she did not want to be alone with an unstable prisoner. However, as Sgt Jackson was processing the charge Insp Sammut called Snr Const Tucker at least four times asking how soon he and Const McDonald would be able to attend Bathurst. Sgt Jackson said she felt under increasing pressure to get the job done quickly. 3. In this context and feeling pressured, Sgt Jackson admits she made a mistake. 4. To explain Sgt Jackson's error, in short, Mr M5 was at the time on bail. One of his bail conditions was that he "comply strictly with any current AVO". [53] The bail conditions made reference to a particular person, and Sgt Jackson was aware that Mr M5 was subject to an AVO regarding that person. She was also aware that he was subject to a separate AVO in connection with his mother, which he had breached by his behaviour earlier that day. 5. Sgt Jackson claims not to have noticed the word "any" in the bail conditions. She assumed that they referred only to the AVO concerning the individual mentioned in the bail conditions themselves. While she charged Mr M5 with a breach of the AVO concerning his mother, she did not recognise that this was also a breach of the bail conditions. She did not charge Mr M5 with breaching his bail conditions. 6. Sgt Jackson admitted that this was an oversight on her part, but referred to the pressure she was under at the time. 7. Const McDonald's evidence was inconsistent with that of Sgt Jackson. He did not agree that Mr M5 had had "violent outbursts". A Custody Management Record attached to his statement answers "no" to questions as to whether Mr M5 demonstrated "aggressive behaviour" or showed "severe agitation or aggressiveness". The document states at several places that Mr M5 "appears to be in good health and spirits". 8. Const McDonald also disagreed with the number of times Insp Sammut called. He did not recall being under any pressure to leave. He further disputed Sgt Jackson's recollection that at the time he had been flustered and distracted by personal matters. 9. It is not in dispute that Sgt Jackson made an error. I am not convinced that it can be attributed to the circumstances which she describes. 10. I find that the allegation that Sgt Jackson breached relevant legislation, policy or procedures when she failed to charge Mr M5 relation to his alleged breach of bail to be sustained. Mrs M3 – domestic violence matters 1. Sgt Jackson deposed that Mrs M3 had attended Oberon Police Station on 14 or 15 August 2015. Initially Mrs M3 spoke with Mrs M6 (a police officer). Sgt Jackson, who could hear the conversation, joined it when Mrs M3 began to sound frustrated and raised her voice. Sgt Jackson stated that Mrs M3 "never once mentioned anything about threats being made to her by her son, or anything to do with ammunition, or anything that remotely alerted myself or [Mrs M6] to the need for an AVO application". [54] 2. It was on this basis that Sgt Jackson explained that no record was made of the conversation in her notebook – there was no cause to do so. 3. Sgt Jackson stated that when Mrs M3 attended Bathurst Police Station the following week, Mrs M3 provided Mr M11 (a police officer) with a fundamentally different version of events. This led to Mr M11 sending an email to Sgt Jackson asking her to follow the matter up. The email included the following comment: "[Mrs M3] cannot recall if she told the Police or not but she did mention that she spoke to you last week." 1. During cross-examination, Mr M11 gave the following evidence: "Q. Can I take you to attachment 1 to your statement. You see it's an email from yourself to Sergeant Jackson on 21 August 2015? A. Yes. Q. It says '[Mrs M3] came into the station today and complained of a DV matter involving her son' the name crossed out is [name]. 'She stated that she has concerns for her safety stemming from an incident on 1 August 2015 when he threatened to kill her'. Correct? A. Yes. Q. Now this was sent by you on the day that [Mrs M3] came into the Bathurst police station? A. I couldn't tell you if it was the same day or not but - oh today, yeah sorry, it was today, it was the same day. Q. And this - so [Mrs M3] was complaining about an incident that had occurred three weeks earlier, correct? A. Yes. Q. She'd waited three weeks before she came into the Bathurst police station-- A. Right. Q. --to report the matter, is that correct? That's what it appears, doesn't it? A. Yes. Q. Then you say in your email 'I searched COPS and found an occurrence only and child at risk created by [Mr M10]'. You knew [Mr M10] was at Oberon? A. Yes. Q. 'No DV incident or mention of threats. [Mrs M3] cannot recall if she told the police or not'. Right? A. Yes. Q. That's what it says doesn't it? So [Mrs M3] told you at the Bathurst police station that she couldn't recall if she had already told the police, that is the police at Oberon, about the DV incident or the mention of threats, right? A. Right. Q. But she did mention, she says - you then go on to say 'she did mention that she spoke to you about it last week'? A. Yes. Q. Now do you agree that because [Mrs M3] couldn't remember if she'd told the police or not about the DV incident or mention of threat, so that raised a real issue for you about whether or not she had reported the domestic violence incident and the threats at all before coming to Bathurst, correct? A. Yes. Q. So when you were looking at the records and found that there was no mention in the police records about a domestic violence incident, did you contact Sergeant Jackson, or [Mrs M6], or [Mr M10] at Oberon to find out what [Mrs M3] had told the Oberon police? A. No I - I referred it back to Sergeant Jackson because I knew it needed to be followed up, further investigation needed to be conducted because there were inconsistencies with what [Mrs M3] was telling us and what has been recorded on our COPS system. Q. And one day later I suggest to you you lodged a complaint against Sergeant Jackson for failing to record details of the domestic violence incident, didn't you? A. Well as I said she came in and spoke to me, [Mrs M3], and she's mentioned to me that she'd spoken to Sergeant Jackson and wasn't happy with the response. Q. She told you that she wasn't sure, that she couldn't recall if she told the police or not didn't she? A. Yeah. Q. And yet a day later you've gone and lodged a complaint against Sergeant Jackson for failing to follow up on the AVO request by [Mrs M3], haven't you? A. I guess so, if that's when the complaint was made." 1. The respondent attempted to have Mrs M3 attend the proceedings as a witness but was unable to secure her cooperation. It did not call evidence from Mrs M6. 