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. Background 1. The applicant joined the NSW Police Force in September 2011. At the time, his father and one of his brothers were serving police officers. His mother was working as a Civilian Communications Officer in the Police Force. 2. The applicant completed his initial training in August 2012 and was posted to Wagga Wagga police station as a General Duties Officer. 3. On 18 August 2014 the applicant was issued with a Commander's Warning Notice pursuant to subsection 173(2)(d) of the Police Act following findings that he entered false information into the COPS database and that he had neglected his duty by not following recommendations made by supervisors to conduct a number of investigative enquiries. 4. The applicant completed his period as a Probationary Constable on 21 August 2014. 5. On 17 April 2015 whilst on duty, the applicant, together with Senior Constable Kaye-Mahon, attended a fatal multi-vehicle collision on the Sturt Highway near Yarragundry. An 18-year-old woman was killed in the collision. There was a baby seat in the back of the car and the police officers thought that a baby had been ejected during the collision and was lying, perhaps alive and injured, nearby. The applicant participated in a line search but no baby was found. The applicant then went to the hospital and guarded the body of the dead woman until her identification was finalised. The applicant claimed that he had been badly affected by this experience. 6. Following complaints against the applicant during 2016 which would ultimately form the basis of the removal of the applicant from the NSW Police Force, he was suspended on full pay from 28 December 2016. 7. The applicant commenced seeing Josephine Cannon, Counselling Psychologist, on 30 March 2017 and was diagnosed as suffering symptoms consistent with the presentation of Post Traumatic Stress Disorder (PTSD). 8. In his response to the section 181D notice containing the 10 allegations against him the applicant: * admitted Allegation 1 and sincerely apologised for his behaviour; * admitted Allegation 2 and apologised for his behaviour; * denied Allegation 3; * admitted Allegation 4 and apologised for his behaviour; * admitted Allegation 5 and apologised for his behaviour; * admitted Allegation 6 and apologised for his behaviour; * denied Allegation 7; * denied Allegation 8; * denied Allegation 9; and * denied Allegation 10. 1. The applicant did not accept that the allegations which he admitted constituted misconduct. The applicant also claimed that, due to having been suspended and factors relating to the complaints against him, he had been assessed by his General Practitioner and Psychologist as suffering from PTSD symptoms and anxiety. He supplied the respondent with two reports from his treating psychologist. The Warning Notice – August 2014 1. As stated at [9] above, on 18 August 2014 the applicant was issued with a Warning Notice. At the time the applicant was still a Probationary Constable. He was warned that any serious misconduct in the future could result in further management action, including removal from the NSW Police Force. 2. Although no direct evidence was led by the respondent as to the circumstances which led to the issuing of the Warning Notice, it was referred to in the respondent's Statement of Reasons and in the evidence of Inspector McLay. 3. It was submitted on behalf of the applicant that the issuing of the Warning Notice was non-reviewable action and he denied that he deliberately falsified records or that he created inaccurate records with any intent to mislead or deceive. The applicant's submission stated: 81. In this case, given the absence of evidence from the respondent that would enable the Commission to form a view about the reasonableness of the warning notice and the facts and circumstances grounding it, it was procedurally unfair and is now unfair on the merits review for the respondent to rely upon the prior conduct and prior warnings in the notices as supporting the applicant's removal. It is significant that the applicant's evidence going to the disputed facts grounding the issuing of the warning notice is not contested. 82. The respondent should not be permitted to rely on the warning notice to any extent but particularly to support a submission to the effect that the applicant had a history of: a. Entering false information into COPS; or b. Neglecting his duties. 1. I agree with this submission. In doing so I note that little, if any, weight appears to have been placed on this matter by the respondent in coming to the decision to remove the applicant from the force. I also note that three days after the Warning Notice was issued to him, the applicant was, on 21 August 2014, confirmed as a Constable. 2. In my consideration of this matter, I have placed no weight at all on the fact that the applicant was issued with a Warning Notice on 18 August 2014. The Allegations 1. I propose to deal with each of the allegations against the applicant in turn, setting out the finding made by the respondent, a summarised version of the applicant's case and the case for the respondent. In addition, I will set out my own findings with respect to the disputed matters in relation to each of the allegations. Allegation 1 1. The respondent's finding in relation to Allegation 1 was: 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. The case for the applicant 1. The applicant admitted this allegation and stated that he regrets his inaction and has been agonising over his casual attitude. He claimed that it was completely out of character for him to have acted in this way. He also gave evidence, which was supported by his wife Tamara, that his domestic circumstances at this time had "deteriorated badly". 2. The applicant claimed that, at the time of the call from his colleague, he understood that she was only asking for someone to assist or help her in the custody room. In his witness statement (exhibit 1) the applicant stated: 78. At the time of the call I understood Senior Constable Harmer was only asking for someone to assist or help her in the custody room. I did not understand her to be asking for urgent or immediate assistance. l did not understand her to be asking me to call for an ambulance or that one was needed. 1. The applicant further stated: 80. l thought I would have enough time to have a smoke prior to attending the custody room, as I did not consider there was any urgency in the call. 1. Exhibited to the applicant's witness statement was a written report prepared by the applicant on the day after the incident, 1 April 2016. Extracts from this report are set out below: About 4.30pm, I spoke to Senior Constable Harmer on the phone. She said that a male in the custody room was attempting to tie his jacket around his neck. I said that I have no further pressing work and would attend the custody room shortly, which she agreed to. I collected a copy of an ADVO and walked to the main station area and told the station GASO Clair, that a female would be attending shortly and that she was to be served the AVO. As I was walking out of the station area, I said towards the shift supervisor Sgt Huggett, 'I think that someone is playing up in the custody area' I do not know if he heard me when I said this. I then went outside to the rear car park area and had a smoke…. I realise in my actions that and following the conversation that I have had with Sgt Huggett, that I put the safety of my fellow officer and the health of a person in custody at risk. I have no explanation for my actions other then, I made a grave mistake of the situation and I did not respond correctly to the request. I have made a serious error in my actions, I should have notified the shift supervisor of the incident and attended the custody room immediately. 1. Also exhibited to the applicant's witness statement was a report of Sergeant Paul Huggett which was prepared on 2 April 2016. That report contained the following record of a conversation between the applicant and Sergeant Huggett which occurred the previous day: Todd stated similar to; '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'. I said, 'What did you do then' Todd said, 'I went outside for a smoke'. I said, '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' Todd said, 'I just didn't think it was that serious, so I went for a smoke' I said, 'how long were you outside for?' Todd said, 'Only a couple of minutes' I said, 'Have you ever been in a fight by yourself for a couple of minutes, waiting for backup? How long did that feel?' He said, 'Yep, a couple of hours' I said, 'is there anything going on in your life internal or external to the organisation affecting your decisions?' He said, 'No'. 