Industrial Relations Commission New South Wales Medium Neutral Citation: Lees v Commissioner of Police [2019] NSWIRComm 1045 Hearing dates: 10 May 2018 Date of orders: 12 July 2019 Decision date: 12 July 2019 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner P Kite SC Decision: Application Dismissed Catchwords: POLICE – removal of officer – unreasonable or harsh – dishonesty – lack of candour – misuse of position – misuse of resources – neglect of duty - conflict of interest – officer placing personal interests before interests of the police force Legislation Cited: Police Act 1990 Police Regulation 2015 Category: Principal judgment Parties: James Lees (Applicant) Commissioner of Police (Respondent) Representation: Counsel: S Ryan (Applicant) J Darams (Respondent) Solicitors: Cardillo Gray Partners (applicant) K & L Gates (Respondent) File Number(s): 2017/00304093 Judgment 1. By an order dated 26 September 2017 the respondent, pursuant to s 181D of the Police Act 1990 (NSW), removed the applicant from his position as a police officer. The applicant challenges that order as harsh and unreasonable. Legislation 1. The Commission's duty in conducting the review is set out in s 181F of the Police Act. It provides: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 1. Neither counsel made any detailed submission about the application of the section in this case. Background 1. The applicant was attested as a police officer on 26 June 2012 and commenced duties at Orana Local Area Command ("LAC") on that date. 2. On 3 May 2016 the applicant created a Computerised Operational Policing System ("COPS") event relating to an alleged domestic assault and motor vehicle accident. He named Ms Amber Teale as a witness. She was subsequently served with a subpoena to give evidence in the matter due to be heard on 6 June 2016 at Dubbo Local Court. The applicant was the officer who served the subpoena. The respondent's investigation revealed Constable Kilsby was rostered with the applicant on the date of service. He could not recall attending Ms Teale's residence to serve the subpoena. The Constable, however, witnessed the signature of the applicant on the form verifying personal service of the subpoena upon Ms Teale. Whether that means he witnessed the service itself was not explored in evidence. 3. On 28 July 2016 the Police Integrity Commission received an anonymous complaint alleging the applicant was using his position as a police officer "to pick up witnesses and victims for sex". Ms Teale was named as one of the persons "picked up". 4. A second anonymous complaint was lodged on 27 October 2016 alleging the applicant commenced a sexual relationship with the complainant who was the victim of a crime. The complainant alleged the applicant used her personal contact details to contact her with "flirtatious and sexual messages". The complainant alleged a sexual relationship began before the matter had gone to court or otherwise been resolved. The complainant attached photographs of text messages taken from the applicant's phone at the end of their relationship. The texts were to and from Ms Teale. The first investigation 1. The respondent initiated an investigation into the allegations. Inspector Mark Dixon had responsibility for the first investigation. On 21 August 2016 Inspector Dixon conducted a directed interview with the applicant. The applicant participated in the interview voluntarily and did not require a support person. 2. The applicant denied he had ever used his authority as a police officer to engage a witness or victim in a sexual relationship. He told the Inspector that Ms Teale was the only person he had had a sexual relationship with after meeting her through his official duties. 3. He was asked to explain the circumstances of how they met. He said: I attended a domestic assault matter in May[.] Amber was a witness. I did the job as usual, conducted a written statement with Amber. I was with senior Constable HAWKER. The POI got arrested that night. Amber was a witness; she later got subpoenaed as did another witness. Myself, Amber and the male witness and HAWKER all attended court a few weeks later. The matter got resolved on the day. And that was it really." 1. He denied the intimate relationship commenced during the time he had contact with Ms Teale in an official capacity. The Inspector asked Mr Lees to outline "in as much detail as possible" how the relationship commenced. His answer was: "I am not sure of the exact date. A few weeks after the court date I was at Amaroo and I literally just saw her at the bar whilst getting a drink. I saw her to my right, I said Hi, she said Hi back. I recognised her from court. We began just chatting and talking. I think we exchanged numbers that night and we began to communicate. That evolved into a relationship." 1. He said that the relationship was continuing. 2. The applicant was asked some questions about two other women including Ms Robinson. He said he had no interaction with either of them in an official capacity. In relation to Ms Robinson he said: "I have attended her house on a number of occasions whilst working for lunch or coffee. However I have never had any interaction with her as a policeman. (Emphasis added)" The second investigation 1. The second investigation was conducted by Inspector Jason Pietruszka. He conducted a directed interview on 12 December 2016. Again Mr Lees participated voluntarily and did not require a support person. At the outset of the interview the applicant agreed the record of the interview with Inspector Dixon was true and accurate. He was then asked: "Q. Did you commence a sexual relationship with Amber TEALE whilst the matter of Ashley MALLISON (H 60899911) was still before the court? A. Yes Q. Can you please tell me when the relationship commenced? A. We began, I can't recall when we started. We had basic correspondence of the case of MALLISON as police officer and witness, as I do with all witnesses and victims, nothing out of the ordinary. Q. [How] did you communicate? A. Telephone Q. Calls or text? A. Both. Q. Please continue. A. From there it developed into more of a friendship. She was my age and we had a lot in common. From there I suppose, I can't recall when it turned into a sexual relationship but ultimately it did. That's about it. I refute the allegation of misuse of power. Whilst I am a Police Officer it was a completely mut[u]al friendship that developed into a relationship and she is my current girlfriend and partner. I don't like the term misuse. I wanted to clarify that from what I feel of the word. Q. The matter of Ashley MALLISON went before the court on the 6th June 2016, do you recall roughly when before that date your relationship commenced? A [I]t was late, I don't remember the exact date. [It] was a long time ago. Q. When you say late, do you mean close to the hearing date? A. Yes, it was close to the hearing date, I just can't remember the exact date. Q. To be clear, when I say relationship I refer to a sexual relationship, do you understand that? A. I do. (Emphasis added) 1. He agreed he served the subpoena on Ms Teale on 11 May 2016 at 17:05. He denied having any form of sexual contact with Ms Teale when he served the subpoena. He was then asked about the text messages which had been attached to the anonymous complaint. He agreed that at least one of those messages from him was obviously of a sexual nature. He could not recall who his work partner was on that evening but said that he served the subpoena by himself. His partner remained in the vehicle. The applicant could not recall attending Ms Teale's residence at the end of his shift that night. He had gone round after work on occasions but denied doing so on that night. Although the text messages suggested a sexual relationship he reiterated that did not begin until closer to the court date. He also denied engaging with any person sexually whilst on duty over the 18 months prior to the interview or ever having commenced or attempted to initiate a sexual relationship with a witness or victim in that time. 2. He was also asked about the answers he gave to Inspector Dixon in particular about when his intimate relationship with Ms Teale commenced. He was asked: "Q. You have indicated earlier that you commenced the relationship with Amber TEALE before court finished. Do you agree that you provided answers to Inspector DIXON that were not truthful? A. Yes but I want to clarify more than yes and no if I may. Q. Please. A. It is true that we met at the pub, that bit is true. We commenced our relationship in a more public manner, however I did leave out details prior to the court date concluding. Q. Again, you were asked the following question by Inspector DIXON, "Did you commence having an intimate relationship with Amber TEALE during the time that you had contact with her in an official capacity?" You responded, "No". That was not true was it? A. No it wasn't. Q. Why did you provided answers to Inspector DIXON that were untruthful A. At the time I wasn't afraid of any repercussions but I was afraid I may have jeopardised the case. I wasn't sure how or in what manner. I couldn't see how I could have but I wasn't aware if I did. It wasn't for self-preservation, I could cop it. I didn't want my work compromised. I take that very seriously. It wasn't the best decision. The lie wasn't to protect me and Amber but only the case itself. Q. Do you understand the seriousness in lying to a senior officer? A. Yes I do. Q. Is there anything further you wish to add? A. I regret lying to Mr DIXON. I should have been more upfront in the interview. For that, I have dwelt on it a lot. That's about it. If I had my time again, I would have got it all out. I just panicked." The Investigation Report 1. The Investigation Report (the "Report") prepared by Inspector Pietruszka dated 13 February 2017 was attached to the applicant's statement. The Report notes the investigation was launched in relation to two issues arising from the second anonymous complaint. They were: "misuse authority for personal benefit or the benefit of an association": and "Misuse of official vehicle". In his Report the Inspector notes he had regard to a two page statement made by Ms Teale to Inspector Dixon. He says: "Through the admissions of Senior Constable LEES, the information provided by TEALE on when the relationship occurred is known to be false." 1. He notes she was invited to make a further statement but, after taking some time to consider it, declined to do so. 2. The Inspector found the two issues not sustained because there was no or insufficient evidence to prove that the applicant had engaged in sexual activity whilst on duty. He noted that the evidence of the text messages and the roster showed that the applicant was not on duty when he attended Ms Teale's residence on 11 May 2016. It is fair to infer from this finding that the Inspector considered a sexual relationship commenced on or about that date. The Inspector found that the evidence as to the commencement of the relationship with Ms Teale equated to a misuse of authority and he sustained an allegation of "misuse of authority" on that basis. 3. Inspector Pietruszka also found that the applicant had been untruthful in his answers to Inspector Dixon and that he was "vague and evasive" in certain answers in his directed interview with him. He sustained a complaint issue of untruthfulness on that basis. The applicant's response to the Report 1. The applicant's response to the Report (the "Lancaster response") was attached to his statement and included in the Commissioner's Tender Bundle. He: * thanked the Investigators for the "not sustained" findings; * said that he and Ms Teale were currently in a relationship and that she "is very intelligent and outwits me in every way"; * wished he could change the circumstances of how they met but could not; * felt that, although his personal life since coming to Dubbo had "been anything but ordinary", he was finally settled; * acknowledged he had been untruthful to Inspector Dixon and was sorry for that; * noted he had since apologised to the Inspector; * recounted that he had been on a management plan for almost 4 months and found the restrictions under that plan acutely embarrassing; * said he had abided by the conditions imposed; * expressed the view he was an asset to the Police Force and he had worked hard to establish his reputation as a good worker; * despite all the hard work, and the travails and abuse that accompany that, he remained dedicated and positive. 