2. DCI Spliet gave evidence that he spoke to Mrs M3 on 11 November 2015, three months after the relevant events, and that she "sounded very upset". [55] The only evidence of that conversation is a handwritten note that he made in his diary. 3. On the available evidence, I feel compelled to accept Sgt Jackson's version of events. DS McDonald conceded under cross-examination that if that version was accepted, there was no basis for any action to be taken by Sgt Jackson as a result of her conversation with Mrs M3 on 14 or 15 August 2015. 4. I find that the allegations that Sgt Jackson: 1. breached relevant legislation, policy or procedures when she: 1. failed to take adequate details from [Mrs M3] when she attended Oberon Police Station alleging domestic violence related matters against [Mr L]; 2. failed to record any details in her police notebook about the matters reported to her by [Mrs M3], including the presence of ammunition at the premises; 3. failed to take any steps to record details of the possible presence of ammunition at the premises of [Mr L]; and 1. neglected her duty by failing to provide adequate customer service to [Mrs M3], are not sustained. Mr M4 – failure to effect arrest 1. Sgt Jackson's explanation for these events is that on 21 August 2015 Mr M4 attended Oberon Police Station, in the company of a male friend, as he had been told that he had a warrant. He wanted to get the matter sorted quickly as he had made arrangements to see his children the following day after a lengthy period of having had no access to them. Sgt Jackson explained that as the Oberon Courthouse was not open that day he would be placed into custody and an officer called to transport him to Bathurst. As she could not guarantee that the matter would be resolved that day, and facing the prospect of being incarcerated overnight, Mr M4 became anxious and agitated. 2. In the Jackson Statement, Sgt Jackson stated as follows: "198. …[Mr M4] and his friend discussed what they were going to do. I heard [Mr M4] say, 'I'll just do it on Monday at Bathurst.' I heard his friend say, 'By the time the coppers from Bathurst get here, we could be there.' [Mr M4]'s friend turned to the door and [Mr M4] turned in a way that made me believe he was going to leave. I said to him, 'Mate, you can't walk out.' [Mr M4] turned and said, 'What, are you gonna fuckin stop us?' He was aggressive but laughed at me like he knew I was no match for him and his friend. I said, 'No mate, I'm not getting into a wrestle with you over this.' [Mr M4] and his friend walked out. 199. Relying on, at that time fifteen years of policing experience, I knew this situation was one where I was out of my depth. I recognised the dangerous situation I was in and the probability for something to go wrong. I was by myself, I had no back up, no CCTV cameras, no body worn video camera, and no capability to call for urgent assistance as the portable radios were highly unreliable as they rarely worked. I recall being in a very alert state and having a physical reaction to the increased adrenalin in my system. I knew I had the option not to engage [Mr M4], and I chose my personal safety over putting myself at likely risk of harm, to make this arrest. There is no policy or guideline in the NSW Police Force that states police must place themselves in danger in order to arrest wanted persons. Police are however, expected to risk assess situations such as this and act accordingly with appropriate resources. That is what I did." 1. In the circumstances described by Sgt Jackson, it is difficult to discern what more she could have done. Mr M11 suggested that she should have effected the arrest and waited for back-up to arrive from Bathurst. However, that is precisely what Sgt Jackson said she she proposed to Mr M4, which had led to the situation becoming confrontational. Seeking to effect the arrest could have placed Sgt Jackson in the danger she was trying to avoid. 2. During cross-examination, DS McDonald gave the following evidence: "Q. Again accepting her version of events she says that she was faced with a man who was aggressive, whom she said that he shouldn't leave but he insisted on leaving. Accepting her version? A. Accepting her version. Q. And he had a male friend with him and she was on her own in the police station. Accepting her version? A. Accepting her version, yes. Q. She says that there's no CCTV and no distress alarm at that police station? A. Well I'm not sure of the duress alarm but there's no CCTV, that's correct. Q. Accepting her version of events do you agree that she had a discretion whether or not to arrest the man by force at that time? A. If force was necessary, accepting her version, yes." 1. The difficulty this evidence creates for the respondent is that there is little evidence of the relevant events before the Commission other than that of Sgt Jackson. The highest point in the respondent's evidence is a diary note of a conversation that DCI Spliet said he had with Mr M4, a summary of which is set out in the extract of the Notice reproduced at [257] above. 2. The Notice also suggests that when she was interviewed about the allegation Sgt Jackson claims to have informed Mr M4 that he could get the matter dealt with more quickly at Bathurst, as they would be able to put him before the Court straight away, and that if she executed the warrant there would be a delay waiting on staff from Bathurst to attend. This would suggest that she might have been advising Mr M4 to go to Bathurst. However, there is no direct evidence of the conversation in which Sgt Jackson is said to have provided this description of events. 3. The balance of evidence favours Sgt Jackson. 