1. The applicant's witness statement contained the following: 85. According to Sergeant Huggett's report in my discussion with him about the incident, I told him that during the phone call from Senior Constable Harmer she told me that a prisoner was attempting to hang himself in the charge room and that she needed assistance to check on him. ………………………….. 87. In my report, I stated that during the phone call Senior Constable Harmer stated that a male in the custody room was attempting to tie his jacket around his neck. 88. I was very distressed and shocked by the situation as I knew that I was being blamed for the delay in providing urgent help or assistance because that was what was being talked about. I felt shattered and my confidence was significantly eroded. I couldn't understand what was happening to me. 89. The situation is that I do not remember exactly how or when I first heard that the person in custody was trying to tie something around his neck. I have set out above what I believe I was told on the telephone by Senior Constable Harmer. 90. I believe that if I was told that a person in custody was trying to tie something around his neck or otherwise self-harm I would have told Sergeant Huggett immediately after I hung up the telephone and, I would have treated the need for help or assistance as being of utmost urgency. 1. The applicant's witness statement then set out the material which he had reviewed relating to this incident, including CCTV images of the custody room for 31 March 2016 as well as a report prepared by Senior Constable Harmer dated 7 April 2016 and the Custody Record for the prisoner that was made by Senior Constable Harmer to record her contemporaneous observations of the prisoner. The applicant's witness statement then continued as follows: 92. As a result of my review of the material referred to in the preceding paragraph, I now question whether or not the incident involving the prisoner that had attempted self-harm and was unconscious on the floor occurred before or after I spoke to Senior Constable Harmer. I raise this because if it occurred after my phone call it gives context to my decision that there was time for me to have a cigarette and that the request for assistance was not urgent. I know for certain that I would not have made a conscious decision to refuse or ignore the request for help. I made an error of judgment by giving priority to me having a smoke over attending the charge room. 93. I continue to admit the allegation. I failed to respond immediately to the request for assistance and I have a cigarette before attending the custody room. I accept that having a smoke no matter what the urgency of the request for help was unacceptable. 1. The applicant then went on to describe difficulties he was experiencing in his domestic life and stated: "With my personal life at home at the time, I can only say that I was extremely distracted from performing my duties". The case for the respondent Leading Senior Constable Shaw (formerly Harmer) 1. Annexed to the affidavit of Leading Senior Constable Shaw was a report prepared by her on 2 April 2016, which contained the following: On Thursday 31 March 2016 I was conducting duties as custody manager at Wagga Police Station. Throughout the day there were a number of prisoners held within the cell. In the afternoon I heard a loud thud come from the direction of cell 1 where prisoner D was lodged. I looked on the monitor and saw D was lying on the floor and not moving. I went to the cell door and called out to D who was not responding. He was moaning slightly. I was hesitant to enter the cell as D had just previously had a violent outburst. I made a telephone call to the supervisor's office to request an ambulance and urgent assistance. Constable Todd answered the telephone. I said to Constable Todd, "Toddy, call an Ambulance. I need urgent assistance. I've got a guy that's just collapsed and I need someone to enter the cell with me." I believe he said, "I will come down." I continued to monitor D at the door of the cell and call out to him. After at least two to three minutes Constable Todd had not arrived at the cell complex so I called the supervisors office again. Sergeant Huggett answered the phone and I said, "I need assistance down here to go into this guy that's collapsed and has an ambulance been called?" He said, "I thought Toddy was down there with you. Where is he?" I said, "I don't know, I thought he was coming." Sergeant Huggett said he would come straight down. Within less than a minute Sergeant Huggett came into the cell complex followed by a number of other Police. D was removed from cell 1 and placed into dock 1. After this occurred I saw Constable Todd walk into the cell complex. I could smell a strong smell of cigarette smoke on him and believed that he had been smoking directly prior to entering the cell complex. 1. After reviewing the CCTV footage of the custody room for 31 March, Leading Senior Constable Shaw prepared a further report on 7 April 2016, which contained the following: At around 16:50 hours I became concerned about the welfare of the prisoner in cell 1 as he was continually calling out he was unwell and no one cared etc. At 16:59 hours I made a phone call. I believe this call was made to the Supervisors Office which Constable Todd answered. I reported to him that I required assistance with the prisoner in cell 1. I may have also reported my ongoing concerns regarding the prisoner in cell 3. During this time I could hear verbal noises from prisoner 1. He was calling out that no one cared; he shouldn't be locked up etc. I believed he had been lying down for a period of this time. During this time I was also monitoring prisoners in cells 2 and 3 from the electronic monitors. My attention was drawn to the prisoner in cell 3 as he had previously just attempted self harm. At 17:04 I made a further phone call to the Supervisors Office as the prisoner in cell 1 was now not verbally responding and was lying in a position in the cell on the floor where I could not see him properly. I believe it was during this call that Sergeant Huggett answered and I asked where assistance was and had an ambulance being called. 1. In her affidavit, Leading Senior Constable Shaw stated: 14. A male prisoner was secured in cell number 1 (Prisoner D). During the day, Prisoner D had been yelling and screaming, repeatedly falling to the ground and claiming he was unwell and required assistance. When the door to the cell had been opened earlier in the day, Prisoner D had demonstrated violent behaviour towards another police officer. 15. For the reason set out at paragraph 14 above, I was not prepared to enter prisoner D's cell alone. When I determined that prisoner D required assistance, I immediately called the Supervisor's telephone as there was usually a Supervisor sitting at the desk. Mr Todd answered the call (First Call). 16. When I made the First Call, I believe I told Mr Todd that I required urgent assistance. When Mr Todd said words, to the best of my recollection, "I will come down", I formed the view that Mr Todd was on his way immediately to join me. …………………………. 21. I have read the Statement of James Todd filed in these proceedings (Todd Statement). …………………………. 23. In relation to paragraphs 78, 80 and 92, I say that I made it clear to Mr Todd during the First Call that I required urgent assistance. I do not agree that based on the words I stated to Mr Todd during the First Call that it was reasonable for Mr Todd to conclude that my request was not urgent. 