Todd v Commissioner of Police [2019] NSWIRComm 1048

Industrial Relations Commission New South Wales Medium Neutral Citation: Todd v Commissioner of Police [2019] NSWIRComm 1048 Hearing dates: 5, 6 and 7 June, 11 July, 29, 30 and 31 October, 1, 5, 6, 7 and 8 November 2018, 27 May 2019 Decision date: 07 August 2019 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by James Todd for review of the order removing him from the NSW Police Force is dismissed Catchwords: POLICE – removal of police officer – s. 181D Police Act 1990 – review under s.181E Police Act – allegations of misconduct and/or poor performance – mental health issues – medical evidence inconclusive – application dismissed Legislation Cited: Police Act 1990 Cases Cited: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Category: Principal judgment Parties: James Todd (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr G Doherty (Applicant) Mr M Seck (Respondent) Solicitors: Mr P Walter, Walter Madden Jenkins, Solicitors (Applicant) Ms E Baxter, K&L Gates (Respondent) File Number(s): 2018/00023893

DECISION 1. On 6 September 2017, the applicant, James Todd, then a serving Police Constable, was served with a notice pursuant to subsection 181D(3)(a) of the Police Act 1990 which contained 10 separate allegations of misconduct and/or poor performance. The applicant provided the respondent, the Commissioner of Police, with a detailed written response to the allegations on 17 October 2017. On 10 January 2018, the applicant was served with an order made pursuant to subsection 181D(1) of the Police Act which removed him from the NSW Police Force. The applicant has applied to this Commission for a review of the removal order pursuant to section 181E of that Act. 2. The hearing of this matter occupied thirteen days spread over a period of twelve months. In addition to the applicant, evidence in support of the application was given by the applicant's wife, Tamara Todd, Dr Paul Friend, Senior Constable Jason Maybury and Christopher Leeson, former colleagues of the applicant. In opposition to the application, the respondent called the following witnesses to give evidence: * Leading Senior Constable Shannon Gates * Inspector Peter McLay * Sergeant Nicholas Brunyee * Leading Senior Constable Nicole Shaw (formerly Harmer) * Leading Senior Constable Brad Hallam * Inspector Paul Hugget 1. In these reasons for decision and in the extracts from the documents reproduced herein I have substituted the initial of the surname for the full name of persons outside of the NSW Police Force who were involved in the various matters which formed the basis of the various allegations against the applicant which ultimately led to his removal from the Police Force. 2. Below are set out relevant extracts from the respondent's Statement of Reasons which accompanied the removal order: Background to LMl1601425 On 31 March 2016, Leading Senior Constable Nicole Harmer was performing duties as the Custody Manager at Wagga Wagga Police Station. She says she needed urgent assistance with a prisoner and she required an ambulance. CCTV footage shows that at 4.59pm Leading Senior Constable Harmer checks the cells and then makes a telephone call. Leading Senior Constable Harmer says she called the supervisor's office and you answered the telephone. She says you have the following conversation: Harmer: "Toddy, call an Ambulance. I need urgent assistance. I've got a guy that's collapsed and I need someone to enter the cell with me." You: "I will come down." Sergeant Paul Huggett recalls you answering the telephone at that time. After you finished the call he says you told him something similar to "Nicole needs a hand in the charge room. So I will go down and help''. He says you did not indicate that the request for assistance was urgent. Leading Senior Constable Harmer says she waited several minutes but you did not appear. CCTV footage shows that at 5.04pm she makes another telephone call. She says she spoke with Sergeant Huggett. She repeated to him that she needed urgent assistance, and an ambulance, because a prisoner had collapsed. Sergeant Hugget recalls that when he answered the telephone, Leading Senior Constable Harmer asked him "Where is Toddy and my ambulance". He responded, "Isn't he down there with you and I don't know about an ambulance". Leading Senior Constable Harmer recalls Sergeant Huggett telling her that he thought you were 'down there' with her. She replied that you were not. Sergeant Hugget went directly to the charge room. He says he asked someone to call an ambulance and yelled for other officers to make their way to the charge room. He then assisted in moving two prisoners from the cell area to the dock. CCTV footage shows that at 5.05:22pm Sergeant Huggett and others enter the cell complex. At 5.05:56pm the footage shows you arriving. Sergeant Huggett says you looked 'shocked'. Leading Senior Constable Harmer says you appeared in the cell complex smelling strongly of cigarette smoke. Sergeant Huggett says he spoke to you on 1 April 2016. He asked you to explain your actions. He says he has the following conversation you: You: "Nicole rang up and told me that a person had or was attempting to hang himself in the charge room and that she needed assistance to check on him." Huggett: "What did you do then?" You: "I went outside for a smoke.'' Huggett: "Talk me through this decision to help me understand why you went for a smoke instead of helping your mate out in the charge room." You: "I just didn't think it was that serious, so I went for a smoke." In your report dated 1 April 2016, you admit you spoke to Leading Senior Constable Harmer. You say she told you that a male was in the custody room and was attempting to tie his jacket around his neck. You state that you told her you would attend the custody room 'shortly'. You also state that you told Sergeant Huggett that ''someone is playing up in the custody area", although you say you do not know if Sergeant Huggett heard you. You admit you then went outside to the rear car park area to have a 'smoke'. You say you returned to the custody area about two minutes later and saw several officers removing a person from the cells and placing them in the dock. You say that you realise your actions put the safety of your fellow officers and the health of the person in custody at risk. You state you have no explanation for your actions and submit you made a grave mistake. Response In your Response, you admit the allegation and apologise for your behaviour. You are unable to explain your actions, but say it was out of character. You refer to difficulties in your personal life and say you were extremely distracted from performing your duties. You further say you have agonised over your lack of action and your confidence in doing your job was shattered. You say you will never act the same way again. You say you have now sought the assistance of the Employee Assistance Program. Allegation 1 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 31 March 2016, after receiving a call for assistance from a senior colleague to assist with a person who was in custody, you went for a cigarette (smoke) before attending the custody room. In the circumstances, I conclude that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the Work Health and Safety Act 2011 and the NSW Police Force Code of Conduct and Ethics. 1. The Statement of Reasons then set out a number of further adverse findings against the applicant. These were: Allegation 2 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to personally serve an Application for an Apprehended Domestic Violence Order on Mr C. In the circumstances, I conclude that your conduct was contrary to the and the NSW Police Force Code of Conduct and Ethics, the Domestic and Family Violence Standard operating Procedures, the Crimes (Domestic and Personal Violence) Act 2007, and the Local Court Rules 2009. …………………………………… Allegation 3 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you falsely recorded in the Statement of Service that you had personally served Mr C in circumstances where you had left the Order with another person. In the circumstances, l conclude that your conduct was contrary to s7(a) of the Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegtion1. ……………………………………… Allegation 4 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you should: • not have charged Mr H with an offence under s 527C(1)(a) of the Crimes Act 1900; • have charged Mr H with an offence under s 527C(1)(c) of the Crimes Act 1900; and • have filed the Court Attendance Notice with the Local Court prior to 3 December 2015, and before the six-month limitation date. I find that your alleged conduct has resulted in the matter becoming statute barred and the prosecution failing. I further find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to properly investigate the matter. In particular, you: • did not seek assistance regarding the appropriate action to take against the person of interest; and • failed to follow the guidance provided to you to interview the person of interest yourself. In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to s 7(e) of the Police Act 1990 (as set out above in relation to Allegation 1), Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics (as set out above in relation to Allegations 1 and 2), the Criminal Procedure Act 1986 and the Police Handbook. …………………………………… Allegation 5 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you have failed, over a substantial period, to meet the expected standards of performance and competence of a Constable of police. Your deficiencies appear to include poor work and time management; a lack of attention to detail; poor operational skills; an inability to plan and organise effectively; poor management and investigation of incidents; and poor technical and professional knowledge. ln the circumstances, l conclude that your conduct was contrary to section 7 of the Police Act 1990, the Police Regulation 2015, and Points 1, 2 and 3 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegations 1 and 2. Allegation 6 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to prepare timely and / or satisfactory criminal briefs of evidence in the matters of H, L and Hi... In the circumstances, I conclude that your conduct was contrary to the s 7(e) of the Police Act 1990, and cl 8 of the Police Regulation 2015 as set out above in relation to Allegation 1, Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics as set above in relation to Allegations 1 and 2, the Brief Preparation Guide, and the NSW Police Force Handbook. ……………………………………… Allegation 7 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 7 December 2016 you: • failed to include all relevant information reported to you by Ms A in the CAD message, in particular that her ex-partner was the subject of an ADVO; and • chose to limit the information you recorded in the CAD message in order to give the impression the matter was a 'property report'. In the circumstances, I conclude that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, and the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. Furthermore, I conclude that your conduct was contrary to the Domestic and Family Violence Standard Operating Procedures… …………………………………… Allegation 8 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that in your statement dated 13 December 2016 were untruthful, or at the very least misleading, when you stated: • it was you who updated the CAD job at 10.19pm; and • that you did so after checking COPS to confirm an enforceable order was in place, in circumstances were a COPS audit shows that you did not conduct the searches into Ms A and Mr M until 10.20pm and 10.22pm. In the circumstances, I conclude that