1. It is noteworthy that he did not comment on the Inspector's observations that he had been "vague and evasive". Nor did he comment about Ms Teale's statement or her decision not to make a further statement. The allegations 1. The applicant was asked (the "show cause notice") to make submissions as to five allegations of misconduct to which the respondent was giving consideration with a view to the applicant's removal as a police officer. They were that the applicant: 1. lied during his directed interview with Inspector Dixon when he said that he did not commence a sexual relationship with Ms Teale until after the court proceedings were finalised. 2. misused his position and authority as a police officer to commence a sexual relationship with a witness in a criminal matter of which he had carriage. 3. misused Police Force resources whilst on duty in particular by attending the residences of: 1. Ms Nicola Robinson on a number of occasions whilst working for lunch or coffee; and 2. Ms Teale on many occasions to have coffee or food. 1. failed to report a conflict of interest, namely his intimate relationship with Ms Teale. 2. neglected his duties as a NSW Police Officer when he left work, without lawful reason or authorisation, on several occasions between May and October 2016, and failed to report and/or seek authorisation for these absences to/from his supervisor/s when attending the residences of Ms Teale and Ms Robinson. 1. In relation to the various allegations the Commissioner referred to the Police Act, in particular ss 7 and 201, the NSW Police Force Handbook, NSW Police Force Code of Conduct and Ethics, Police Regulation 2015, in particular cll 8 and 9, Use of Resources Policy, and the Conflicts of Interest Policy Statement. The applicant's response to the show cause notice 1. The applicant began his response by denying the content of the anonymous complaint received on 27 October 2016. In relation to Ms Robinson he denied any connection with his role as a police officer. He said that he had resided at her address for a number of months and would often attend the address to retrieve food and drinks as it was "my residence as well during the time". I note that was not what he said to Inspector Dixon, as quoted at [13], describing it as "her residence". He acknowledged those actions may have been perceived as something else entirely. It was not something he had thought about at the time and now regretted. 2. He referred to the "turbulent on/off relationship with" his ex-wife. He said it had been a "hard and personal time". He had made some bad judgments and that he acted in a way that did not reflect the person he truly was. He said those times were behind him. He said: "In regards to allegations of myself and the female partaking in sexual intercourse whilst I was at work back in 2014, I make no excuses for my actions. It has been a constant source of embarrassment and shame for me and I regret my actions wholeheartedly." 1. As to being untruthful to Inspector Dixon he said he was stupid to lie and be untruthful. He said he had never offered excuses for lying to the Inspector because there were none. He said he had spoken to Mr Dixon on the matter and apologised profusely and that Mr Dixon had accepted his apology and suggested it should be a lesson in honesty and integrity. 2. He spoke of his dream to pursue a policing career. He very much enjoyed working at Dubbo Station and had built good relationships and had established a good reputation with his colleagues. 3. He submitted that the position in which he had placed himself had been "most stressful" and was an effective deterrent from repeating past behaviour. He submitted that, although he accepted that some form of punishment was appropriate, dismissal would be harsh. To lose his job would destroy him financially. 4. He said that he had the confidence of his superior officers to carry out the tasks they allocate to him and considered himself an asset to the Police Force. Further, he said he was a changed person in a stable and loving relationship with Ms Teale who was a great support to him. 5. The applicant submitted that, at the time of responding, he was on suspension which was demoralising and embarrassing and came after six months of being on a management plan. Those two factors were a huge deterrent to further misbehaviour. If he were given the chance to return to work he would be committed not to repeat past mistakes. 6. Mr Lees commented also on his interaction with Cassi Cornish. He said they had been friends for a number of years. At a time when he was extremely stressed with normal work duties, and at the same time the subject of a management plan, he had raised his voice to Ms Cornish but he denied swearing. When Ms Cornish made clear how she felt about what he had said and the way he had said it he immediately apologised to her. Since then they had worked together numerous times and continue to be good friends. 7. He attached to his response three character references from colleagues who subsequently made statements to similar effect in these proceedings. The Commissioner's reasons 1. The Commissioner set out the background to the allegations referring to the directed interviews, the applicant's Lancaster response, subsequent conduct and his response to the show cause notice including the character references attached to it. 2. He also set out the applicant's disciplinary history. The applicant had been reprimanded on 15 December 2015 for unprofessional conduct on 16 November 2015. While performing guard duty at Dubbo Base Hospital the applicant had been overheard using explicit language and discussing matters of a sexual nature. The applicant was also reprimanded on 25 February 2015 for unreasonable conduct and incivility/rudeness. On 11 November 2014 while in uniform and performing duties in a fully marked NSWPF vehicle, he was observed to enter a civilian vehicle parked under a bridge. Several witnesses, using their mobile phones, video recorded the vehicle moving in a "rhythmic motion". One witness reported the incident to his cousin who was a sergeant of police. The Sergeant contacted the applicant to confirm he had reported the matter. It was found that the applicant had demonstrated incivility to the Sergeant during the call. The applicant admitted engaging in sexual activity while on duty and attempted to minimise the conduct by stating that it occurred on his lunch break and as a result of being rostered on "alpha unit policing duties" for the fourth shift in a row. 3. The Commissioner's reasons detailed his consideration of the allegations particularising the various aspects of the Police Act, Regulation and policies relating to each. Allegation one 1. In relation to allegation one the Commissioner concluded that the applicant had been intentionally dishonest in his interview with Inspector Dixon. In doing so he was deliberately attempting to minimise the seriousness of his misconduct and hide the potential repercussions that the relationship could have had on the outcome of a criminal matter. The Commissioner concluded that it was clear that at the time of serving the subpoena on Ms Teale some form of sexual relationship had commenced or was imminent. He referred particularly to the text messages sent on that day in support of that conclusion. 2. The Commissioner noted that the applicant had not admitted to a sexual relationship with Ms Teale until after the anonymous complaint had been lodged and he was questioned by Inspector Dixon. But even then he was not truthful in his admission maintaining the relationship did not commence until after the court matter had been finalised. In support of that proposition the applicant had crafted an elaborate story of how the relationship commenced. 3. The admission that some form of personal relationship with Ms Teale had commenced before finalisation of the court matter did not come until after the second anonymous complaint which attached evidence of the text messages referred to. It was not until the second directed interview, 7 months after the commencement of the relationship, that the applicant finally made the admission. The Commissioner said: "This was an inexcusable delay, and demonstrates a failure on your behalf to take accountability for your actions. But for the receipt of the second complaint and attached text messages, I do not believe you would have admitted to the actual length of your relationship with Ms Teale." 1. The Commissioner concluded that the eventual admission did little to mitigate the misconduct, noting that the applicant continued to maintain that he could not recall when the relationship became sexual. That suggested that the applicant was still not conducting himself with complete candour and raised "serious and alarming" questions about his integrity. 2. The Commissioner concluded his consideration of this allegation as follows: "I remain of the view that your pattern of dishonest, morally questionable and arguably exploitative behaviour is extremely serious, and renders your ongoing employment by the NSW Police Force untenable. Allegation two 1. The Commissioner concluded that but for Ms Teale's involvement in the criminal matter there was nothing to suggest that the applicant knew and/or had reason to be in contact with her. The applicant had used her contact details, obtained through his employment, to begin communication with her. It was a clear misuse of his position as a police officer. Allegation three 1. The Commissioner was also satisfied that the applicant had misused NSW Police Force resources in attending to personal matters and relationships during work hours. He noted that the allegation that the applicant lived with Ms Robinson had only arisen for the first time in his response to the show cause notice and he had produced no evidence to support the assertion. The Commissioner concluded his consideration of this allegation as follows: "I find that you have engaged in misconduct as alleged, and that this again demonstrates poor judgement and self-interest on your behalf, and a lack of care and respect for your role and your duties." Allegation four 1. The Commissioner considered that the applicant had placed personal interests above those of the organisation and those of the victim in the criminal matter by engaging in the relationship with Ms Teale prior to conclusion of the proceedings. The Commissioner considered that there was a real prospect that the relationship could have jeopardised a successful prosecution and the reputation of the NSW Police Force. The applicant's failure to report and manage the clear conflict of interest was without excuse and inconsistent with his duties as a sworn officer of the NSW Police Force. Allegation five 1. Based on the admission that he had attended the residences of Ms Teale and Ms Robinson whilst on duty, the Commissioner concluded that allegation five was made out. He referred to the absence of evidence to support the assertion that he was residing with Ms Robinson during this period. Importantly, in the Commissioner's view, he had provided no evidence that he had sought authorisation to attend his personal residence while on duty. The Commissioner concluded: "A pattern has emerged of you placing your own interests above those of the NSW Police Force. I do not believe I could continue to have trust in you to responsibly and assiduously carry out your duties when unsupervised if you were to remain a member of this organisation." Summary 1. The Commissioner concluded his reasons by reference to the disciplinary history, the reprimands already noted, and the applicant's demonstrated failure to understand what is acceptable behaviour for a police officer. He emphasised the fact that the applicant had come under adverse notice for engaging in sexual intercourse in public view and whilst on duty only 15 months before the conduct the subject of the present allegations. That conduct was embarrassing to the applicant but also to the NSW Police Force as a whole. The Commissioner noted: "You were fortunate enough to be given another chance, not being the subject of serious disciplinary action in spite of the seriousness of your misconduct. Despite having been given this second opportunity to improve your conduct and demonstrate you understand what was required of you as a police officer, you have again misused your position. By your actions, you have abused your power, and acted with self-interest in engaging in an inappropriate physical relationship through or in connection with your position as a police officer. This pattern of conduct demonstrates to me that you have no respect for your colleagues, nor do you appreciate the importance of your role in the community or your Oath of Office. It appears that you only demonstrated remorse for your conduct once that conduct had been exposed. You appear to lack self discipline and self control to proactively act in accordance with the policies and procedures put in place to guide your behaviour. While you may be very adept at other elements of your policing work, no amount of skill can excuse or mitigate misconduct of this nature. It is clear that I cannot maintain confidence in your ability to respectfully, diligently and ethically carry out your duties." 