4. I find that the allegations that Sgt Jackson: 1. breached relevant legislation, policy or procedures when she failed to arrest Mr M4 when he presented at Oberon Police Station on 21 August 2015, despite him being wanted for an outstanding warrant; and 2. neglected her duty by failing to provide adequate customer service to Mr M4, are not sustained. LMI1504544 1. The allegations against Sgt Jackson arising from this LMI, and the facts on which they were based, were set out in the Notice as follows: "On 5 March 2013, you attended [a business in Oberon] and took a report of a stolen Fender guitar from the victim, [Mr M1]. It is alleged that despite the report being made to you by [Mr M1] at that time, you failed to investigate the alleged theft. A review of your notebook (F532802) records that at 2.30pm on 5 March 2013, you attended [a business in Oberon] regarding a stealing. You recorded the name of the victim and the names of three young persons. ln the margin of the notebook you wrote 'Record only'. There is no reference to any event number. On 12 November 2015, the victim contacted Oberon Police Station and spoke to [Mrs M6] in relation to information he had regarding the whereabouts of his stolen guitar. The victim asserted that he reported the incident to you on 5 March 2013 and at the time, nominated the suspected offenders, providing details of how he came by the Information. Following information provided to [Mrs M6] by the victim as to the suspected whereabout [sic] of his Fender guitar, [Mrs M6] returned to Oberon Police Station to check the system for the original event and could not locate any reference of the original incident on COPS. [Mrs M6] says there is no record of a break and enter at the location, no record of a report during that time from the victim, [Mr M1], and nothing about a Fender guitar being stolen anywhere in the system. An Event was created by [Mrs M6] for the theft that occurred on 5 March 2013 in COPS on 12 November 2015, Event number E114853201 relates. On 2 December 2015, Inspector Spliet spoke to the victim, who indicated he had reported the matter to you and said he had informed you who he believed had stolen his property. Evidence of [Mr M1] In his statement dated 27 November 2015, [Mr M1], the victim, says that after realising that his Fender guitar was missing from the shed, where the equipment for the band in which he played was stored, he called Oberon Police Station and spoke to you. He says you came to the shop and spoke about the alleged theft. He recalls you were writing things in your notebook. He says that when the guitar was not returned a few days later, he 'decided to put the heartache' behind him. … Your evidence In your written response to directive memorandum, dated 17 August 2016, you say that you did attend the business and spoke to the victim as alleged however, he was reluctant to have the matter investigated and did not want the issue to result in an adverse record being registered against any of the young persons involved. You say you spoke to one of the suspects and spoke to the victim after speaking with one of the young persons. You say that the victim again stated he did not want the names of the young persons recorded on the system and allegedly wanted to 'hold off having the report recorded.' You say that genuine attempts were made to investigate and maintain records and that this is evidenced by your notebook entry. You say that if you had no intention of investigating this matter you would never have recorded anything about it in your notebook in the first place. You say that 'it cannot be understated that [you were] guided by [the victim's] wishes.' You also say that you never became aware of exactly what timeframe had elapsed between the break and enter at the shop and the day you spoke to the victim. You say that you are now aware, through the COPS event narrative that the victim has reported that the break, enter and steal occurred in 'winter 2012'. You say this means that a period of approximately eight months had passed before the victim initially contacted police. You say 'this in itself demonstrates his level of commitment to have the matter reported.' … You also say that you stand by your actions and you walked away from that job 'believing [you] had done everything asked and expected of [you] by [Mr M1].' Allegation 2 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the issue, that you failed to adequately investigate the alleged break, enter and steal offence reported to you by [Mr M1] on 5 March 2013. In particular, it is alleged that you failed to at least: • record sufficient details in your police notebook when the incident was first reported, including the names of the suspected offenders or the information told to you by [Mr M1]; • create a COPS event in relation to the alleged break, enter and steal; • obtain a formal statement from [Mr M1]; • take any steps to identify the offenders or the whereabouts of the Fender guitar; or • keep [Mr M1] updated as to the progress or otherwise of the investigation." 1. Sgt Jackson gave evidence that when Mr M1 informed her of the theft of the guitar, he explained that he was aware that the culprit was likely a child and he did not want to get them into trouble. She says that he told her that he wanted to keep the matter "off the record". For this reason, he refused to provide her with a statement, even when Sgt Jackson on a later occasion encouraged him to do so and left her card with him. In accordance with what she says were Mr M1's wishes, Sgt Jackson did not create a COPS event. 2. Mr M1 provided Sgt Jackson with the names of the three suspects. She said that she went to the house of one of them and subsequently spoke to him at the Oberon Police Station. She further stated that she reported these actions to Mr M1 who was satisfied with what had been done. Sgt Jackson asserted that there was no "investigation" of which to keep Mr M1 appraised. She asserted that the failure of Mr M1 to follow the matter up supports there being no ongoing investigation. 3. Sgt Jackson made notes of the conversation in her police notebook. She wrote "Record Only" in the margin, which she said demonstrated that the matter did not require investigation. 