24. In relation to paragraphs 85, 87, 89 and 90, I deny that I stated to Mr Todd during the First Call that a prisoner was attempting to hang himself. I did not say that to Mr Todd because as described at paragraphs 14 and 15 above, I required the urgent assistance to attend to Prisoner D. 1. Leading Senior Constable Shaw was cross-examined extensively as to what she said to the applicant during the phone call she made to him at 16:59 on that day. She was shown the CCTV footage from the custody room and questioned as to her actions both before and after she made that first call. Ultimately, Leading Senior Constable Shaw conceded that it was possible that the need for urgent assistance had not arisen at the time she made the phone call to the applicant. During her cross-examination, the following exchange occurred: Q. Do you agree that it is possible, as a consequence of you agreeing that it was possible that the need for the ambulance had not yet arisen at the time of the first phone call, that it is possible that the urgent need for assistance had not yet arisen at the time of the first phone call? A. I agree. Q. Do you also agree that it is possible that, at the time of making the first phone call, having agreed that it is possible that the need for the ambulance had not yet arisen, having agreed that it's possible that the need for urgent assistance had not yet arisen, that it is possible that the guy that you referred to as having just collapsed, being Prisoner D, had not yet occurred at the time of the first phone call? A. I agree. …………………………….. Q. Do you agree with me that it is possible that you did not, at the time of making the first phone call, yet, at that time, need to enter the cell? A. I agree. Q. Do you then agree with me that it is possible that you did not tell Mr Todd the words that you have in your document, which is NS1, which I will read to you, and I am asking you if it's possible. I'm not accusing you of anything other. A. Okay. Q. It is possible that you did not say to Mr Todd, "Toddy, call an ambulance. I need urgent assistance. I've got a guy that's just collapsed and I need someone to enter the cell with me." It's possible you did not say that? A. It is possible, yes. Q. What also is possible is that what you conveyed to Mr Todd is that you were busy and you needed him to come down to give you a hand in the custody room, isn't it? A. That is possible, yes. Findings with respect to Allegation 1 1. My findings with respect to this allegation are that the applicant received a phone call from Leading Senior Constable Shaw at 16.59 requesting his assistance in the custody room. I accept that the applicant did not understand that Leading Senior Constable Shaw was asking for urgent assistance or that she wanted the applicant to call an ambulance. 2. Instead of going immediately to assist Leading Senior Constable Shaw, the applicant, instead, went outside for a cigarette and did not arrive at the custody room until 17.06, after other officers had attended to assist Leading Senior Constable Shaw with moving two prisoners from their cells. 3. Despite my acceptance of the applicant's claim that he was unaware that Leading Senior Constable Shaw was asking for urgent assistance, I share the respondent's dismay at the applicant's decision to go outside for a cigarette before going to the custody room some 5-6 minutes later. Like the respondent, I am also of the opinion that, by his actions, the applicant failed to uphold his oath of office to discharge his duties faithfully. 4. I am unable to accept that the applicant's unhappy domestic situation at that time had any causal connection with his conduct on this occasion. 5. If this were the only matter raised in support of the respondent's decision to remove the applicant from the NSW Police Force, I would be inclined to regard that removal as harsh. However, as will be seen from what follows, that is not the case in this matter. Allegations 2 and 3 1. The Respondent's findings in relation to Allegations 2 and 3 were: 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. 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. The case for the applicant 1. The applicant has admitted Allegation 2 but denied Allegation 3. 2. Allegation 2 concerned the applicant effecting service of an application for an Apprehended Domestic Violence Order (ADVO). When the applicant attended an address to serve the application on the defendant, Mr C, he spoke to Ms S who confirmed that Mr C resided at the location but was not there at the time. The applicant handed the document to Ms S and explained that it was an application only. Ms S agreed to give it to Mr C. 3. The applicant claimed that he was under the mistaken belief that he was able to serve an application for an ADVO on a third party over the age of 18 at the residence. He based this belief, in part, on a form that was circulating within the Wagga Wagga Police Station. That form contained the following: STATEMENT OF SERVICE Applications for Apprehended Violence Orders I have served on ………………………………… of ……………………………….... A copy of this [ ] Application for an Apprehended Violence Order [ ] Application to Vary/Revoke an Apprehended Violence Order At [ ][ ] / [ ][ ] am/pm on [ ][ ] / [ ][ ] / [ ][ ] (dd / mm / yy) Method of service [ ] in person [ ] giving a copy to ………………………………... (Other person over 16 years) at ………………………………………………………. (Actual address of service) Being the [ ] Principal place of residence [ ] Principal place of business/work [ ] OIC and Name of Corrective Services Centre… …………………………………… 1. In his witness statement the applicant stated: 122. In the method of service section, the form enables a box to be ticked for service "in person" or "giving a copy to other person over 16 years" at a specified address "being the principal place of residence or principal place of business or work of the defendant". 123. I had never used the form by writing information on it and submitting it, because the computer system for recording the service of documents was being used. However, I was aware of the form and its content and I thought it was accurate with respect to the way of serving AVOs (and although the form did not state so also ADVOs). I did not understand that to be a difference in the method of effecting service of AVOs and ADVOs. I believe the form applied to both applications. 124. I observed the form in the file used by police officers, along with victim notification letters and case file cover sheets. I did not appreciate that I was doing anything wrong and I did not check with anyone to make sure I was doing things correctly. 1. In relation to Allegation 3, the pro forma electronic document which the applicant actually completed contained the following: STATEMENT OF SERVICE I have served on C at (address) A copy of this NON-URGENT AVO APPLICATION ………………………… Served at 16:30 PM on 03-May-2016 Method of service [/] in person [ ] as directed by the court ……………………….. 1. In explanation of why the applicant ticked the "in person" box on the form, the applicant stated: 112. The difficulty I encountered was that the Statement of Service is a pro forma electronic document that does not allow any variations to be made. I accept and admit that I inserted in the (pro forma) Statement of Service that the ADVO was personally served on C (and not S). 1. However, the applicant went on to state: 113. It was my understanding that the application for ADVO was served on C by S saying that she would make sure he got it. Whilst this was not on the Statement of Service I did state how I had served the ADVO on S in the Consolidated Notice History, which enabled me to insert information in the form of a narrative. 114. A copy of the Notice Summary - Consolidated Notice History report generated from the computer is at page 57 of JT-1. The information entered on 3 May 2016 at 16:30 hours was inserted by me. There I stated "Served to S of (address). S stated that POI resides at the location and will provide POI with ADVO". The words "POI" means "person of interest" which was my reference to C. 115. It was my lack of knowledge that I was supposed to serve the ADVO personally on C that brought about this inserting of incorrect information. However, it was not my intention to falsify police records with any intention to mislead or deceive. I did not know that I had not served the ADVO properly and I did not know that I was inserting information in the statement of service that was incorrect. I was merely trying to fill in the pro forma document in the way it forced me to do. I noted in the narrative how in fact I had served the ADVO. I was not trying to hide or conceal anything about the way I believed, at the time, l had properly served the ADVO. 1. The following submissions were put on behalf of the applicant: 107. The applicant obviously accepts and admits that the information contained in the electronic document was incorrect as he ticked the personal service box, but to the extent that the respondent relies upon the allegation as anything beyond the mere fact that the ticking of the box was an incorrect statement of fact the allegation is denied. 