1. The reasons then referred to the allegation of offensive and inappropriate language in the exchange with Ms Cornish. Engaging in such behaviour while on an Interim Risk Management Plan ("IRMP") confirmed that the applicant had not learnt and was unlikely to learn from past mistakes. Again, the Commissioner considered that the contrition offered by the applicant was disingenuous. The behaviour reinforced the Commissioner's conclusions as to the applicant's failure to learn from past mistakes. The applicant's case 1. In opening counsel for the applicant, Mr Ryan, said that the applicant admitted allegation 1. He also admitted allegation 4 to the extent that there was a potential or perceived conflict of interest but denied any actual conflict. The applicant denied allegations 2, 3 and 5. The applicant submitted: "As the Commission can see, there is little in dispute about the facts in this matter. What is in dispute is the characterisation of these incidents and whether they warranted the dismissal of Mr Lees." 1. The applicant read statements from: * Kelli Hall; * Justin Falkiner; * Corey Ahling; * Joseph Cooper; and * the applicant. Character references 1. Each of the first four witnesses made short statements confirming that they were aware of the allegations made against the applicant and indicating that they had worked with him since he commenced at Dubbo or in the case of Mr Ahling since about April 2015 and Ms Hall since February 2016. None of the witnesses was required for cross-examination. 2. Ms Hall said she had recently worked with the applicant when they attended a report of an assault. The victim was an elderly woman who was quite distraught. Ms Hall observed the applicant to be compassionate and professional when dealing with that woman. She said she had not witnessed any behaviour on the part of the applicant that she felt was unethical or concerning in any way. 3. Mr Falkiner said that he had found the applicant to be polite and respectful in dealings with colleagues and the community. He also observed him to be professional and empathetic in the course of his duties. 4. Mr Ahling said that he regarded the applicant as a hard-working and a quiet achiever. Although he could not recall the exact dates, he had worked with the applicant up to approximately six times over the period of 18 months. He thoroughly enjoyed working with him. He regarded his keenness as exceptional and he did not experience a negative time working with him. 5. Mr Cooper said he worked with the applicant for about five years in General Duties, Operations and assisting in many tasks and investigations. He had found the applicant to be polite and respectful when dealing with victims and witnesses and showing great empathy toward them. He regarded him as professional in every instance he had been involved with him at work. He had not witnessed the applicant to act in any manner to the discredit of the NSW Police Force. The applicant's evidence His statement 1. The applicant was born in May 1987. He left school after year 11 but later returned to TAFE to obtain his Tertiary Preparation Certificate (HSC equivalent) and then obtained admission to the Goulburn Police Academy. Between leaving school and attending the academy he worked a variety of low and semi-skilled jobs. 2. He married in 2009. In 2012 he and his wife began to experience marital difficulties leading to separation in 2012 and divorce in 2014. He said the separation and divorce were acrimonious and sad. He assessed the breakdown of his marriage to be a factor in "most instances of bad judgment". 3. Having grown up in Hay he thought the township of Dubbo was perfect for him as it was a rural environment much like Hay. 4. He said his relationship with Ms Teale "began late 2016". The relationship began following the breakdown of his marriage which he noted was a very difficult time in his personal life. He regarded his work life as perfect. He recorded that, according to his superior officers, he was consistently working above satisfactory level. The relationship with Ms Teale was continuing and was a stable and committed relationship. 5. He referred to the investigations undertaken by Inspector Dixon and Inspector Pietruszka into the anonymous complaints lodged in July and October 2016. He said he was aware Ms Robinson and Ms Watson were interviewed but he had not been provided with any notes of those interviews. 6. He accepted that he had been untruthful to Inspector Dixon. He did not seek to condone that conduct, he simply reiterated that he had panicked and displayed a lack of judgment. He said he had apologised to Inspector Dixon. 7. In relation to Allegation 1 he said he was unreservedly sorry and ashamed of his behaviour. 8. In relation to Allegation 2, he did not deny that he commenced a relationship with a witness in a criminal matter but denied that he was consciously attempting to misuse his position and authority as a police officer to begin that relationship. In hindsight he said he accepted that he should have exercised better judgment and delayed the commencement of any intimate relations until the criminal matter had concluded and/or he should have reported the relationship to his superior officers. He did not accept that he pursued Ms Teale. He said the relationship commenced on a basis of mutual feelings of respect and affection. 9. In connection with Allegation 3 he denied misusing police resources whilst on duty. He said in giving his explanations previously he had not explained that the attendances at Ms Robinson's residence were not unauthorised absences from work, nor had he explained that he did not use a police vehicle specifically to attend the residence of Ms Robinson or Ms Teale. He said when he attended those residences he was either on a lunch break or "other rostered" work break. He said that, at Dubbo police station, the practice of officers attending their residences for their rostered lunch break was not uncommon. 10. In connection with Allegation 4 he accepted with hindsight that the relationship with Ms Teale could be viewed as a conflict of interest. He did not perceive that at the time. He said Ms Teale was not a "material witness" in the criminal proceeding. He expressed regret for failing to disclose the relationship to his senior officers and acknowledged he exhibited poor judgment. He did not, however, consider his relationship with Ms Teale as being "in any way an attempt to influence my private interests". 11. The applicant denied he had neglected his duties as alleged in Allegation 5. Again, he accepted that he attended the residences of Ms Robinson and Ms Teale whilst on duty but said those attendances were not "unauthorised absences". He repeated that he resided at these addresses when he made the visits to these residences. He said that throughout his time as a police officer he had never understood that attending a residence to obtain food was an instance of misuse of police resources. He said he was present when other officers attended their residence for that purpose. 12. He expressed the view that particularly in General Duties there is little capacity to organise a structured lunch or dinner break. To take food or drink whilst patrolling was seen not only as common sense but normal due to the heavy workload faced by Dubbo police. 13. In relation to the consideration of subsequent conduct he noted that he had been placed on an IRMP on 13 December 2016. He repeated that any time he attended the residence of Ms Teale or Ms Robinson it would have been at a time when he resided at that address also. I am uncertain of the relevance of the IRMP to his attendance at the residences of Ms Teale or Ms Robinson. The IRMP commenced well after the time period expressly stated in allegation 5 and implicit in allegation 3. It was certainly well after the period the applicant claimed to reside at the same address as Ms Robinson. 14. He said that on or about 3 April 2017 he raised his voice to Cassi Cornish but denied he was abusive. He accepted that Ms Cornish was offended and said he apologised to her immediately, "and not after I had been advised that I had caused offence". 15. The applicant dealt with his disciplinary history. In connection with the incident at Dubbo Base Hospital he said that he thought he and his colleague were speaking in a low volume and were not aware of the presence of any patients or staff. The use of swear words was done in a humorous manner. They were not approached by any staff to suggest that their conversation was disturbing the peace of others. He regarded the complaint as finalised at the time that he was reprimanded. 16. He acknowledged having sexual intercourse with a female in the car outside the township of Narromine. He said that was a terrible instance of bad judgment. The incident was the source of acute embarrassment and the subject of many jokes from a select few Police employees. He said at the time he was having great difficulties in his personal life "and was using sexual intercourse as a means of numbing the reality of my broken-down marriage". He denied incivility to the Sergeant who reported the incident. 17. He said he was passionate about his work and enjoyed immensely being involved in the community. Since his removal he had tried unsuccessfully to obtain employment and noted that the prospects and opportunities for obtaining employment in Dubbo were limited. The loss of his job would cause significant financial hardship. 18. He attached to his statement a Reviewer Report dated 18/04/2017 in connection with his IRMP which deals with the issue raised by Ms Cornish. Apart from that, the reviewer's comments deal with the applicant's welfare. 19. The applicant was cross-examined. The cross-examination 1. The first topic of note related to where the applicant resided. He said he had resided at 1/1 Stirling Street, Dubbo during 2016 but he could not recall the precise dates. He said he lived alone at that address. He said he resided with Ms Robinson beginning in 2015 and ending late that year or early 2016. He resided with Ms Teale from some time after their relationship started. He was shown a document which he recognised as a "SAP page where officers can update their information". He agreed he accessed the SAP page to update his residential information and that the information would have been as accurate as he could make it. He explained that the SAP page was a portal unique to each officer. The document became Exhibit 3. 