your conduct was contrary to s 7(a) of the Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. Allegation 9 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that during your record of interview on 3 March 2017 you were untruthful, or at the very least misleading, when you stated: • About 10pm A contacted the station for the second time where she gave me some more information. She told me that there was an AVO. I then conducted checks to confirm that there was an AVO. I updated the CAD job with that information. In the circumstances, I conclude that your conduct was contrary to s 7(a) of the Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. ……………………………………. Allegation 10 After considering your response to this Allegation I am not satisfied that you failed to promptly create the CAD message and I make no adverse finding in that regard. However, I find that you did not obtain any details from the informant. In the circumstances, I conclude that your conduct was contrary to Point 2 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. 1. The Statement of Reasons continued as follows: Response In your Response, you refer to your family history highlighting that your father and older brother are sworn officers in the NSW Police, and your mother is civilian communications officer. You believe you would be an excellent police officer, referring to your experience in the Royal Australian Navy. You state you are a qualified mechanic. You draw attention to the complimentary remarks you have received during your career. You submit that you made several mistakes that do not amount to misconduct. You admit you did not give your full attention to your duties, and state the content of the Notice does not represent a true view of your performance. You state you have not been treated with respect in the handling of the complaint investigations. You attach to your Response three statements from current and former colleagues. They say your conduct was out of character, and describe you as a professional police officer who takes pride in his work. You have provided two reports from Josephine Cannon, Counselling Psychologist, dated 4 August 2017 and 10 December 2017. She reports that you commenced psychological treatment with her on 30 March 2017 where you presented with depression in the mild range. She reports that you began to relate your policing experiences and the complaints against you. On 3 May 2017, she says your depression and anxiety was in the extremely severe range. She advised your treating doctor that you possessed symptoms consistent with posttraumatic stress disorder. Consideration As set out in the Notice, I am very concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. You have failed in that regard. I expect you to understand the requirements of the NSW Police Force Code of Conduct and Ethics and the need to always comply with it. You should clearly understand your responsibilities under legislation, policies and procedures. The findings I have made above demonstrate that you have failed in your obligation to act with care and diligence when on duty, and demonstrate an ongoing inability to abide by matters of fundamental importance. In relation to Allegation 1, any officer who seeks operational assistance from a colleague is entitled to expect that assistance will be promptly provided. This is particularly the case where assistance is sought on an urgent basis. The evidence shows there was a concern for a member of the public who was in police custody. Indeed, on your own version you say you were told that a male person was in custody and was attempting to tie a jacket around his neck. I am dismayed by your decision to go outside for a cigarette rather than provide immediate assistance. I take into account that you say you made a grave mistake. I have considered your Response, in that you say you were distracted from performing your duties and your conduct was out of character. However, your conduct amounted to a neglect of duty and I do not accept that you were so distracted from your duties that you did not understand the nature of the request for assistance. I am satisfied that you have failed to uphold your oath of office to discharge your duties faithfully. In relation to Allegations 2, 3, 4, 5, 6, and 7, I find that you have repeatedly failed to act according to the minimum standards of diligence and commitment reasonably expected from a professional police officer. You have repeatedly failed to comply with basic NSW Police Force policies and procedures. In relation to Allegation 2, your inability to follow basic process is unacceptable. It is incumbent upon you to ensure you are aware of the policies, procedures and guidelines that govern your duties. As you should be well aware, the NSW Police Force is committed to reducing incidents of domestic violence. There are clear policies and legislation in place regarding the service of AVO applications. I have considered your Response and I remain alarmed that you believed you could serve the document on a third party. As a minimum, l would expect you to realise your error when you recorded that you served the application personally, knowing this was not the case. Instead, you have falsified the service record. In your Response, you fail to demonstrate any insight into your behaviour and blame the use of a pro-forma statement of service. However, this should have further highlighted to you that you had not personally served the document. Even on your own account you should have immediately taken steps to remedy the actions you took. Instead, you were happy for the statement of service to reflect false information. Regarding the circumstances that give rise to Allegation 7, you have omitted critical details from the CAD message. I do not accept that you were not told about the existence of an ADVO. I accept Leading Senior Constable Gates spoke to you about