108. The applicant denies the allegation on the basis that he deliberately falsified records or that he created records with any intent to mislead or deceive… 109. The following submissions are in addition to the submissions made regarding Allegation 2. 110. The applicant thought he was explaining himself by putting the actual way that the application had been served in the narrative section of the electronic pro-forma on the court notices system… In doing so he typed in the electronic form: "... served to S of (address). S stated that the POI [person of interest] resides at the location and will provide POI with the ADVO." which is what is relied upon as the "falsity"… 111. The applicant's evidence is consistent with him being intent on qualify the rigid electronic tick-a-box pro forma field by correcting the way of service in the narrative field to make sure he correctly explained how the service was carried out, which is consistent with honesty rather than dishonesty… 112. In cross-examination Inspector Mclay's evidence is that: Q. There is a section on there that has an entry made by Mr Todd in relation to his service of the document, isn't there? A. Yes. Q. Could you read out what is stated in that form? A. On 3 May 2016 at 16.30 the entry appears to be: "Made successful service, James Michael Todd, served to S at (address). S stated that POI resides at the location and will provide POI with ADVO. Attempted to contact LS, POI's mother'', on a phone number, "No answer." Q. Having made the concession in relation to your confusion, and understanding that Mr Todd may well have been confused about the form which I took you to earlier, in relation to the service of applications on third parties, you would agree that it is understandable that he would make that entry in the electronic record, wouldn't you? A. Yes. 113. It is submitted that the evidence supports that the applicant made an honest mistake in circumstances where he believed he had carried out valid service and in those circumstances his is not guilty of falsifying the record. The case for the respondent 1. The respondent's position with respect to Allegation 2 is set out at [6] above. 2. Inspector McLay gave the following evidence: Allegations 2 and 3 15. I became aware of the incidents forming Allegations 2 and 3 against Mr Todd in my role as Professional Standards Duty Officer. Leading Senior Constable Gates came and saw me in relation to Mr Todd's failure to serve an Apprehended Domestic Violence Order (ADVO) correctly. 16. On 3 May 2016, Mr Todd served an ADVO by handing it to a person other than the named respondent. This is not the correct method for the service of ADVOs. An ADVO must be served personally on the named respondent. 17. At paragraphs 121 and 122 of the Todd Statement, Mr Todd suggests that a form circulating the Wagga Wagga Police Station suggested that service of an ADVO could be done by "giving a copy to another person over 16 years." Mr Todd exhibits this form at page 58 of JT-1. I have reviewed the form at page 58 of JT-1. That form relates to the service of applications for Apprehended Violence Orders not to the service of an ADVO itself. 18. The Statement of Service that Mr Todd filled out is annexed to this affidavit and marked "PM-2" That form only contains two check boxes in relation to the method of service: a. in person; or b. as directed by the Court Mr Todd has checked "in person". 19. The Statement of Service is obviously not correct because Mr Todd did not serve the ADVO in person. If Mr Todd was not aware of the proper method for serving an ADVO, he should have asked for assistance. To the best of my knowledge, he did not do so. 20. Not correctly serving an ADVO may mean that the victim, or person in need of protection, is not adequately protected, or does not have the protection of the ADVO until it has been served correctly. This obviously creates an unnecessary risk to the safety of the victim. 21. For the purpose of preparing this affidavit, I have read the report that Mr Todd submitted on 7 September 2016 in relation to this incident. A copy of that report is annexed and marked "PM-3" (7 September Report). At paragraph 120 of the Todd Statement, I understand Mr Todd to be saying that he could not locate the defendant for service. 22. Under the heading "Comment" of the 7 September Report, Mr Todd states: During the conversation with S, I was informed that C resided at the location and would be returning that afternoon. Mr Todd should have arranged for the ADVO to be served personally that afternoon, it was not that he could not locate the defendant as suggested in the Todd Statement. Findings with respect to Allegations 2 and 3 1. I accept that the applicant made an honest mistake by leaving the application for the ADVO with S rather than serving it personally on C. Some responsibility for that mistake lies with the misleading Statement of Service form, part of which is set out at [43] above, which suggests that service of an application for an AVO may be effected by giving a copy to a third party. 2. In relation to the applicant ticking the "in person" box on the Statement of Service form which he actually completed, part of which is set out at [45] above, it is not my finding that applicant was being deliberately dishonest. He made it clear that he had left the application with S in the Consolidated Notice History report which he generated (see paragraph 114 at [47]). However, at the very least the applicant should have sought advice from a colleague before ticking the "in person" box on the Statement of Service form which he completed knowing that this was incorrect. Allegation 4 1. The respondent's finding in relation to Allegation 4 was: 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. The case for the applicant 1. The applicant has admitted this allegation. 2. The applicant's witness statement contained the following: Allegation 4 - May 2015 127. On 26 May 2015, I received a generated Case through Police Link with the reference C57743904. 128. I initially actioned the Case by updating the Case Narrative... I noted in the narrative that the victim was identified as G… 129. Due to the limited information received, I commenced my investigation by requesting the victim attend the Wagga Wagga Police Station and complete a statement… I updated the narrative. 130. G indicated that his unregistered motorbike was stolen, and he had seen a male person riding his bike. G received information that the male riding the bike goes by the name of "Little boy" or "Shorty". Also, that the male was now on remand at Junee Correctional Facility. 131. On 21 July 2015, due to the motorbike being unregistered I located and attended the address of the previous owner S. I obtained a statement from the previous owner indicating G purchased the bike and supplying the Vehicle Identification Number to identify the motorbike, as part of my investigation. 132. During the investigation I conducted checks with intelligence officer Shantelle Slaws, from Junee Correctional Facility. She told me that a male that goes by the nickname "Shorty" had been charged by other police (Senior Constable Owen) and was on remand for charges in relation to riding a motorbike. 133. The information Slaws provided indicated that H or "Shorty" as he is known (H) was my person of interest. I competed checks on H as part of my investigation and identified that the motorbike that he was riding at the time of the offence was owned by the victim G. 134. I approached Senior Constable Owen, and informed him that I had received information that the motorbike was reported stolen, shortly after the pursuit he was involved in. I had a conversation with Senior Constable Owen, asking him if he wanted to charge H with a further offence of stealing the motorbike. Senior Constable Owen told me that I should place a charge of Goods in Custody against H myself. 135. On 4 June 2015, as a result of speaking with Senior Constable Owen I updated the Case with the information that H was identified as the person of interest. 