2. He was then asked about the information contained in Exhibit 3. In summary the SAP page recorded his permanent residence as: * 21 Topaz Street from 15.03.2015 * 1/1 Stirling Street from 13.04.2016 * 3/25 Boundary Road from 15.10.2016 1. He said: "Q. Mr Lees, I want to put this proposition to you: You resided alone at the address 1/1 Stirling Street Dubbo from about 13 April 2016, would you accept that? A. I don't fully accept it, as I stated earlier, cannot recall the date I moved in. Q. The only issue you have with that proposition is the date? A. Yes, yes, I earlier today stated I recall living there some time in 2016. Q. The other proposition put to you is you commenced residing at 3/25 Boundary Road Dubbo on or around 15 October 2016, do you agree with that? A. I can't recall the date I moved out of my flat. I didn't know that information was relevant to today, so I didn't remember it exactly, to be honest with you, so I can't confirm that date. … Q. The only matter in that proposition I put to you was the precise date you commenced residing‑‑ A. The precise date I commenced residing at 3/25 Boundary Road I could not give you right now. Q. You also agreed in your evidence before that you didn't commence residing with Ms Teale until the commencement of your relationship correct? A. Correct. Q. You say that your relationship with Ms Teale began late 2016, you recall saying that? A. Yes. Q. When you said "late 2016" I want to suggest to you that the months that you were referring to in capturing late 2016 was mid October onwards, do you agree with that? A. No. Q. What were you referring to then? A. The word "late" is very subjective. Q. I'm asking you what you ‑ I accept it might be subjective? A. My interpretation of late would be halfway onwards. Q. So you are saying that your relationship, so just halfway, you mean, do I take ‑ you say late 2016 you mean from 1 July 2016 onwards? A. I classified the relationship as an official couple relationship late 2016. Q. Whatever you term it, I'm just focusing on late 2016? A. Yes. Q. You have just said and given evidence that you classified late 2016 to be anywhere from mid‑‑ A. Mid onwards, yes. Q. So you don't say you moved in with Ms Teale on 1 July, do you? A. No, I didn't move in with Ms Teale July. Q. I want to suggest to you Mr Lees that when you were referring to late 2016, you were actually referring to around October and following, do you agree with that? A. What are you referring to exactly? Q. I'm testing what you say in relation to late 2016; I'm putting to you that what you mean by late 2016‑‑ A. Really I said my meaning of late 2016 to be the same as late any year, to mean it could be mid onwards. Q. You just used the terminology "mid"? A. Mid onwards, yes. Q. What is mid 2016? A. Around month six onwards. Q. You use mid and late interchangeably, is that right? Is that how we understand it? A. I would agree saying late something is open to very subjective meaning, and you have asked what I mean by that, it would be mid onwards. Q. Why didn't you use mid 2016 in paragraph 16 of your statement? A. Because I often use late to mean mid onwards. I use the late 2016 in my statement. Q. If that is right and we accept your evidence, by the time that you had met Inspector Dixon on 31 August you were well into your relationship with Ms Teale? A. I was in a relationship with Ms Teale in late 2016." (Emphasis added) 1. The passages emphasised in the above quote became significant. First, it is to be recalled that the applicant is a trained and experienced police officer. The question of where he resided at various times was clearly an issue raised by the allegations and his response to them, yet he says at the outset of his cross-examination that he did not know the information would be relevant. 2. Second, in the second highlighted passage when asked about his use of the word "late" he declines to answer the question. He argues it is "a very subjective" word. He fails to give an answer to what he meant by his use of the word. Instead he proffers what it could mean by reference to the term "mid onwards". The passages do not reflect someone attempting to be candid within the boundaries of understandable recollection. Rather it appears he is trying to ensure he cannot be pinned down to even approximately accurate times. Even his own entries in his SAP page are not to be regarded as accurate despite his evidence that he uses his best endeavours to ensure they are. These are but the first examples of his evasiveness and lack of candour. 3. There is little doubt in my mind that his contention that "late" could perhaps mean "month six onwards" is designed to give him wriggle room about visiting Ms Teale's residence in order to argue it was his also. Allegation 5 particularises the period concerned as May to October 2016. On his evidence he was not residing with Ms Robinson in that period. His SAP entry specifies 15 October 2016 as the date from which his residential address coincides with Ms Teale's. According to his statement his "relationship" with Ms Teale began in late 2016. That appears to coincide with the SAP entry subject to what is meant by "late 2016" and "relationship". As to the latter, the passage quoted at [76] would imply it means a "committed couple relationship" in this context. 4. The irony is, if it is accepted that "late" means "month six onwards", it follows he has already commenced his sexual relationship with Ms Teale well before June, because he did not move in with her until some time after the (sexual) relationship commenced. That is completely contrary to what he told Inspector Dixon at [11] and also what he told Inspector Pietruszka, see the highlighted passage at [14]. In seeking wriggle room in relation to one Allegation he exacerbates his position in relation to others. He appears to realise this danger in the last highlighted answer in [76]. That answer is, one may observe in passing, not responsive to the question asked. His evidence is clearly unsatisfactory. 5. After some questions about other employment the cross-examination turned to the particular allegations. Allegation 1 1. He admitted he was untruthful to Inspector Dixon and invented a story as to how the relationship commenced. He was then asked: "Q. What I want to suggest to you, Mr Lees, is that, when you decided not to tell Inspector Dixon the truth and came up with the other story, you were putting your personal interests above those of the police? A. At the time I felt I was putting the interests of the police in front of my own. I know that sounds really silly but that's how I rationalised it in my mind. I felt that I had jeopardised the hard work I had put into the case involving Mallison, I feared so much that I felt that I had jeopardised it in finding love ‑ this sounds corny ‑ and I told an untruth to Mr Dixon." Noting that his answer was directed to his state of mind "at the time" he was asked if he was still of that view. He said he was, but denied he would act in the same way now. The cross-examination then continued: "Q. Do you know now that you were putting your interests above these of the Police Force? A. As I said, at the time I felt that I was putting the police interests above those ‑ I know how it could be. Q. I'm asking you now, do you accept now that when you lied to Inspector Dixon you were putting your personal interests above the New South Wales Police Force interests? A. It is a hard question to answer because I'm being asked to be in two states of mind, one here now and one at the time of the interview with Mr Dixon. Q. Is that the answer you want to give to that question? A. No. I do believe it to be so that it could be perceived to be putting my own interests before the Police Force. Q. Do you accept‑‑ A. I do accept. Q. When did you come to that realisation or acceptance? A. Just in time, thinking about how it could be perceived to be that I was putting myself before the Police Force. Regardless of what I felt at the time, that's how it was perceived and I am truly ashamed of that. Q. Had the court case concluded by 21 August? A. To my knowledge I think so. Q. Can you recall now whether you gave any active thought to whether or not it actually would be better to disclose that information truthfully, given the case had finished? A. No. Q. Given the case, on the assumption the case had finished, do you recall whether Ms Teale was cross‑examined? A. I don't believe she was. Q. Help me out a little bit then; what really or why did you think that the case would be in jeopardy ‑ my description ‑ if Ms Teale wasn't cross‑examined and the case was finished? A. It's a good question. I wasn't quite sure. As I mentioned in my interviews at the time, I wasn't quite sure how I jeopardised the case. I just remember panicking and being untruthful to Mr Dixon, avoiding that question. Q. I want to suggest to you then that, really, there was no chance of jeopardising the case as at that date and you were really put putting your personal interests above the New South Wales Police, what do you say about that? A. Perhaps that's is how it is. It may well be the case. But in my mind at the time I felt very differently to how you are describing it now. My work is something I put above most." (Emphasis added) 1. Evasion and obfuscation are again apparent. For an officer dedicated to integrity above all and placing the interests of the community and the Police Force above his own it should not be "a difficult question to answer". I observe that he was not being asked to be in two minds. That is his invention. He was being asked his opinion at the time of giving his evidence. 2. Equally the applicant was unable to say that he had given any thought to coming forward and admitting his wrongdoing after the case had finished. This is advanced notwithstanding that in his later evidence, quoted at [85], and in his response to the show cause notice he said it was something he dwelt on at length and found hard to live with. 3. The applicant said from the moment he lied to Inspector Dixon he felt he should have been truthful: "Q. So you say‑‑ A. When I lied to Mr Dixon, that's something I regretted then very, very much and I wish I had told the truth when asked. Q. Why didn't you on reflection go to Inspector Dixon two days later and tell him, say Inspector Dixon, I was untruthful to you two days ago, I want to tell you the truth, why didn't you do that? A. Because I was silly and stupid and I should have. Q. You finally did tell the truth, didn't you? A. I did. Q. You told Inspector Pietruszka in December 2016, correct? A. The day of the interview, whatever it was, yes, I did. … Q. You didn't decide to tell Inspector Dixon and, in say November 2016, you had been untruthful with him, did you? A. No. I told Mr Pietruszka that I had been untruthful with Mr Dixon. Q. I want to suggest to you that, but for there being another complaint about your conduct, you would have not have ultimately been truthful about the time of the commencement of your relationship with Ms Teale, what do you say about that? A. It's hard to say. That time part didn't occur, it happened how it happened. I have been conjecturing, giving the answers to false hypothetical situations. Q. What I want to suggest to you is that the only reason that you did or ultimately were truthful, you say, about the time you commenced your relationship with Ms Teale, is because you were interviewed again? A. What date was that? Q. The interview, 12 December 2016. What I'm putting to you is, if that interview had not occurred, then you would not have made the disclosures you did on that date, do you agree with that proposition? A. I believe I was residing with Ms Teale at the time, so I wasn't trying to hide Ms Teale as my partner. I believe I made her next of kin as well as my address. Q. Sorry? A. She was possibly my next of kin as well as my address where I resided with her. Q. What I'm asking you about is you were ultimately being, you say, truthful about the time you started your relationship with Ms Teale, do you understand that? A. Yes. Q. What I'm suggesting is that, but for that interview with Inspector Pietruszka occurring in December 2016, you would not have made that disclosure about, one, the time that you commenced your relationship with Ms Teale, do you agree with that? A. It's hard to say. Q. Secondly, you would not have made the disclosure that you had lied to Inspector Dixon, what do you say about that? A. Again, it is hard to say. … Q. You can't sit here today and tell the Commission that the weight of the fact that you had lied to Inspector Dixon was so much that you had already decided to be truthful or make the disclosures that you did to Inspector Pietruszka before that meeting with Inspector Pietruszka? A. It was something I dwelled on a lot, lying to Mr Dixon, I said that in my statement. It was very, very hard mentally to live with it, and when I was asked by Mr Pietruszka, obviously I told the truth about my relationship with Amber. Had I not been interviewed by Mr Pietruszka I may have disclosed on an earlier day. It is hard to say, the hypothetical situation never occurred. Q. The ability to disclose it earlier had occurred, hadn't it? A. Yes, it was something I should have done. Q. I want to put this proposition to you: I'm going to suggest that, but for this second interview with Inspector Pietruszka, you would not have made the disclosures voluntarily, what do you say about that? A. I have nothing to say about that." (Emphasis added) 1. An officer who had learned from past mistakes and who is attempting to be candid should have no difficulty answering these questions. The last answer quoted at [85] has much to say about the officer's willingness to accept responsibility. The inference is he has nothing to say because he perceives the only thing he can say, with any credibility, will be damaging to his case. 2. The highlighted answer in [85] about him residing with Ms Teale at the time of the December interview clearly is not responsive to the question asked. I considered this, the earlier introduction of a discussion as to the subjectivity of a word he had used, at [76], and the non-sequitur that but for the interview he may have disclosed his dishonesty earlier, as examples of the unwillingness of the witness to face up to the hard issues confronting him. Instead of answering the question asked he seeks to distract the cross-examiner. The fact that it does not work does not militate against the view that he was not attempting to be candid. 