4. Former Sergeant 1 gave evidence that if a person refused to provide a statement it should be recorded in the officer's police notebook, or at least a record on "CAD". There was no such notation in the entry made by Sgt Jackson during her meeting with Mr M1 or any entry on CAD. 5. Sgt Jackson admitted in her Response that "a COPS Event is the expected action when such matters are reported, and [she] did not create one". [56] She said that she allowed Mr M1 "to dictate how this matter was to be handled". [57] She attributed this to the "more personalised service" called for by country policing. [58] 6. Mr M1 gave evidence that in 2012 he had become aware that certain "kids" may have been accessing a shed in which he kept, amongst other things, musical equipment, including a Fender guitar. He took steps to stop this. Several months later he discovered that the guitar was missing. He spoke to the parents of two of the children who had previously accessed the shed but was unable to secure the return of the guitar. 7. In his statement, Mr M1 said: "6. Prior to reporting the matter to police, l gave the kid who I had suspected had taken the guitar an opportunity to give it back. When this didn't happen I called Oberon Police Station because I wanted police involvement. 7. The whole point of contacting the police station and speaking with Sergeant Jackson about the matter was because I wanted further action to be taken. I was under the impression that Sergeant Jackson would investigate it and it would be followed up. Thought do not recall what was said during my discussion with Sergeant Jackson, I would have said something to the effect that 'I didn't want the kids thrown in jail'. I just wanted my guitar back. I deny that my saying that I didn't want to kids to be thrown in jail meant that I didn't want the matter investigated by police. … 9. …I do not recall Sergeant Jackson ever asking me for a statement and I do not recall her ever leaving me with a card with the details of police. I also deny that I knew there would be no investigation, as stated above, I expected that the matter would be investigated." 1. Mr M1 stated that he made further, unsuccessful direct approaches to those he considered responsible for or complicit in the theft. At that point he decided not to take any further action himself. However, through a series of events in November 2015 he was eventually able to locate the guitar. He subsequently attended the Oberon Police Station and spoke to Mrs M6. It was then that he was told that there was no report of the theft on the computer system. 2. In all of the circumstances I do not consider that the matter was properly investigated by Sgt Jackson. I cannot be satisfied that Mr M1 requested that she undertake no investigation and keep no records of that investigation. I do not accept that he refused to provide her with a statement or other relevant information. There is no documentary record of these matters or of the action which Sgt Jackson claims to have taken. 3. Under cross-examination Sgt Jackson stated: [59] "I think I've recorded in my response that I was far too, I relied far too much on allowing [Mr M1] to dictate to me how this would be handled. I should have handled this better and differently. I agree with that." 1. That said, there does not seem to be a basis to properly allege that Sgt Jackson failed to "record sufficient details in [her] police notebook when the incident was first reported, including the names of the suspected offenders or the information told to [her] by [Mr M1]". The notebook entry quite clearly contains the names of the suspected offenders and other information. The respondent has not explained what further information it would have expected to be in the notebook. 2. Similarly, it is difficult to conclude that Sgt Jackson failed to take any steps in the matter. The likely offenders had already been identified. She approached one of them, albeit nothing appears to have come of that and no further steps appear to have been taken by Sgt Jackson. 3. I find that the allegations that Sgt Jackson: 1. failed to record sufficient details in her police notebook when the incident was first reported; and 2. failed to take any steps to identify the offenders or the whereabouts of the Fender guitar, are not sustained. 1. I find that the allegations that Sgt Jackson breached relevant legislation, policy or procedures when she failed to adequately investigate the alleged break, enter and steal offence reported to her by Mr M1 on 5 March 2013 including by: 1. failing to create a COPS event in relation to the alleged break, enter and steal; 2. failing to take appropriate steps to obtain a formal statement from Mr M1; and 3. failing to keep Mr M1 updated as to the progress or otherwise of the investigation, are sustained. LMI1600639 1. The allegations against Sgt Jackson arising from this LMI, and the facts on which they were based, were set out in the Notice as follows: "On 8 November 2013, you took a report of an alleged [eBay] fraud from [Mr M2] at Oberon. It was alleged that [Mr M2] paid $700 into a particular bank account to pay for an Apple iPhone 5 offered for sale through an [eBay] website. The seller never forwarded the item and could not be contacted by the victim. The matter was reported on COPS and you created Event number E52036160 on 8 November 2013. On 21 November 2013, you recorded in the event that you had made enquiries on WebCOPS in relation to the POI. Case C54003867 was created and allocated to you. On 29 November 2013, a narrative was added to the event that indicated you had conducted COPS checks on the person named on the fraud. You also added a case file item. On 14 December 2013, you self initiated case number C54003867. On 18 December 2013, Senior Constable Martin reallocated the case to Senior Constable Joe Fitzgerald. On 3 February 2014, the case was again allocated to you. The case shows that two actions were added, the first on 27 April 2014 and then on 30 June 2014, which indicated that you were attempting to obtain case file items that were apparently given to Senior Constable Fitzgerald when the case was allocated to him. There are no other narratives or actions in the case until an intervention by [Mr M13] on 19 December 2014, when he sat with you and reviewed this matter. In your meeting with [Mr M13] on 19 December 2014, you said you were 'simply not motivated to do anything about the outstanding work allocated to [you].' [Mr M13] assisted you in the submission of i@sk and the completion of an application for a Notice to Produce to be served on the bank. You completed these tasks under the guidance of [Mr