136. I then had a Case Review with Sergeant Huggett, I was given instructions to notify the owner of the motorbike and request a job from Senior Constable Owen stating, "Put in a job for a statement from Con Owen re location of bike and finding the POI riding it." 137. On 15 June 2015, I requested a job via my Case Management System for Senior Constable Owen to provide me with a statement in relation to the pursuit and identifying H as the rider of the motorbike. I received the statement on the 16 July 2015 and updated my Case. 138. On 25 July 2015 I placed a job on my Case Management System to request police from Junee to attend the Junee Correctional facility to ask if H wanted to be interviewed in relation to the two offences of goods in custody and stealing. I created job (J2406083) in the Case requesting Junee police to "... attend the correction centre and offer H the chance to be interviewed." ... "If H wishes to take part in a recorded interview with police, police will arrange interview at the Wagga Wagga police station." … 139. The job request went straight to supervising Sergeant Nix at Junee. It was my intention that Junee police only speak H to determine if he wanted to participate in a police interview and, if affirmative, I would take charge and arrange for H to be brought to the Wagga Police Station where I could interview him. 140. Sergeant Nix and Senior Constable Hall spoke in relation to the job and requested more information to provide a successful and accurate outcome and, on 21 August 2015 the job was returned to me requesting further information. 141. On 28 August 2015, I created a second job (J2362526) in the Case Management System requesting a further interview of H… In the job description I clearly outlined the details of my matter and how H was brought under police attention via a police pursuit. I also allege of how H became in possession of the motorbike and my intention to charge H with a goods in custody charge. 142. On the 1 September 2015 Detective Sergeant Fletcher places a "resubmit" on the job. The nature of this resubmit is unknown to me. I again re-stated in the job. 143. On 4 September 2015, Inspector Mclay added the following Case Comment: "We do not send Junee Police to the Goal to interview an inmate. You need to make a Section 25 application get the POI brought to Wagga Police Station to interview him yourself. Make sure this is on a Tuesday the you are working day shift. If you need to change a shift to make this happen speak to you Supervisor or a DO." 144. On 22 October 2015 Senior Constable Hall of Junee police spoke to H and took it upon himself to speak to him about the allegations. H agreed to be interviewed which is all that I wanted to know because I wanted to take over the interview from there. The difficulty was that Senior Constable Hall went on and interviewed H about the substance of the allegations and concluded in the narrative of the job that: "... I do not believe the inmate wants to be interviewed to offer admissions or deny the allegations. I believe he wants to be interviewed to toy with police and allege that investigating Police just want to 'pin' more charges on him." As a result, I was denied the opportunity of interviewing H myself to see if he wanted to make any admissions in relation to the offence. 145. On 26 October 2015, shortly after receiving the completed job request from the 23 October 2015 interview of H, I completed and submitted charge H59035514 to be verified. 146. I submitted the charge on 26 October 2015 as I was waiting on and had only received the required information from Senior Constable Hall about H not wanting to be interviewed shortly prior to that date. 147. I nominated the date 26 April 2015, as the date of the goods in custody offence as being the end of the time frame that the motorbike was stolen from his house. In his statement he stated that the bike was stolen sometime between 9:30 am on 23 April 2015 and 6 pm on 26 April 2015. 148. I now know the need for suspicion of the goods themselves at the time of the offence and not at a later point in time. I believed that as police had spoken to him after the pursuit and he had the bike at the time I believed I had the evidence to proceed with the goods in custody charge. 149. I could have nominated the date that Senior Constables Owen of the Highway Patrol seized G's motorbike during their pursuit of the rider which occurred on 5 May 2015 (rather than the earlier date of 26 April 2015 which I nominated). 150. I now know that for the offence of goods in custody to succeed, Senior Constables Owen needed to have a suspicion that the motorbike H was riding during the pursuit was stolen or otherwise unlawfully obtained at the time H was arrested. The difficulty remains that they could not have known this because G did not report the bike was stolen until 7 May 2015. 151. On 26 April 2015, I was under the belief that at the time the charge is verified, and a court date is set for the defendant to appear that that is the end of the charging process. Also, at the time I submitted the charge and asked Sergeant Gray to verify the charge, I believed that once the charge was verified and submitted to Court Process that time stops running for the purposes of the statutory limitation period. 152. I now know that the Court Attendance Notice was not sent to the Court for filing but was filed in Court on 3 December 2015 well outside of the 6-month statutory limitation period. 153. The Respondent asserts that I should have charged H with an offence under s 527C(1)(c) of the Crimes Act 1900, as opposed to s 527C(1)(a) (as charged). The difference between the two charges being that the former concerns custody of goods by the defendant on premises and the latter the defendant has personal custody of the goods. 154. Having now reflected on the matter, I believe that the correct charge was an offence of "take and drive conveyance w/o consent of owner" under s 154(a) of the Crimes Act 1900, which is an indictable offence that is not subject to a 6-month limitation period. It could have been charged within time even in December 2015. 155. I did seek the guidance from Senior Constable OWEN about the goods in custody charge. At the time of receiving information from him, I believed that the charge was sufficient, as H was in possession of the bike at the time. 156. I believed that I would be able, with the G's statement and further information received by highway patrol police, to prove that there was a high degree of suspicion that the bike was stolen or otherwise unlawfully obtained. 157. I also believed that when the charge was accepted by a verifying officer, Sergeant GRAY on the 27 October 2015 he would have considered the information in the Facts Sheet and the charge and by accepting the charge he verifying the offence charged was the appropriate charge. I expected if there was a problem with me having the incorrect charge that Sergeant Gray would raise it with me and I could have sought legal advice from the prosecutors. The case for the respondent 1. The respondent's position with respect to Allegation 4 is set out at [6] above. 2. Inspector McLay gave the following evidence: Allegation 4 23. I was responsible for triaging and reviewing the issues in relation to allegation 4 after the complaint was finalised. 24. Having reviewed all the information, it was clear to me that Mr Todd's knowledge fell well short of what it needed to be. 25. I refer to paragraph 143 of the Todd Statement. The standard procedure for interviewing a person of interest (POI) who is already in gaol is to make what is known as a Section 25 Application to have the POI brought to the police station by Corrective Services for interview. On 4 September 2015 when I made a comment on his Case referred to in the Todd Statement, Mr Todd had not made such an application. Rather, Mr Todd disregarded my comment and instead created a job on COPS requesting a police officer at Junee Police Station attend Junee Gaol and ask the POI if he would be interviewed. This is not the correct procedure, nor is it the responsibility of another officer at another police station. In my view, Mr Todd was simply trying to save himself some work. 26. At paragraph 144 of the Todd Statement, Mr Todd extracts a section of the narrative entered in the Case Comments of the COPS system. This conversation would not have prevented Mr Todd from making the Section 25 Application. 27. I have reviewed the COPS Event... At page 71, Senior Constable Hall adds the following comments: Q. Do you want to be interviewed about this allegation? A. Yeah l do. and The inmate expressed a desire to be taken to the police station immediately. Upon my review of these comments, I disagree with what Mr Todd says at paragraph 146 of the Todd Statement about the POI not wanting to be interviewed. 