3. I note also that he did not tell the whole truth to Inspector Pietruszka. He still sought to say that the relationship did not develop into a sexual relationship until close to the court date of 6 June when clearly it had reached that stage, in my view, on or about 11 May. That dishonesty is made worse by his definition of "late 2016" as I have explained in [80]. His failure to be honest with Inspector Pietruszka undermines the applicant's mitigating evidence in relation to Allegation 1. Allegation 2 1. The applicant admitted that he commenced a sexual relationship with a witness in a criminal matter of which he had carriage but denied that he misused his position and authority to achieve that end. He was referred to paragraph 39 of his statement. There he denied "consciously" using his position. He was asked: "I want to ask you about that: Do you accept, take out the word "consciously", that you were misusing your position and authority as a police officer? A. I believe I was‑‑ Q. Sorry? A. I did not believe I was at the time. Q. Do you believe now that you were? A. Yeah, I can ‑ yep, I can see that it could be inappropriately be perceived as that way. It is something that has greatly the benefit of hindsight. Q. In that regard then you were in the court this morning when your counsel said that you deny the allegation, you recall that? A. No. Q. You don't recall? A. Was this morning this morning, in the opening? Q. Yeah, my recollection is your counsel‑‑ A. Yeah, I do deny at the time but, as you said before, I can see how it can be that may be perceived that way. Q. What I'm asking you is do you now in these proceedings still deny the allegations? A. Yes, because what has happened has happened and I don't feel that I used my position as leverage or any sort of form of control or manipulation in any way." 1. The applicant agreed that he only came to meet Ms Teale through his policing duties. He took a statement from her and obtained her telephone number. He served a subpoena on her. They exchanged sexually explicit texts within minutes of the service of the subpoena. They continued to exchange texts during the night of 11 May culminating, as I find, in the applicant returning to Ms Teale's residence at the end of his shift. 2. Counsel for the respondent, in a question, suggested a certain number of texts on one day relying on the Telstra log part of Exhibit 10. There was an objection based upon some explanatory notes provided by Telstra. Those notes were tendered as part of Exhibit 10. Counsel explained that entries in the log within a few seconds of each other should be regarded as one call or SMS. I accept that explanation and proceed on that basis. 3. Before continuing with the cross-examination on this topic it is convenient to note some dates to facilitate understanding the cross-examination which follows. The incident the subject of the criminal proceedings occurred on Tuesday 3 May 2016. The alleged perpetrator was arrested that night. The subpoena was served at 17.06pm on Wednesday 11 May 2016. According to the applicant's Personal Roster Report (Exhibit 11) Between 1 May and 16 May 2016 the applicant worked: * From 18.00 to 06.30 on Tuesday to Wednesday 3-4 May * From 06.00 to 18.30 on Thursday 5 May * From 06.00 to 18.30 on Monday 9 May * From 08.00 to 16.30 on Tuesday 10 May * From 15.00 to 23.30 on Wednesday 11 May On 1 and 2 May and on the intervening days he was on "Rest". He took recreation leave from 14 to 16 May. 1. The first two text messages produced in the Commissioner's Tender Bundle indicate they were sent by the applicant to Ms Teale on Monday at 11.58 am. The conclusion I draw is that they were sent on 9 May. 2. The first message reads: "Hey it's James from police I took the statement from you about next door. That baddie was locked up that night. He has plead [sic] not guilty and I'll be chasing up your mum for a statement when I can today." Then the second message: "You may be served a subpoena to attend court sometime in June. Me as well". 1. One wonders why he is sending the first text to Ms Teale when it is her mother from whom he wishes to obtain a statement. On its face it relates to his official duties. Ms Teale replied that she was pleased the offender was locked up. She indicated that her mother would be home about 4.30. She also confirmed she was happy to attend court. 2. The next page of messages in the Tender Bundle begins with, it appears, a response from Ms Teale saying "Haha ok" and includes an emoji. There is no indication to what Ms Teale was responding. A time and day, being Wednesday 4:51 pm, is recorded. The content of the next message, which is timed Wednesday 5:08 pm, leads me to conclude that it was Wednesday 11 May 2016. It is from the applicant. It reads: "Best subpoena I've ever served!" I note the message is sent just two minutes after service of the subpoena. 1. The cross examination continued: "Q. The response appears to be "best subpoena I have ever served!", that is a text message from you? A. Yes. Q. Then there is a response, "ha, ha, ha, ha, best police account [sic: encounter] ever!" From Ms Teale; that's correct? A. Yes. Q. Then you say, "wanted to so badly put you over the bench and lower your jeans down"; that is your response to that? A. Yes. Q. Now, those text messages that we have just been talking about were sent or appear to be sent and received on Wednesday, do you see that? A. I do. Q. It is a fair assumption to make that that was Wednesday, 11 May 2016? A. I am not sure. What does it say? Q. Well, the date that you served the subpoena, correct? A. Oh, the subpoena, yes. The 11th, I think. Q. And then over the page the next text message appears to be from yourself saying "walking out the door now". Do you see that? A. I do. Q. Do you recall sending that text? A. I don't recall sending it, no. It is a very long time ago. ... Q. You don't agree it is the same day? A. I agree both says "Wed". I can't give you a definite answer because I don't recall if it was the same day. … Q. If we go to the next page, the next message we see is "walking out the door now", do you see that one? A. I do. Q. What I am suggesting to you is that there would most likely have been additional or further text messages between you and Ms Teale from the last one on the page on page 40 and the top message on page 41, do you agree with that? A. There would be additional text messages as stipulated by the Telstra records, yes. I cannot recall the conversation for you though. … Q. What I am suggesting to you is that this trail of text messages on page 40 indicate or suggest that you were arranging to meet up with Ms Teale at the end of your shift, would you agree with that? A. I am not sure. I can't recall if it was at the end of a shift or just arranging to meet up." (Emphasis added) 1. He was asked about the Personal Roster Report which he did not dispute. He was then asked: "Q. Would you agree with me, I will put this proposition, that on 11 May that you did work a shift of 3.00 to 11.30? A. I would assume so, yes, if there is nothing to say I didn't then I would have turned up for that shift. Q. Well, 11 May was the date that you served the subpoena, correct? A. Yes. … Q. The text message conversation which appears on page 40 of the tender bundle, that appears to indicate that you had served the subpoena by the time‑‑ A. Yes. Q. You agree with that? A. Yes. Q. That being around or at some stage before 5.00pm, do you agree with that? A. I can't remember the date that I served it. Whatever it says on the subpoena is the date I served it ‑ the time, sorry. Q. What I am suggesting to you is that the text message trail on page 41 of the tender bundle indicates or demonstrates you arranging to meet up with Ms Teale at the end of your shift on 11 May, do you agree with that? A. I can't agree or disagree on it, I just can't recall. Q. Can you, just looking at the text message trail on page 41, can you suggest any other explanation or‑‑ A. I can explain that it certainly looks like I am looking to meet Ms Teale, yes, but in the context of after work or any other rest day on a Wednesday or any other day I can't give you a definite answer." 1. These passages provide further examples of the applicant making admissions up to the limit of what he thinks he can get away with but no more. That is not consistent with his obligation of candour. 2. The Telstra log records approximately 43 events between 17.15 and 22.32. Even allowing for several of those to relate to single messages, there were clearly many exchanges between the applicant and Ms Teale during that night. Then the log shows SMS messages originating from the applicant to Ms Teale at 23.16, 23.29 and 23.30. According to the images in the Tender Bundle those times correspond with the following messages: * 23.16 – "Walking out the door now". To which Ms Teale replied "Haha yay". * 11.29 – "Is the front door unlocked?" To which Ms Teale replied "No but I can unlock it" and added an emoji. * 11.30 "Cool I'm at the door now" with an emoji 1. The next communication shown in the log from the applicant's phone is at 07.40 the following day. It is to Ms Teale. 2. I am satisfied that following the service of the subpoena the applicant and Ms Teale exchanged admittedly sexual messages, agreed to meet up after the conclusion of the applicant's shift and, if the sexual relationship did not commence that night, which is my strong view, it certainly began very soon after. 3. It strikes me as odd that the applicant has such difficulty recalling the circumstances which led, according to his evidence, to such a positive life change for him. I don't accept that the events occurred so long ago that he has no recollection of them. He was first interviewed in relation to these matters on 21 August 2016 – just 3 months later. He lied about them on that occasion and would have the Commission accept that he was racked with guilt and dwelt on them until his interview in December 2016 when he revealed, at least part of, the truth. He then had the s 181D process to keep these matters in the forefront of his memory. I conclude his lack of recollection is a convenient means of avoiding telling the truth. 4. It is worthy of note that the Telstra log shows more than 400 SMS events in the week of 9 – 16 May. The content of those messages is not known but I have no doubt they had nothing to do with normal police/witness business communications. Nothing in the evidence suggests otherwise. It reinforces my view that they were more than just friends at that time. It also supports the proposition that the applicant's inability to recollect important details is a means of avoiding telling the truth. The level of interaction between the two was significant and likely to have been recalled. Allegations 3 and 5 1. These allegations turn on the attendance at the residences of Ms Robinson and Ms Teale. Allegation 3 is not confined to a particular time period whereas Allegation 5 is specified to be limited to the period between May and October 2016. Having regard to the nature of the allegations it is reasonable to read them as limited to the same timeframe. 