M13] who also provided you with a clear plan of action to progress the investigation to an appropriate outcome. The case indicates that nothing was added until over six months later, when on 30 June 2015, a narrative was added by you indicating that an i@sk result had been received. An action was then added on 31 July 2015 stating 'i@sk results received along with bank documents.' There are no other actions listed on the case until 3 December 2015, when you indicated that you were to meet with the Investigations Manager as to further direction of the matter. It appears the matter was reallocated to Detective Senior Constable Smyth in early 2016 before you reallocated it to yourself on 27 April 2016, and it was cleared as 'Investigation Complete' on 6 May 2016. This action was not verified by the Investigations Manager as it appears you submitted the case under a supervisory profile that did not submit the case to the Command Work Confirmation. It would appear from the narrative added on 6 May 2016 that the matter was forwarded to Victoria Police for further attention. Evidence of [Mr M13] In a report dated 4 February 2016, [Mr M13] says that he met with you on 19 December 2014. He says that he attended the Oberon Police Station, for an unrelated reason, but while there, was aware from case reports that you had certain cases that required action. … He says that he left Oberon Police Station that day having provided you with a 'clear plan of action' in respect of this case and your other outstanding work. [Mr M13] says that the fraud case 'is very simple'. He further says that he 'would expect a Constable with one or two years experience would be more than adequately equipped to investigate such a matter...' He says that on 3 February 2016, he received the outstanding case report for the Chifley LAC from the Investigations Manager and was 'appalled' to see this case was still outstanding. Your evidence In your response to directive memorandum dated 29 September 2016, you outlined how you took the report of the fraud from [Mr M2] at the front counter of Oberon Police Station and that [Mr M2] told you that about four months earlier he had purchased a mobile phone on eBay, depositing the money directly into the seller's account but had since not received the properly. You said that you recalled explaining to [Mr M2] that the function of police was not to recoup money but to take action against people who are identified as having committed offence/s. You say you told [Mr M2] that if an offender was identified and charged, police were then able to request compensation for him through the Court. You say you remember specifically saying this to [Mr M2] as you did not want him to have expectations that police would get his money back. You said that to commence the investigation you took out your police notebook and recorded the information as you and [Mr M2] spoke. You said that later that shift, you created a WebCOPS event, E52036160. You said that a few weeks later you commenced profiling the nominated POI, locating two CNI numbers for persons with the same name in NSW and Victoria. You said that once the WebCOPS event had been verified, you self-initiated a case, C54003867, due to the further investigation required. You said that during a conversation you previously had with Inspector Sammut, you had discussed with him your workload. In particular the number of cases you were carrying. You said that Inspector Sammut later looked at your 'workoff' and contacted you by phone. You said that Inspector Sammut told you that he thought you had excessive cases for a team leader, particularly in comparison to other team leaders and your own team members. You said that soon after this discussion, Inspector Cogdell, Oberon Sector Duty Officer, told you to start reallocating work, and that this fraud matter was allocated to Senior Constable Fitzgerald. You said that within a week of making the event into a case, the matter was transferred to Senior Constable Fitzgerald and you handed him the yellow brief envelope containing the only copy of the eBay message received from [Mr M2]. You said that Senior Constable Fitzgerald was 'angered' at having to take on what he perceived to be your work. You said that whilst he was the Officer in Charge (OIC), he conducted no further investigation to progress this case. You said that Senior Constable Fitzgerald was temporarily placed on loan to Blayney Sector and without conversing with you, transferred the case back to Oberon. You said you asked Senior Constable Fitzgerald for the yellow envelope several times, with each time being told he would get it to you. You said you then emailed the Blayney Sector Supervisor, Sergeant Hutchings, asking for his help. You said that sometime thereafter, you ran into Senior Constable Fitzgerald while at Bathurst Police Station and that he had informed you that he handed the envelope to Senior Constable Beattie to forward to you. You said you needed the case files contained within the envelope as they were the only copy of the original files. You said that about eight months after it went missing, you found the envelope when you were cleaning up Rockley Police Station. You said that once you got the envelope back you continued with the investigation, including speaking with [Mr M13]. You said that [Mr M13] was at Oberon Police Station for an unrelated matter however, he later asked if there was anything he could assist you with. You said that you took this opportunity to seek his expertise on a number of different things, including this case. You said you had never investigated an online fraud before. You said he assisted you in creating the Notice to Produce document for the bank account records of the person of interest. You also said that once the Notice to Produce was sworn, you handed it to the local branch of the National Australia Bank. You said you also applied for two iAsk's. In your response to the directive memorandum, you claimed you made a number of enquiries regarding the POI and his whereabouts including liaising with police from Coffs Harbour. There is no evidence of these or any other enquiries recorded in the case. You maintain that you addressed this investigation appropriately and adequately. You provided emails with your response. Of note, on 20 July 