28. There was nothing in the COPS Event that would have prevented Mr Todd from interviewing the POI. To my knowledge, Mr Todd did not at any time make the Section 25 Application to speak with the POI as I had instructed him to do. Findings with respect Allegation 4 1. The applicant offered no plausible explanation for failing to follow the instruction of Inspector McLay. During the cross-examination of the applicant, the following exchange occurred: Q. As you understand. So there's a direction there being made to you by Inspector McLay to make a section 25 application, correct? A. Yes. Q. And that's to interview the person of interest, correct? A. To carry out a section 25 to get him to the police station for an interview. Q. In order to interview him? A. Yes. Q. Yes. And you understood that is so that you could actually get more information from the person you interview to ascertain whether or not there is sufficient evidence to support the charge? A. Sorry, can you just repeat the question? Q. You understood that direction which was given to you by Inspector McLay is so that you could obtain sufficient evidence to support the charge? A. I believed at the time I had sufficient evidence to support the charge. However, I - any charge matter I offered the person of interest, the person being charged, had a chance to give their side of the story. Q. Now, it's not only a matter of making sure you get their side of the story, it's also making sure that you get enough information to proceed with the job; would you agree with that? A. Not really, sorry, no. Q. Now, did you - you didn't actually make an application under section 25 to get Mr H from Junee Correctional Centre to Wagga Wagga local area command, do you agree with that? A. I do. I did not do that order, no. Q. Is it your ordinary practice to disregard a direction made by a senior police officer? A. No. Q. And you agree that the comment which was made by Inspector McLay in that entry on 4 September 2015 was an instruction to you? A. I do not recall my response to this email. I would not disregard an order from an officer. I just do not recall what I actually did at the time. I don't' have any documentation or any other to refresh my memory at all. Q. Listen to my question again. Do you agree that what was contained in that message from Inspector McLay is an instruction for you to make a section 25 application to get H brought from Junee Correctional Centre to Wagga Police Station for an interview? A. Yes. Q. And you agree that you said you don't remember what happened but you agree that you didn't follow the instruction? A. Yes. 1. I agree with the respondent that the multiple failures of the applicant which formed the basis of Allegation 4 adversely impacted upon the administration of justice. Not only did he select an incorrect charge, the matter became statute barred. The applicant did not follow all the advice and guidance that was provided to him, such as to make an application to interview the person of interest himself. The evidence shows that he failed to act according to minimum standards of diligence and commitment reasonably expected from a professional police officer. Allegations 5 and 6 1. The background to Allegations 5 and 6 was set out in the respondent's Statement of Reasons in the following terms: A chronology monitoring your conduct commenced on 16 April 2016, when you turned up, late for your day shift. The chronology was maintained until 28 December 2016. On 5 July 2016, you were placed on an Interim Risk Management Plan (IMP). The plan had three strategies: 1. A mentoring officer to be appointed; 2. Restrictions to be put in place regarding duty type; and 3. Complaint and Conduct Monitoring (A chronology to be maintained). Your appointed mentor was Sergeant Nicolas Brunyee, and you were required to perform all mobile duties with Leading Senior Constable Kate Williams. In addition, you were to ensure that all your briefs of evidence were checked by one of these two officers prior to submission to the Brief Handling Manager. The desired outcome to Strategy 3 was that you would comply with the NSW Police Force Code of Conduct and Ethics. Amended Interim Risk Management Plan On 30 August 2016, the IMP was amended. In particular, the restrictions around your duty type were altered. You were now to have your briefs of evidence checked by Sergeant Brunyee, Sergeant McLachlan or A/Sergeant Hallam. You were no longer required to work alongside Leading Senior Constable Williams. Record of Interview On 28 September 2016, you took part in a directed interview. You were questioned about the fact you were failing to comply with the IMP. You responded: I understand that I am meant to comply with it and I tried to complete the briefs as quickly as I could but as I was away I didn't realise they were due so soon. During the interview, you identify that by not complying with the initial IMP you were in breach of Point 3 of the Code of Conduct and Ethics. You also agreed that on 30 August 2016, you were told your IMP was amended because you were failing to comply with the original plan. During your record of interview, you were spoken to about your preparation of briefs of evidence. You say that during the IMP you handed your completed briefs of evidence to Sergeant Brunyee to check. Mentor Reports In a Mentor Report dated 29 November 2016, Sergeant Brunyee recorded that you were not meeting the required standards. He refers to a custody incident that occurred on 2 November 2016 where you failed to observe what was occurring. Another incident occurred on 4 November 2016, where you had to be reminded of your obligations as the Officer in Charge of a matter. It also appears you told Inspector Robertson that you had only just been told orally by the prosecutors that you had to attend a Local Court Hearing, in circumstances where you had received an email about the hearing date three months earlier. Inspector Peter McLay noted that your conduct continued to be of concern and you were not showing any sign of improvement. In a Mentor Report dated 26 December 2016, Sergeant Brunyee recorded that you were not meeting the required standards. He refers to meetings held by A/Sergeant Hallam where he raised issues with you regarding your poor attitude. Further issues were identified while you were performing custody duties, and you were not meeting the standards required as set out in the plan. Statement of Senior Constable Kate Williams In her statement dated 31 March 2017, Senior Constable Williams describes how she was appointed as your mentor on the IMP and you were to work alongside each other. She describes an incident that occurred in July 2016 where you handled the situation well. However, overall she did not feel she was making much progress with you due to your dismissive attitude towards your duties and towards her. She says you did not appear to want advice, or seek advice, from her. On 5 August 2016, she spoke to Inspector McLay suggesting another officer should be assigned as your mentor. Senior Constable Williams also highlights that she had concerns about your time management skills and fatigue levels. During August and October 2016, she describes how she had to resubmit Events to you due to poorly written narratives, and she had to address your improper practices. She states that on 4 December 2016, you asked her to accept a charge you had created. She says it required no editing, so she advised you to ''do it like this every time''. On 14 December 2016, and prior to going on annual leave, Senior Constable Williams recorded that she had found you to have been generally good in recent times. But, she also stated: "He still has an overall demeanour of not caring / being dismissive but this doesn't stop him from doing as asked. However this appears to be his manner and not necessarily his attitude". Statement of Sergeant Nicholas Brunyee ln his statement dated 4 April 2017, Sergeant Brunyee states that as part of his duties he quality reviews the work of junior officers. He says that during his review of your Events, Cases, Reports, Fact sheets and Briefs of Evidence, he identified several deficiencies with your work. The issues he identified included: • poor spelling and grammar; • Events being constantly resubmitted to address these issues; • FACTS Sheets and statements missing vital evidence; and • proofs of