2. The applicant's answer to these allegations is that it was common practice and they were his residences as well. No evidence was led by either side as to the "common practice" at Dubbo Police Station. The applicant read statements from 4 other officers who say nothing about the "practice". The applicant submits nothing should be inferred from that, but it is the applicant who bears the legal burden of establishing the removal is harsh, unreasonable or unjust. The respondent only has to meet the applicant's case. True it is that, in paragraphs 39 and 41 of his statement, the applicant contends it is common practice and the absences were not unauthorised. The respondent has sought to meet that by a significant attack upon the applicant's credit rather than calling witnesses to positively establish the contrary. 3. The cross-examination revisited the question of where the applicant resided. He was asked: "Q. If, as your evidence is under oath? A. Yes. Q. That you lived alone at 1[/]1 Sterling Street, Dubbo? A. Yes. Q. From April 2016? A. Yes. Q. You understand that? A. Yes. Q. You gave evidence that Ms Robinson did not live there? A. Yes. Q. So the only person living at that address was yourself? A. Yes. Q. You gave evidence that your relationship with Ms Robinson finished towards the end of 2015 and maybe early 2016, do you remember that evidence? A. Yes. Q. So what I am suggesting to you is that when you have admitted and conceded that you attended a residence or Ms Robinson's residence from May 2016 onwards that was not your residence at the time? You are under oath? A. Is that a question? Q. Yes? A. I can't give an answer for what you are saying. When I attended Ms Robinson's address and then when I attended Amber Teale's address, those addresses were places that I resided at the time where I had my food and coffee which were attended by multiple police with me many, many times as I would go to their house and get food from their partner or their house or their kid's birthday. Q. Mr Lees, I want to suggest to you you are absolutely lying now in the witness box, what do you say about that? A. No. (Emphasis added) I simply note at this point the evasion in the applicant's highlighted answer. Following an objection suggesting the witness was confused I asked the following questions: "HIS HONOUR Q. Mr Lees, you understand that in your statement you appear to have made concessions that in the period May to October 2016 you visited the residence of Ms Robinson you say for refreshments? A. Correct. Q. Now, on your earlier evidence in the day, today, you told me that your relationship with Ms Robinson ended at the end of 2015, perhaps early 2016? A. Correct. Q. That is well before the period May of 2016 to October 2016, correct? A. Correct. Q. Do you say you were residing with Ms Robinson in the period May 2016 to October 2016? A. I wasn't residing with Ms Robinson during that time. Q. So if you visited her residence in the period May 2016 to October 2016 you were not visiting your residence? A. I was visiting Ms Robinson's residence. Q. Which was not your residence? A. No" (Emphasis added) 1. Mr Darams then focussed on paragraph 41 of the applicant's statement and Allegation 5. He asked: "Q. So then can I ask you to go to paragraph 41 of your statement. You attested to the truth of this statement when you got in the witness box today, didn't you? A. I did. Q. Paragraph 41 is not true, is it? A. Which part? Q. Well, can you not see that paragraph 41 is inconsistent with the evidence you have given earlier today and just most recently in answer to the Chief Commissioner's questions, can you not see that? A. Between the dates of May and October 2016? Q. Correct? A. I can see that. Q. Because it is not true that at any time that you visited Ms Robinson's residence in that period of time were you residing with Ms Robinson between May and October 2016? A. I would still have ‑ it doesn't appear to be true. There is context I wish to give but‑‑ Q. When you say "it doesn't appear to be true", it is either true or not? A. I was still good friends with Nicola at the time and that is what I wish to clarify. I wasn't residing there, no. Q. Do you want to say anything to this Commission about that evidence then? A. It was worded very badly and I can see how it appears incorrect, yes. Q. That is it? A. I still attended the address of Ms Robinson, that is still true. (Emphasis added) 1. Once again, when boxed in by his own evidence the applicant makes a concession but with a clarification which, having regard to the allegation, does not assist his case at all. It is another distraction. 2. Mr Darams then turned to the subject of Ms Teale's residence. The applicant at first acknowledged that he had attended Ms Teale's residence between May and October. He acknowledged serving the subpoena and attending while he was on patrol and for lunch and coffee. He denied he did that in May, June or July based upon his recollection. He said he could not give a date when he attended. Then he said he went "much, much later". He was then asked: "Q. When you say "much, much later" what are you talking about? A. Further months down the track. Q. What months please? A. Probably closer to August time. Q. Okay, so let's accept August because I am just trying to understand paragraph 41 because what you are saying to the Commission in answer to allegation five was that you accept you attended Ms Teale's residence between May and October 2016 whilst on duty? A. Yes. Q. You now, as I understand your evidence, are saying that you would have gone to Ms Teale's residence in August? A. Yeah, it would have been much, much closer to that date. Q. Okay, for lunch? A. Yeah, for lunch or a coffee and I have attended that address with colleagues as well, it wasn't anything‑‑ Q. Again, what I am suggesting to you is that in August at least 2016 that was not your residence at that time? A. There was a transition period between the end ‑ just before I moved in with Amber we would have considered ourselves a couple and we acted that way and I actually was at her house, you know, for lunches on patrol, as I have said. Q. You can't recall‑‑ A. No, I can't recall the dates of when that was. … Q. At no time before say mid‑October 2016 was Ms Teale's residence also your residence? A. I am not sure because I don't know what day I moved out of the Sterling Street address. Q. Well, I want to suggest to you the date that Ms Teale's residence then became your residence was around 15 October 2016, are you prepared to accept that or not accept it? A. I can't give you a definitive answer on when that was, sorry. Q. Maybe I will just cut to the chase. What I am going to suggest to the Commissioner in this proceeding is that your evidence in this proceeding is false, what do you want to say about that? A. No. I don't deny going to Ms Robinson's house or Ms Teale's house. I don't find that false. Q. Yes, I will be more specific. Your evidence in paragraph 41 where you say that when you did that it was also your residence is false, what do you say about that? A. I would say that is false. Q. Your evidence is false? A. No, I would say the way it is written is incorrect. I don't deny that I went to these addresses, that is of course true, we have passed that but the dates are hard to recall and they are also hard to write in a statement correctly so you can clarify them. (Emphasis added) 1. The applicant's evasion, prevarication and failure of recollection are again apparent when faced with the effect of his own evidence and its inconsistency. He, for the first time, introduces a "transition period" to provide a further means of obscuring the truth. His final retreat is to the difficulty of clearly expressing facts in a statement of evidence. Not the highest commendation one could pay to the training and experience of police officers. 2. Mr Darams then turned to the explanation that the breaks were authorised. It became another exercise in semantics. It is to be remembered that in paragraph 41 of his statement the applicant expressly stated: "…however the attendances were not unauthorised absences." Mr Darams asked: "Q. Just in relation to your justification or your evidence in response to allegations three and five is that every time you attended Ms Robinson's and Ms Teale's residences to have lunch or have refreshments or to have coffee you were on an authorised break; that is your case, isn't it? A. I never thought of it as an authorised break. I always thought of it as just a break. The word "authorised" is just something that has been plucked out of the air. Q. Well, hang on, who has plucked it out of the air? Have you plucked it out of the air? A. I have never considered my breaks to be authorised, no. They were just breaks that were given to all colleagues at work. Where we had them was never in question." 1. The applicant was asked why he had not advanced this position earlier for example in his response to the show cause notice. His answer was: "Q. Why didn't you put a fuller explanation or the explanation you now give? A. I could have put in a hundred things and made a hundred pages. I didn't know what was the most direct way of saying it and I said it this way. I don't say this is wrong in any way, I just say that is the way I put it then and that is the way I put it later when asked." 1. He suggested he may have provided the explanation in his directed interview with Inspector Dixon. When taken to his answer about taking lunch or coffee at these residences he was asked: "You never say to Inspector Dixon that you were on an authorised break? A. No, I didn't know the word "authorised break" existed, sorry" I simply note he didn't seem to lack understanding of the concept in his statement. In addition, in paragraph 39 of his statement he referred to being "on a lunch break or other rostered break". The word "rostered" connotes approved or authorised. 1. Counsel concluded his cross-examination on the Allegations in this way: "Q. See, I want to suggest to you that the Commission, and I am going to suggest the Commission should not accept just your explanation on these matters because you lack credit as a witness and can't be believed, what do you say about that? A. I say it is not true. Q. I am going to make some submissions to that effect to the Commission based upon the evidence that you have given under oath today and also by reference to your written statement and the matters that I have drawn to your attention and I am going to suggest that therefore the Commission shouldn't accept, unless there is corroborative evidence, that you were on breaks, what do you say about that? A. I have got nothing to say about that. Q. And then I am going to submit to the Commission that your case in relation to the challenges to allegations three and five cannot therefore be upheld or made good, what do you say about that? A. I have got nothing to say about that." 1. Before leaving this topic it is well to remember that the applicant, in relation to the incident in November 2014, admitted that he was "on duty" but offered in mitigation that it was during his lunch break (see [35]). In the course of his response to the show cause notice in this case he admitted having sex with a female "whilst … at work" (see [26]). His reliance on lunch or other authorised breaks seems to have the advantage of hindsight. Ms Cornish 1. The last matter covered in cross-examination concerned the evidence of Ms Cornish. The applicant recalled a conversation in which he suggested Ms Cornish or another General Assistant deal with the person at the counter but did not recall swearing. He said he and Ms Cornish were good friends and could think of no reason why she would be untruthful. Later he specifically denied the words Ms Cornish said he used to her. He agreed, if the context was as Ms Cornish described, to swear in response would be unacceptable. He accepted that she was offended and said he apologised immediately because he could see that she was visibly angry. He had no recollection of her swearing at him. Mr Darams again said to the witness that he intended to criticise his credit and the witness again had nothing to say about that. 2. There was no re-examination The Respondent's Case 1. The only witness called by the respondent was Ms Cornish. She gave evidence in chief through a statement and was cross-examined. Her evidence was taken by telephone. 