2014, the victim sent an email to Senior Constable Fitzgerald enquiring about the progress of the matter. Considering the case was returned to you on 3 February 2014, there was a period of five and a half months where you did not contact the victim to inform him you were again in charge of the investigation. Effectively from the time the case was reallocated to you on 3 February 2014, no meaningful actions were added or enquiries conducted until [Mr M13] enquired as to the status of your current cases and offered you assistance on 19 December 2014. Following this assistance, again no meaningful actions are shown in the case. You indicated you took leave around this time. Detective Smyth added a narrative indicating that the case file was requested from Oberon on 29 February 2016 so that the I@sk results could be examined, The victim was also contacted and updated. You said that of the three individual OIC's who took carriage of this matter at separate times, you are the only one who conducted investigative work that saw progression of this case. You said that all avenues of investigation had been followed during the times you were OIC. … Allegation 1 There appear to be reasonable grounds on which I could conclude, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to adequately investigate the alleged fraud offence reported to you by [Mr M2] on 8 May 2013. In particular, it is alleged that you failed to at least: • obtain a formal statement from [Mr M2]; or • update the narrative or actions in the case between 30 June 2014 and 19 December 2014, and between 20 December 2014 and 30 June 2015. An action was then added on 31 July 2015, and there are no other actions listed on the case until 3 December 2015. In the circumstances, there appear to be reasonable grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the NSW Police Force Handbook, and the NSW Police Force Code of Conduct and Ethics." (Sic, emphasis in original) 1. As with previous instances, the evidence in these proceedings is largely consistent with the outline in the Notice so I will not traverse it at length. 2. I do not consider that Sgt Jackson can properly be said to have failed to obtain a formal statement from Mr M2. In his own evidence Mr M2 stated that Sgt Jackson told him on 8 November 2013 he would need to provide a statement. Despite being followed up on numerous occasions, including by Sgt Jackson, he did not attend a police station to provide a statement until 2017. I do not see how Sgt Jackson can bear accountability for that delay. That allegation cannot be sustained. 3. There is no question that Sgt Jackson took steps which ultimately progressed the investigation. In the weeks following her meeting with Mr M2, Sgt Jackson sent several emails to him reporting on progress. Mr M13 accepted that she had followed through with the matters he had discussed with her on 19 December 2014. 4. The issue with the investigation seems to have been the time taken to progress it. To some extent the delay can be explained by Mr M2's failure to provide a statement. However, emails adduced by Mr M2 suggest that as at July 2014 responsibility for the investigation had passed back to Sgt Jackson from Snr Const McDonald. The next communication to Mr M2, from Sgt Jackson, was in August 2016. Other than the pressing workload she asserted she had, Sgt Jackson has offered no explanation for this delay. 5. Having spoken to Mr M13 about this matter on 19 December 2014, and having had his expectations laid out, this delay is difficult to explain or justify. 6. I find that the allegations that Sgt Jackson breached relevant legislation, policy or procedures when she failed to adequately investigate the alleged fraud offence reported to her by Mr M2 on 8 May 2013, including by failing to appropriately update the narrative or actions in the case, are sustained. Overarching allegation 1. The Notice contained one final allegation in these terms: "Allegation 9 There appear to be reasonable grounds on which I could conclude…that you have failed, over a lengthy period, to meet the expected standards of performance and competence of a sworn police officer, contrary to your Job Stream Responsibilities as a Sergeant and Sector Supervisor." 1. This allegation does not appear to have been directly addressed by Sgt Jackson in either the Response or in her evidence in these proceedings. In the Order, DS McDonald found the allegation to be sustained. 2. In his closing submissions, Mr Darams described the allegation in these terms: [60] "Overarching allegation. Yeah, it's an overarching allegation. I'll come right to it, the crux of the order is a reduction in rank from a sergeant to senior constable, and that's because it's been determined, individually, one or more of these matters might be minor or might have been dealt with, but it's the pattern and that's set out in the order, it's the pattern of failure to comply with fundamental basic policing duties. That's what it is." 1. It appears to me that there is a clear overlap between "allegation 9" and the consideration of an appropriate penalty to be imposed in light of the findings made against Sgt Jackson. Particularly, whether any sustained misconduct warrants a reduction in Sgt Jackson's rank. 2. I do not consider it necessary to make a separate finding in relation to allegation 9, as the same issues will come to be determined in the context of deciding the appropriate remedial action dealt with below. Summary of findings 1. For convenience I summarise below those allegations against Sgt Jackson which I have found to be sustained. 