charges not being met. Sergeant Brunyee states that he spoke to you about these issues and reinforced with you the need to read and check your work prior to submission. However, he says the quality of your work did not improve. He says your work remained at a poor standard. As such, a chronology document was created. Two examples provided by Sergeant Brunyee include a narrative you created on an occurrence (E119047301) where you stated: "The POI and his mother answered the door. Bail complied. The POI was wearing at the time grey tracksuit pants, black shit with white selves and a white pocket" (sic). and, a CAD message you created on 13 July 2016 when you stated: "White Statements with no rego is driving around vacent block AAA" (sic) Sergeant Brunyee says that during June 2016, serious concerns were raised by Senior Sergeant Brand, Head of Court, and Senior Constable Blacker, Assistant Brief Handling Manager, about the quality of your briefs of evidence. From July 2016 onwards, Sergeant Brunyee describes a number of occasions where he says you failed at a fundamental level. Sergeant Brunyee says that on 20 June 2016, he had a meeting with Senior Sergeant Brand (Head of Court) and Senior Constable Blacker (Brief Handling Manager). He says serious concerns were raised concerning the quality of your briefs of evidence. He also refers to an incident that occurred on 8 July 2016 when you attended for the nightshift while unshaven. He says you told him that you had forgotten to do so. Sergeant Brunyee states that, on 24 August 2016, Senior Constable Madonna Reardon brought a domestic violence matter you were investigating to his attention. A number of deficiencies were identified, including a failure to notify your supervisor on the date the incident occurred and a lack of victim follow up. Also, when the ADVO was in court on 23 August 2016 you did not mention on the court folder that there may be possible charges, or that the offender was to be arrested. The Event also had to be resubmitted to you reminding you that in domestic violence matters the decision to charge someone does not lie with the victim. Statement of Inspector Peter McLay In his statement dated 21 March 2017, Inspector McLay recalls that you moved teams during March 2014. He believes this was done to assist you reach the required standards by working with different supervisors. In June 2016, due to several complaint matters, he arranged for you to be placed on an interim risk management plan. Inspector McLay says he told you when you entered the IMP that further management action might be taken once the current complaint matters were finalised. He also says he spoke to you again on 10 November 2016 and told you that you would continue to have your duties restricted until your conduct dramatically improved. Inspector McLay states that, on 7 December 2016, he found you with your feet up on the desk, with your hands behind your head, while watching a video on a computer. He says he told you to get your feet off the desk and do some work. He also told you "This is your last warning, do you understand?". He says you acknowledged what he said by 'nodding' your head. On 21 December 2016, Inspector McLay spoke to you concerning ongoing complaints about the quality of your work. He states he discussed with you your future career prospects with the NSW Police Force. He says he informed you that you needed to show some dramatic improvement. He says you have the following exchange: McLay: "James, the Commander is recommending you be sacked. We will not be having this conversation in 12 months James. Either you will be gone or you will be back doing your job. Do you understand?" Yes: "Yes". Brief Preparation In their statements Senior Constable Crystal Blacker and Detective Senior Constable Anna Smith, Brief Handlers, refer to a number of your briefs of evidence that they say were overdue and had a number of shortcomings. The matters of H, Hi and L are referred to below. H Brief Information obtained in COPS shows the due dates for the brief were as follows: Prosecutor: 13 July 2016 Defence : 13 July 2016 Reply : 27July 2016 Brief Mgr: 29 June 2016 In his statement dated 4 April 2017, Sergeant Brunyee states that he reviewed the H Brief on 5 July 2016 and discovered a number of inconsistencies. This included a statement drafted by you, which he says was poor. It also made no references to the Notebooks of the other officers involved. Sergeant Brunyee also states that Senior Constable Blacker spoke to you because the brief had been served without it being checked by anyone. He says he had previously checked the brief and had advised you to make a number of changes, which you failed to do. In her statement dated 23 March 2017, Senior Constable Crystal Blacker states the brief was received by the brief handling manager nine days after it was due to the defence. She states she sent you a number of reminders regarding the brief. She also offered to assist you. On 6 July 2016, Senior Constable Blacker states she sent you an email attaching a document titled 'Brief Contents and Order for Summary and Indictable Matters'. This document was a useful guide as to what items might be required when compiling a brief of evidence. In her statement dated 27 March 2017, Detective Senior Constable Anna Smith, Brief Handler, states the brief was received late and lacked detail. She says: • it lacked transcripts of interviews; • it was unclear if the interviews were electronically recorded; and • that witness statements lacked detail. Detective Senior Constable Smith says you were told to contact her if you needed help. She says there is no record of you seeking assistance, nor is there any record of the outstanding material being supplied. She says the matter was withdrawn. Detective Senior Constable Smith says that although you generally contacted her for advice, you rarely followed any advice that was given. She also says you were "more often than not, late with [your] brief submission". During your record of interview on 28 September 2016, you accept that Sergeant Brunyee had suggested amendments and you say: The brief was overdue at the time, I was pressed for time and I was under the impression that I would make an additional statement later to cover the changes, I didn't make the statement as I didn't have time. You acknowledge that Senior Constables Blacker and Smith sent you detailed comments regarding the brief. You refer to the annual leave you took between 14 July 2016 and 6 August 2016 and say you completed the brief on your return. You say that you did not realise it was overdue. Hi Brief Information obtained in COPS shows the due dates for the brief were as follows: Prosecutor: 11 August 2016 Defence : 11 August 2016 Reply : 24 August 2016 Brief Mgr: 28 July 2016 In his statement dated 4 April 2017, Sergeant Brunyee states he reviewed the Hi Brief on 8 August 2016 and identified a number of issues. These included the fact that you did not include a formal caution, you did not say that you were authorised to operate Breath Analysis equipment, or make any reference to the BAS certificate. Indeed, he says the BAS certificate was not in the brief. Sergeant Brunyee explained to you that without the BAS certificate there was no prima facie case. Amongst other things, Sergeant Brunyee asked you to clarify the following passage that was contained in your statement: "I placed D (first name) into the rear caged section of the Police vehicle. While D was in the rear caged section of the Police vehicle I submitted him to a road side breath test, which returned a positive reading." It appears your narrative caused some confusion as to how you performed a road side breath test while the person was in the rear caged section of the police vehicle. Sergeant Brunyee states he checked the brief again on 25 August 2016 and it still included: • the wrong date, time and place of incident; • grammatical errors: • very little first person conversation; and • no reference to the pro-forma questions asked prior to a BAS test being conducted. Sergeant Brunyee says at this time he gave you a book of sample statements for all matters, including PCA type matters. In her statement dated 31 March 2107, Senior Constable Williams says that on 21 August 2016 you asked her to prepare a statement for the Hi Brief. She states that when she reviewed the FACTS Sheet the incorrect time, place and date were recorded in the first paragraph. She