2. In her statement Ms Cornish said she: 1. was employed by the Police Force between January 2016 and May 2017 as a General Administrative Support Officer; 2. was stationed at Dubbo Police Station; 3. had a conversation with the applicant on 3 April 2017 in which he swore at her and used offensive language; 4. spoke to her manager about the matter on 4 April 2017 who advised her to put the details in a note to her; 5. drafted and signed the note on 5 April 2017 which she attached to her statement; 6. forwarded the note by email to her manager on that day; and 7. observed that she had incorrectly referred to the date as March rather than April. 1. The note, after setting the background of a member of the public seeking some assistance at the front counter, recounted the course of the conversation. It was in the following terms: "Me: Hey Leesy I have this gentleman at the counter and he has stated that his daughter was touched and his a bit upset that nothing has been done and he hasn't been in contact with the officer the officer in charge of the case is Trent at Victoria Park. Constable Lees: I'm sick of you lazy f**king GASO's palming shit off you and Jackie do this all the time. (He stated this in front of other officers in the kitchen area) I then follow Constable Lees to the counter and finished with my enquiry with the gentleman. Constable Lees explained the issue to the father about mental health Act and the Crime Act and how he wasn't in the right position. At this stage I was really upset that Constable Lees had spoken to me in that manner and in front of other officers. Once the father had left the station and the doors were close and no customers were out the counter I had told constable Lees: Me: Don't you ever f**king say that we are lazy and don't you ever f**king speak to me in that tone and not in front of other people! I come in here to help you we don't wear your uniform and badges and I defiantly don't know the crime ACT he wanted to know about! At this stage I was upset and didn't speak with Constable Lees for 10 minutes I felt that I wanted to collect my belonging and go home being spoken to like that. He then turned around and apologised and stated that he had Jackie palming work loads of to him all day and he didn't mean to snap. I replied back ok." 1. Before cross-examination commenced Ms Cornish confirmed the correctness of her statement. 2. In cross-examination she: 1. disagreed with the suggestion that the applicant did not use any swear words with her; 2. did not agree he said something similar to "Can't you and Jacqui do it?"; 3. agreed that he used an abrupt tone; 4. agreed that she said the words set out in her note after the man had gone; 5. agreed that after she said those words the applicant apologised; 6. said no one had spoken to her about swearing; and 7. did not agree it may be possible she is mistaken about the applicant swearing at her. 1. There was no re-examination. 2. I accept Ms Cornish's version of the events where it differs from the applicant's account. 3. The balance of the respondent's case was documentary, being documents produced by the applicant under summons relating to his employment since removal, the Tender Bundle, the Telstra Log, the Personal Roster Report and the SAP page. The Submissions The applicant 1. Counsel noted the admission of untruthfulness and acknowledged the damage it does to the applicant's integrity. It was not however sufficiently serious to warrant his removal. The applicant had apologised. 2. Counsel argued that establishing precisely when the sexual relationship started "takes us nowhere". It is admitted, he said, it started before 6 June. The submission however ignores the implications for the applicant's integrity including in relation to his honesty and candour with Inspector Pietruszka and in his evidence before the Commission. 3. The Telstra Log, he accepted, is suggestive of contact beyond that of police officer and witness and had commenced on about May 9. However, he cautioned the Commission about drawing any other inferences or conclusions beyond that, noting that the content of the messages is not known. 4. Counsel pointed to the exchange of messages in the period from 8.15pm on 9 May and 12.28 am on 10 May then no message until 7.44 am on 10 May. He submitted the timing suggests they did not sleep together that night. I'm not at all sure that follows. But when attention is paid to the content of the messages sent on 11 May, which is known, and the pattern of messages on that day, there is a good deal more information available to enable conclusions to be drawn about what happened that night. The applicant's principal submission was that nothing can be drawn from the log beyond the relationship beginning to form from 9 May. For the reasons I have already set out at [92] – [104] I do not accept that submission. 5. Mr Ryan sought to deal with Allegation 2 and Allegation 4 together. He submitted as to the latter that there is only a perceived conflict on the basis that Ms Teale was not a material eye witness to the alleged assault. There was no real risk of an actual conflict. In my view that overlooks what Ms Teale heard. Her evidence may well have been corroborative of the prosecution's case in a contested hearing. Such evidence may have been undermined by an attack on the credit of Ms Teale based on her relationship with the applicant. There was a conflict. In any event, the applicant was not in a position to be making those sorts of judgments. It is clear he has a vested personal interest in taking that view. That in itself is a conflict. His obligation was to draw the situation to the attention of his superiors and allow them to make a decision. In the end Counsel acknowledged a conflict but, he submitted, only a minor one. 6. In relation to Allegation 2 he submitted there was: no "real misuse" of position or authority; no preying on a vulnerable witness; no imbalance of power; and no real misuse of personal information. Counsel submitted if the applicant had approached Ms Teale after the court case was concluded there would be nothing inappropriate about it. The primary difficulty with that submission is that it is not based in fact. Secondly, it may well depend on how the approach was made. Using a mobile phone number obtained in the course of duties is quite different from a casual encounter in the street. The first is using private information obtained for a professional purpose for a private purpose. The latter is a chance public meeting. The applicant has used the information he obtained in his official capacity to advance his personal interest. That is a misuse of his position. 7. Allegations 3 and 5 concern alleged absences from duty leading to neglect of duty and misuse of resources. Counsel submitted that all the applicant did was duck into his home for food now and then. On the issue of his home Counsel suggested that the applicant may have been confused, particularly in his evidence about Ms Robinson, by the time frames ultimately pressed. His original admission of popping into Ms Robinson's residence for food or coffee was not confined to a time frame. He accepted the same cannot be said about Ms Teale. Nevertheless he submitted the Commission should be cautious about drawing adverse inferences about the applicant's credit based on his evidence in relation to residence. 8. It is apparent I found the applicant's evidence lacking in credibility. I do not accept he was confused other than by the web of inconsistent half-truths he sought to advance to excuse or mitigate his behaviour. In the end he said he called into Ms Robinson's residence in the nominated period and it was not his residence at the time. 9. The applicant submitted there was no misuse of police resources. Counsel noted there was no evidence to suggest that the applicant was called upon and failed to respond or responded late. The latter proposition is true. I am however, compelled to find this allegation sustained. There is no doubt the applicant visited the residences from time to time in the relevant period. The visits were not for official reasons. Absent evidence of authority expressly, or even impliedly, given for the applicant to divert from his duties to make these visits there is no conclusion open other than a misuse of police resources and neglect of duty. There is however nothing in the Commissioner's reasons or in the evidence to indicate the degree or seriousness of these matters. 10. Counsel submitted that the incident involving Ms Cornish was a "minor workplace tiff" for which the applicant had immediately apologised. He submitted that should have been the end of it. However, the applicant was on an IRMP at the time and claims to have learned from his mistakes. As the Commissioner pointed out in his reasons, the applicant has had a number of chances to demonstrate a capacity for self-discipline and an ability and willingness to place his own interests as secondary to those of his role as a police officer. The exchange with Ms Cornish was another example of that lack of self-discipline and an example of it having an adverse impact on a work colleague. 11. Mr Ryan then made a number of brief submissions questioning the relevance of various references in the Commissioner's reasons to legislation and policies. There is merit in the submissions that the legislative and policy references may sometimes be less than obvious but I do not agree they are irrelevant. Some are more directly related to the particular allegation than others and therefore assume a higher degree of importance. By way of example in relation to the first allegation, that of lying to Inspector Dixon, there were several paragraphs of s 7 of the Police Act referred to. They were paragraphs: Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, … (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly. 1. Mr Ryan questioned the relevance of paragraphs (g) and (h). While the first two paragraphs may be of greater significance than the last two, I perceive them to be relevant. No doubt the Inspector's time and other resources are wasted by reason of falsehoods being advanced. There would have been little need for the second investigation if the applicant had been candid the first time round. In relation to (h), the lie was designed to hide or obscure a misuse of authority. 2. I do not propose to deal with each of the matters questioned by Counsel in this way. Suffice to say that the references, while relevant, vary in their significance. 3. In relation to the Commissioner's conclusions, Counsel submitted that it was harsh to conclude that the applicant was still not conducting himself with complete candour and serious questions as to his integrity arise. He submitted there was "no pattern of dishonesty". It will be apparent from these reasons that I reject those submissions. The applicant was not completely candid at any point in the investigation. Counsel accepted that the dishonesty persisted in the period between the two investigations. Moreover, his evidence before the Commission was lacking in candour and served to reinforce the Commissioner's conclusion. 4. Counsel also submitted it was unreasonable to accept some matters raised by the applicant, such as his attendance at the residences, but reject others, such as his stated reasons for those attendances. I observe that admissions are credible because they are contrary to the interests of the person making them. Exculpatory statements are in a different category. There is nothing unreasonable about accepting the former and rejecting some or all of the latter. Further the Commissioner has not relied upon the reasons for the attendances against the applicant. It is the lack of authority that is of concern. 5. Counsel challenged the statement of the Commissioner that the applicant's conduct may have jeopardised a successful prosecution. Again for reasons I have already given at [131] I reject that submission. 6. Next it was submitted there was no basis for the Commissioner to conclude that a pattern had emerged of the applicant placing his interests above those of the police force. For the reasons already given I reject that submission. 7. It was also submitted that the Commissioner failed to take into account that there are no real issues with the applicant's actual police work. The Commissioner did, however, have regard to these matters. He said: "While you may be very adept at other elements of your policing work, no amount of skill can excuse or mitigate misconduct of this nature." When this was drawn to his attention Counsel submitted that the Commissioner had failed to give it sufficient weight. 