the omission of this fact and you told her it made the CAD job easy to write off. Indeed, Sergeant Hallam also heard you say this. Your conduct adversely impacted upon response times, and could have placed a person protected by an ADVO at risk. I accept that your original CAD message described a domestic type situation. Nevertheless, your behaviour in not stating an ADVO was in place is unacceptable. A failure to comply with such basic procedures has the potential to cause serious detriment both to vulnerable persons, as well as to the reputation and integrity of the NSW Police Force. Your approach in relation to Allegation 4 adversely impacted upon the administration of justice. Not only did you select an incorrect charge, the matter became statute barred. I take into account that you did make a number of enquiries throughout the investigation. However, you did not follow all the advice and guidance that was provided to you, such as making an application to interview the person of interest yourself. The evidence shows that you have failed to act according to minimum standards of diligence and commitment reasonably expected from a professional police officer. Allegations 5 and 6 also demonstrate that you lack the skill and attention to detail required to perform the most basic tasks. I do not accept your assertion in your Response that you were not afforded the opportunity to improve your competence and performance. I take into account that you say you were occasionally able to function to the required standards and I understand that you say your failings are partly a result of your reaction to your own conduct as set out in Allegation 1. However, I am satisfied every effort has been made to assist you reach and maintain the expected standards of competence and performance. You were provided with the assistance of several officers, each of whom put in every effort to assist you improve. I take into account the feedback from your colleagues and supervisors. You were spoken to on many occasions and advice and assistance was both given and offered. Despite this, you have failed to reach and maintain the standards required. I take into account your assertion in your Response that you do not feel you have failed over a lengthy period. However, your conduct as set out above occurred throughout 2016. I am satisfied that you have consistently failed during that period to meet the standards expected of a sworn police officer. Ensuring that the NSW Police Force maintains the confidence of the public is one of the highest priorities. There are very real and practical dangers in a police officer not being able to properly prepare a brief of evidence, or satisfactorily and accurately record the incidents they are involved in. The evidence suggests that you lack the competence to be police officer. Allegations 8 and 9 show you have repeatedly provided false or misleading information. I have considered your Response and your contention that you assumed you had created the updated CAD message. While I accept that the message was updated under your profile, the evidence demonstrates that the message was created by Leading Senior Constable Gates and not you. I do not accept that when you drafted your statement six days after this incident you believed you had taken and created the updated message. Your actions show you tend to be less than fully frank, or at the very least misleading, in your communications. As a police officer, you should be acutely aware that the public are entitled to expect that you will behave honestly, and with care and diligence in the performance of your duties. The proper performance of your duties requires the highest standards of integrity and it is critical when dealing with members of the public, your colleagues, and allegations of criminal activity. In the circumstances, I am unable to rely upon your integrity as a police officer if you were to perform policing duties in the future. In relation to Allegation 10, after considering your Response, I make no adverse finding regarding the time taken to place the job on COPS. Nevertheless, you failed to take details of the informant and I consider this is another example where you have failed to act with care and diligence. You have repeatedly failed to follow NSW Police Force policies and procedures, and failed to always comply with the NSW Police Force Code of Conduct and Ethics. Your actions demonstrate a lack of understanding of your obligations as a sworn member of the NSW Police Force. In 2014, when you were a Probationary Constable, you were served with a Warning Notice following findings that you neglected your duty and entered false information on the COPS. This should have put you squarely on notice of the standards of conduct expected. Given your prior history, and your repeated failures, I do not accept your conduct is out of character. I have carefully reviewed all the material associated with this matter, and have considered the character evidence you have provided. I have considered the reports of Ms Josephine Cannon, Counselling Psychologist. I accept policing can be challenging. However, I am not satisfied that your psychological state justifies your behaviour, or caused you to act in the manner that you did. I also take into account the complimentary remarks, and the details of your career history within the NSW Police Force, as supplied by you in your Response. However, given the magnitude of your misconduct and the extent of your failings, I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I expect and the law demands that NSW Police officers will uphold their solemn Oath of Office at all times. Our Oath requires all NSW Police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the NSW Police Force Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the NSW Police Force. I therefore remove you from your position as a police officer.