2. I find that Sgt Jackson breached relevant legislation, policy or procedures when she: 1. failed to record sufficient details in her police notebook in relation to the alleged theft at Mawhoods IGA in Oberon, including the enquiries she claimed to have made; 2. failed to record sufficient details in her police notebook in relation to the alleged fraud at the Royal Hotel at Oberon; 3. failed to create a record in EFIMS or COPS in relation to the items seized on 18 August 2014; 4. failed to create a record in EFIMS or COPS in relation to the two cigarette butts seized on 11November 2014; 5. referred to her Duty Officer as an 'arsehole' on Facebook, and discussed operational policing matters on Facebook chats; 6. failed to adequately investigate the incident, including by failing to create a charge in relation to Mr H; 7. failed to comply with operational procedures in relation to investigating claims of domestic violence in respect of the incident involving Mr H; 8. failed to charge Mr M5 relation to his alleged breach of bail; 9. failed to adequately investigate the alleged break, enter and steal offence reported to her by Mr M1 on 5 March 2013 including by: 1. failing to create a COPS event in relation to the alleged break, enter and steal; 2. failing to take appropriate steps to obtain a formal statement from Mr M1; and 3. failing to keep Mr M1 updated as to the progress or otherwise of the investigation; and 1. failed to adequately investigate the alleged fraud offence reported to her by Mr M2 on 8 May 2013, including by failing to appropriately update the narrative or actions in the case. Conclusions 1. Having determined the allegations against Sgt Jackson which can be sustained, the question is whether they amount to "misconduct". It is only if an officer has engaged in misconduct that the respondent can take action under s 173(2) of the Police Act to reduce their rank. 2. In Allison v Commissioner of Police [2018] NSWIRComm 1005, Seymour C considered the proper approach for the Commission to take in assessing allegations of misconduct against police officers as follows: "[150] It was submitted by Mr Chin that the proper approach for the Commission to take is to consider each incident or matter not in isolation, but as part of a pattern of conduct that caused the Commissioner of Police to lose trust and confidence in Mr Allison as a police officer. I agree. In determining whether a police officer has justifiably lost the trust and confidence of the Commissioner of Police, any other approach would be contrary to common sense. An employment relationship should be viewed in a holistic manner, not artificially dissected into separate incidents examined in isolation from each other and the overall context in which they occur." 1. While Allison involved an application under s 181D of the Police Act, I regard the comments as apposite in determining whether Sgt Jackson ought to be reduced in rank as a result of the sustained allegations. 2. I consider that the findings referred to at [312(5), (6), (7) and (9)] above amount to misconduct. In each case Sgt Jackson deliberately took a certain approach, which was inconsistent with the legislative and other obligations that she admitted applied to her. 3. The remaining sustained allegations do not, to my mind, demonstrate misconduct. They are more errors and omissions than conduct intentionally taken, and so fall more under the category of poor performance. In this context I note that the Notice refers in its opening paragraphs to Sgt Jackson's "alleged incompetence and misconduct". The matters referred to at [312(1), (2), (3), (4), (8) and (10)] might well go to Sgt Jackson's competence, but are not instances of misconduct. 4. As I have found that Sgt Jackson engaged in misconduct, it was open to the respondent to take action under s 173(2) of the Police Act. The Order was not beyond power on this basis. I do not consider that the Order was beyond power on any other basis. 5. Turning to whether the Order is harsh, unreasonable or unjust I have regard to Corrective Services NSW v Danwer, referred to at [82] above. 6. I have addressed the issue of procedural fairness at [114] – [137] above. The Order cannot be impugned on that basis. 7. The Order makes a number of findings in relation to alleged misconduct that I have found cannot be sustained. To the extent that the Order relied on or was based on those allegations it was unjust or unreasonable or both. 8. That leaves the question of harshness. Sgt Jackson has been a Sergeant since May 2012, a period of more than seven years. A demotion to Senior Constable would have significant effects on her standing and reputation in the NSW Police Force. She would also suffer a reduction in earnings. 9. I have taken into account the possibility that Sgt Jackson has lost, or could lose, the benefits of the sergeant's accommodation in Oberon. This was, or would be, the consequence of the non-reviewable transfer, rather than of the Order. It is relevant in the context of the ramifications that these matters might already have had on Sgt Jackson, and I take it into account to that extent only. 10. Against these considerations I have regard to the matters dealt with at [163] – [188] above. In this context, I have considered the submissions made on behalf of Sgt Jackson to the effect that she "very readily admitted right from the beginning that there were some shortcomings in relation to her actions". [61] These submissions need to be approached with caution. 11. At [237] – [241] above I explored the extent to which Sgt Jackson had indeed, as she asserted, accepted responsibility in relation to her Facebook post in July 2015. Any other "admission" by Sgt Jackson is similarly qualified. 12. Sgt Jackson admitted that she failed to enter the cigarette butts into EFIMS, but attributed this oversight to her being unwell on 11 November 2014. The language she adopted in the Jackson Statement is indicative of her attitude: "316. Looking back, it does not surprise me that I made this error, albeit minor. The circumstances under which I made this genuine mistake could happen to any other officer operating in the same situation and under the same pressure of work and illness." (Emphasis added) 1. Sgt Jackson admitted that there was a delay in closing off COPS for the theft at the IGA Mawhoods, but this was attributed to the conditions under which she said she was working at the time. 2. Sgt Jackson admitted having made an error in failing to charge Mr M5 for breach of bail, but attributed that to the circumstances she alleged were prevailing at the time, including Mr M5 being aggressive and her feeling under pressure to finish so that the accompanying officers could return to Bathurst. Leaving aside that Sgt Jackson has not satisfied me that the circumstances were as she described, this was another attempt to deflect responsibility. 3. Sgt Jackson admitted that she should have created a COPS event in respect of the theft of Mr M1's guitar, but attributed her failure to do so to acceding to Mr M1's requests that she not do so and the particular demands of "country policing". 