1. Counsel submitted in summary: "Taking into account the issues I've raised, it is my ultimate submission that this officer's removal was incredibly harsh and it was incredibly harsh to dismiss a young, talented officer for essentially starting a relationship with Ms Teale too soon and then lying to Inspector Dixon about it. True it is the lie raises questions about Mr Lees' integrity, but it is the only instance of his dishonesty during his four years and eight months as an officer. 1. Mr Ryan acknowledging the public interest in a police force staffed by people of integrity but submitted that the public interest was also served by giving a "young, promising officer a chance". The respondent 1. Mr Darams submitted that there was no dispute about Allegation 1 and it was sufficiently serious by itself to justify removal of the applicant from the Police Force. 2. In relation to Allegation 2 he submitted that all of the objective evidence in the case forced only one conclusion; that was that the relationship between the applicant and Ms Teale commenced by reason of the applicant's position as a police officer and more particularly by his use of information obtained in his role as a police officer to make and sustain contact with her. 3. In connection with Allegations 3 and 5 Counsel pointed to the failure of the applicant to advance to the Commissioner the explanation that he relies upon in this case, that is, that he was simply popping in to his home to have or obtain lunch or have coffee. He relied upon the incident, 14 months or so earlier, when the applicant had sexual intercourse whilst on shift, in uniform and using a police vehicle to make the rendezvous. That was an undoubted misuse of police resources, the applicant's time, and a neglect of duty. The applicant therefore had "form" and that was a matter the Commissioner could take into account. 4. The primary submission made by Mr Darams was that the evidence of the applicant on these matters should not be accepted unless corroborated in some way. In support of his attack on the credit of the applicant counsel referred to the admissions of dishonesty in relation to Allegation 1 and various examples of the flaws in his evidence in these proceedings to which I have already made reference. He rejected the argument that the applicant was confused. He also relied upon the conflict in the evidence between the applicant, who repeatedly denied swearing, and Ms Cornish who was clear and consistent in her evidence that the applicant did swear at her. In further support of the reliability of her evidence counsel referred to the contemporaneous note made by Ms Cornish. This conflict between the two witnesses provided another basis for finding the applicant to be lacking in credit. 5. Mr Darams also drew attention to the lack of evidence from work colleagues, Ms Robinson and especially Ms Teale to support his case that he just popped in for lunch or coffee. The applicant did obtain and rely upon statements from some work colleagues but none gave any evidence in relation to this alleged practice. The absence of Ms Teale was particularly significant given the stable loving relationship which now existed. If corroboration were available it could and should have been led. 6. In relation to Allegation 4 counsel submitted that the suggestion offered by the applicant that his failure to disclose the conflict of interest was in order to prefer the interests of the Police Force over his own had to be rejected. On the applicant's evidence there was no conflict and therefore no reason to keep the truth from Inspector Dixon particularly after the case was finalised. The evidence admits of only one conclusion; that the applicant was seeking to protect himself. 7. The respondent submitted there was a conflict of interest. Ms Teale at a contested hearing may have been able to give evidence supportive of the prosecution's case. 8. In relation to matters relevant to the issue of harshness the respondent submitted the applicant had: * a relatively short period of service; * a less than perfect record; * personal and economic circumstances which were unremarkable; and * been able to find alternative work of a kind he was doing before becoming a police officer. 1. The submission that the decision was unreasonable because the Commissioner failed to have regard to the applicant's response to the show cause notice should be rejected because: * the express terms of the Commissioner's reasons demonstrate that he had regard to the applicant's response to the show cause notice; * failure to accept a response does not mean it was not considered; and * nothing had been advanced to indicate that a different result would have ensued if different weight was attached to matters raised in the response, particularly having regard to the admission of Allegation 1. 1. As to the submission that the decision was harsh because of the failure to recognise or give sufficient weight to the applicant's contrition Mr Darams submitted that the applicant's evidence in cross-examination about the disclosures made to Inspector Pietruszka demonstrated that the applicant has not accepted his duty of candour and integrity. He would not have revealed his dishonesty but for the second anonymous complaint which prompted the second investigation. 2. In short, Counsel submitted the conclusions reached by the Commissioner were open and appropriate. 3. Finally, Mr Darams submitted the public interest supports the removal order especially in respect of an officer who "demonstrably lacks integrity". Conclusion 1. In discussing the evidence and submissions I have expressed a number of conclusions. In summary they are: 1. the applicant was evasive and lacked candour in giving his evidence [78], [83], [99], [104], [104], [107] and [111]; 2. in general, the applicant's evidence was unsatisfactory and demonstrated his lack of willingness to acknowledge and accept responsibility for his misconduct [80], [86], [87 ] and [134]; 3. the applicant admittedly lied to Inspector Dixon [82]; 4. the applicant was not completely honest with Inspector Pietruszka [88]; 5. the applicant met Ms Teale through his policing duties and commenced a sexually explicit SMS text message exchange with her within minutes of serving a subpoena, using the telephone number he obtained for official purposes [90]; 6. the first text message sent by the applicant to Ms Teale was on 9 May 2016. It appears to be connected, albeit elliptically, with his official duties [93] - [95]; 7. immediately following service of the subpoena 11 May 2016 there was a second exchange of text messages, some of which were explicitly sexual, through which the two agreed to and did meet at the conclusion of the applicant's shift [96] and [102]; 8. the sexual relationship began on or about 11 May 2016 [102] and [130]; 9. the applicant had a conflict of interest between his role as a police officer with carriage of a criminal prosecution and his personal interest in engaging in the sexual relationship with a witness in that case [131]; 10. the applicant misused his position as a police officer by using information obtained in the course of his duties to advance his personal interest [132]; 11. the applicant misused police resources and neglected his duty when visiting the residences of Ms Teale and Ms Robinson in the period between May 2016 and October 2016 [135]; 12. the exchange between the applicant and Ms Cornish was an example of the applicant's lack of self-discipline and of that lack of self-discipline having an adverse impact on a work colleague [136]; 13. the references by the respondent to various items of legislation and policy in the course of his reasons were not irrelevant although the weight to be attributed to the references varied considerably [139]; 14. the respondent's conclusions; 1. as to the applicant persisting in failing to conduct himself with complete candour; 2. that serious questions as to his integrity existed; and 3. there was a pattern of dishonesty on the part of the applicant were not harsh [140]; 1. the lack of candour in the applicant's evidence before the Commission reinforced the respondent's conclusions [140]; 2. it was not unreasonable for the respondent to rely upon the applicant's admissions but reject exculpatory statements by him [141]; 3. the respondents conclusions that; 1. a pattern had emerged of the applicant placing his interests above the police force; and 2. that his conduct may have jeopardised a successful prosecution were soundly based [142] and [143]; 1. the respondent had not failed to take into account evidence of the otherwise satisfactory performance of the applicant's work, [144]. 1. These conclusions sustain the respondent's findings. The findings as to misuse of police resources and neglect of duty by themselves would not support removal. Contrary to the submission of the respondent, even the fact of lying to Inspector Dixon, by itself, would not justify removal if one accepted that the applicant admitted his misconduct and apologised for it at the earliest opportunity. Regrettably I am not able to conclude that the applicant did that. While I am prepared to accept that he apologised to the Inspector, he did not do so at the first opportunity and did not do so until after the second directed interview. 2. Moreover, the applicant did not tell the whole truth to Inspector Pietruszka. He continued to dissemble so as to avoid conclusions that he had a conflict of interest between his role as a police officer and his relationship with Ms Teale. That dissembling persisted in his responses to the respondent and in his evidence before the Commission. 3. The character evidence led by the applicant is so confined that it cannot be given any significant weight to contradict the findings I have made. The witnesses' observations are confined, as they must be, to their personal observations. They do not attempt to explain the applicant's admitted and alleged behaviour. They provide no support for the applicant's contention that calling in to one's home, or somebody else's, for lunch or coffee without authorisation is common practice. Their evidence does support the contention that the applicant can perform the duties of a police officer. 4. The applicant's dishonesty and lack of candour, persisting as it did, provide ample justification for the respondent's decision to remove him from the Police Force. That is reinforced by the applicant's willingness to place his personal interests above those of the Force. 5. I find that the economic consequences which flow from the applicant losing his employment as a police officer do not make the decision of the respondent "harsh" so as to justify his reinstatement. The applicant's disciplinary history should have provided ample notice to him that he needed to put the interest of the Police Force first and diligently apply himself to his duties. He has had his second chance already. 6. Finally, I have given consideration to the applicant's contention that his poor decision making was largely due to his marriage breakdown. There are several reasons why I cannot give that evidence any significant weight. Primarily, the applicant's evidence is not corroborated in any way. No medical or counselling evidence was led to support the propositions he advanced. Given my assessment of him as a witness I cannot ascribe any significant weight to his evidence without corroboration. Secondly, the events here in question occurred some four years after the separation from his wife and two years after the divorce. The proximity of those events to the November 2014 incident may have had some impact mitigating the punishment applied at that time, but they are quite remote from the circumstances here. 7. I accept the respondent's submission, which the applicant did not dispute, as to the public interest in the Police Force being staffed by persons of integrity. The applicant has failed to demonstrate that he understands that obligation and all that it requires of a police officer. 8. I find that the applicant's removal was not harsh, unreasonable or unjust. Order 1. I dismiss the application. ********** 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: 12 July 2019