4. Sgt Jackson admitted that it took too long for the alleged eBay fraud involving Mr M1 to get to the correct jurisdiction, but said that Mr M13 "should have been aware of her workload" at the relevant times. [62] 5. Overall, I can only reiterate the comments made above at [188]. Sgt Jackson presented as someone who is far from contrite or remorseful for her behaviour. Rather than "readily admitting" to errors or shortcomings she seemed unable or unwilling to accept any fault, other than begrudgingly and in a qualified way. 6. Sgt Jackson's lack of insight, judgment, contrition and acceptance of responsibility are particularly relevant when having regard, as I am required to do, to Sgt Jackson's interests and the public interest. 7. I have taken into account the absence of any evidence of concerns with the performance by Sgt Jackson of her duties since the LMIs were first raised with her. 8. Overall, and very much on balance, I consider that the Order was harsh when regard is had to those allegations which I have found could not be sustained. At the same time, it is appropriate that Sgt Jackson be properly held to account for her misconduct. I consider that an indefinite reduction in rank would be disproportionate to the misconduct which I have found to be sustained. 9. Having regard to the totality of my findings in this matter, I consider it appropriate that the Order be revoked and that in its place Sgt Jackson be reduced in rank to that of a Senior Constable Level 6 for two years. 10. As stated above, Sgt Jackson seeks a determination from the Commission that the Order be revoked and "that Sergeant Jackson be reinstated to the Oberon Sector". It was submitted that the language of s 177(1)(b) of the Police Act – "making such other order as [the Commission] considers appropriate" – empowers the Commission to make a reinstatement order. 11. Having regard to the principles of statutory construction set out in, for example, Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No. IHOOAAQS v Cross (2012) 293 ALR 412, in my view the better construction of s 177(1) is that it allows for an order to be revoked and some alternative form of corrective order to be made. I do not see it as enabling remedial orders to an applicant who successfully applies to have an order revoked. 12. Further, having regard to the discussion at [88] – [103] above, I have some sympathy for the respondent's submission that any reinstatement order would result in "non-reviewable action" becoming "reviewable action". 13. It is not necessary to finally determine these questions. A reinstatement order would be inconsistent with the order I propose to make. Orders 1. Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) I order that there be no disclosure of the name or any other material that identifies, or may lead to the identification of, any of the people in the list attached to the email from Maddocks Lawyers to the Office of the Industrial Registrar dated 11 April 2019. 2. The order made by the Commissioner of Police on 8 October 2018 under s 173(2)(a) of the Police Act 1990 (NSW) reducing Sergeant Shelley Jackson from her current rank to that of Senior Constable Level 6 is revoked. 3. Pursuant to s 177(1) (b) of the Police Act 1990 (NSW) I order that Sergeant Shelley Jackson be reduced in rank from Sergeant to Senior Constable Level 6 for a period of two years, commencing from the date of this decision, and thereafter be restored to the rank she held immediately prior to this decision. Damian Sloan Commissioner ********** Endnotes 1. Tcpt 29 March 2019, pp 83 (48) – 84 (40) 2. Spliet Statement at [12] 3. Jackson Statement at [108] 4. Jackson Statement at [397] 5. Powell Statement at [13] 6. Spliet Statement at [7] 7. Jackson Statement, Attachment 36 8. Jackson Affidavit, Annexure "J" 9. Applicant's Submissions, p 25 10. Tcpt 29 March 2019, p 52 (11-19) 11. Tcpt 29 March 2019, pp 61 (49) – 62 (6) 12. Tcpt 27 March 2019, p 96 (16-18) 13. Jackson Statement at [440] 14. Cogdell Statement at [68] 15. Tcpt, 29 March 2019 p 41 (9-14) 16. Tcpt, 29 March 2019, p 42 (18-31) 17. Tcpt, 29 March 2019, p 71 (5-32) 18. Applicant's Submissions at [33] 19. Tcpt 26 March 2019, pp 13(5) – 14(44) 20. Tcpt 29 March 2019, p 85 (7-17) 21. Jackson Affidavit at [7] 22. Cogdell Statement at [41] 23. Tcpt 27 March 2019, p 15 (13-17) 24. Tcpt 27 March 2019, p 24 (7) 25. Jackson Statement, Attachment 18D 26. Response at [486], Jackson Statement at [361] 27. Response at [484], [490][612]; Jackson Statement at [331], [361], [365], [401], [459]; Jackson Affidavit at [7], [36], [37], [38], [42] and [44]-[45] 28. Response at [236], [364], [520] and [615]; Jackson Statement at [211], [331] and [398]; Jackson Affidavit at [66], [130] and [134] 29. Jackson Statement at [335] 30. Response at [519]; Jackson Statement at [392] 31. Jackson Statement at [459] 32. Response at [530], [546] and [558] 33. Jackson Affidavit at [459] 34. Tcpt 29 March 2019, p 36 (8-38) 35. Tcpt, 29 March 2019 p 54 (23-28) 36. See for example Response at [375], [381], [382], [395], [416], [421], [422], [429], [518], [536], [540], [596], [611] and [613] 37. Jackson Statement at [260] 38. Tcpt 27 March 2019, p 78 (18-20) 39. Tcpt 25 March 2019, p 67 (1-32) 40. Tcpt 26 March 2019, p 12 (20-35) 41. Tcpt 27 March 2019, pp 80 (8) – 81 (43) 42. Jackson Statement at [322] 43. Jackson Statement at [302] 44. Jackson Statement at [315] 45. Tcpt 25 March 2019, p 82 (33) 46. Tcpt 25 March 2019, p 85 (28-29) 47. Tcpt 25 March 2019, p 63 (21-33) 48. Tcpt 25 March 2019, p 76 (1-25) 49. Tcpt 25 March 2019, p 77 (3-7) 50. Tcpt 26 March 2019, p 8 (8-15) 51. Tcpt 27 March 2019, p 82 (33-38) 52. Jackson Statement at [120] 53. Jackson Statement at [126] 54. Jackson Statement at [152] 55. Spliet Statement at [26] 56. Response at [119] 57. Jackson Statement at [103] 58. Tcpt 26 March 2019, p 31 (46-47) 59. Tcpt 25 March 2019, p 90 (12-14) 60. Tcpt 29 March 2019, p 78 (12-17) 61. Tcpt 29 March 2019, p 42 (48-49) 62. Jackson Affidavit at [86] Amendments 04 September 2019 - Order 2 and Paragraph [342] amended error in the Police Act 1990 to read as s.177(1) instead of s.173[2] 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: 04 September 2019