says she spoke to you about this but you could not explain the errors. Senior Constable Williams states that you told her you would speak with the prosecutors' office about amending the errors. However, she says when she checked the information two days later, the date and day were still incorrect, although the location had been amended. In her statement dated 27 March 2017, Detective Senior Constable Smith recalls the brief being overdue. She says there were numerous outstanding items, including CCTV footage, several statements and Court Attendance Notices. She says you were told to contact her if you had any questions. She also states there is no record of the outstanding items being provided. In her statement dated 23 March 2017, Senior Constable Blacker confirms that, despite sending a reminder, the brief was received late. Indeed, she received it on the day it was due to the defence. She says this caused her to reprioritise her day so she could check the brief. Prior to the brief being received she had to chase you for a number of outstanding items. Senior Constable Blacker says that on 23 August 2016 she had to send an email to a number of officers in relation to this matter seeking their outstanding statements. She says she then spent her morning chasing the statements, which took her away from her other duties. During your record of interview, you say you had very little time to complete the brief. You admit that you are a qualified BAS Analysis Operator. You say you had never completed a 'BAS statement' before. You accept that comments were made by the brief handling manager. You refer to your annual leave and say you completed the brief as quickly as you could upon your return. L Brief Information obtained in COPS shows the due dates for the brief were as follows: Prosecutor: 22 August 2016 Defence : 22 August 2016 Reply : 5 September 2016 Brief Mgr: 8 August 2016 In his statement dated 4 April 2017, Sergeant Brunyee states that on 22 August 2016 he reviewed the L Brief as it was overdue. He says numerous comments had been placed on the brief, which you had read. Sergeant Brunyee checked the brief again two days later and found that you had not conducted the numerous additions / amendments. In her statement dated 23 March 2017, Senior Constable Blacker says she received the brief after the due date and three days prior to it being due to the defence. She says three reminders had been sent to you reminding you that the brief was due. She says a number of matters remained outstanding and noted several deficiencies in your statement. She says your statement was just a 'cut and paste' from a linked matter. She also advised you that you need to provide a separate statement for each person of interest, focusing on your involvement with each one of them. During your record of interview, you say you were on annual leave when the brief was requested. You say you completed it as quickly as you could once you returned. You cannot recall if you gave the brief to Sergeant Brunyee to check. You agree that the brief you submitted in this matter was the exact same brief you provided in the matter of H (except for a statement obtained from Forbes police). You were referred to a number of comments Senior Constable Blacker made on the brief, and asked why you submitted the brief after the date it was due to the defence. You responded that following your return from leave, you completed the brief as quickly as you could. Response !n your Response, you admit Allegations 5 and 6 and apologise for your behaviour. You concede you did not give your full attention to your work. You submit the impact the event giving rise to Allegation 1 had upon you was the catalyst for your poor conduct and behaviour throughout 2016. You also submit there were times when you could "function to the satisfaction of my superiors". You further state you were not told about some of the issues and therefore you were unable to correct them or obtain further training. You say you have always attempted to complete your work to the required standards. You say you have successfully completed many briefs of evidence. You say you are fully capable of completing investigations and compiling briefs. You do not feel you have failed over a lengthy period. 1. The respondent's finding in relation to Allegation 5 was: 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. 1. The respondent's finding in relation to Allegation 6 was: 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... The case for the applicant 1. The applicant has admitted Allegations 5 and 6 and has apologised for his behaviour. 2. In his witness statement, the applicant stated: Allegation 5 - April to December 2016 158. I admit Allegation 5 and accept that I did not give my full attention to my work. I regret the situation and apologise for my shortcomings. 159. The entire period from April to December 2016 was a very difficult time for me and Tamara. 160. I wish to reiterate my evidence in paragraph 19 to 21 and 25 to 52 above in relation to the difficulties Tamara and I were having in our marriage, and the timing of the onset of my poor mental health and Post-Traumatic Stress Disorder. 161. I particularly refer to the reports of my treating psychiatrist Dr Diamond and the insurer's consultant psychiatrist Dr Prior in relation to their opinions about my mental health. 162. Whilst I was aware that our marriage was really suffering and that I was having a great deal of difficulty coping at work l was oblivious to the existence of the Post-Traumatic Stress Disorder and depression until it was eventually diagnosed in March 2017. I did not report it because I did not understand what was going on. 163. After the charge room incident (Allegation 1) on 31 March 2016, I was left feeling very distressed and shocked about the whole situation. I knew that I was being blamed for delay in giving help or assistance to another officer because that was what was being talked about. 164. It was a significant blow to my reputation in the station. I was at a loss to understand why I had chosen to have a cigarette rather than go straight to the charge room. It made me feel even more shattered not being able to understand what was going on. I lost a lot of my confidence at work and felt poorly about myself. I couldn't understand what was happening to me and I became more and more distressed and anxious within myself. 165. Internally, I placed myself under a lot of pressure about not giving assistance to a fellow officer. I knew I had made a mistake and that I was not functioning correctly at work and was suffering poorly in my personal life with Tamara. 166. I took annual leave from 15 to 27 June 2016. 167. On 5 July 2016, I entered the Interim Risk Management Plan. Sergeant Brunyee was my supervisor. He was assisted by Leading Senior Williams. 168. On 30 August 2016, I entered the Amended Interim Risk Management Plan. Sergeant Brunyee was my supervisor. No body assisted him. 169. I took annual leave from 11 September 2016 to 22 September 2016. 170. I have read the documents and statements provided from the Wagga Wagga Station and Staff that were served on me by the Commissioner of Police regarding my performance. I believe that the errors and incidents noted do not represent me in a true view of my performance during that period. There were many times when I was able to function to the satisfaction of my superiors. 171. There are many incidents detailed in the reports and statement, that I was not informed about at the time or provided any mentoring or guidance in respect of the incidents or given some notice or information about the incidents at the time. This resulted in me being denied the opportunity of trying to correct my performance in a pointed way or to improve my attitude in a way that I could have if the incidents were brought to my attention at the time. I was unaware of the incidents until it was too late to correct the problems. 172. This causes me a great deal of dissatisfaction with the supervision process and I do not believe I was properly mentored or assisted. It was more like a watching process to keep a record of me when I slipped up. This is certainly how I felt. It made me nervous and I felt like I was being treated unfairly. 173. It is in part the combination of the individual small incidents that are now being relied upon to remove me from the Police Force, in circumstances where they were not brought to my attention at the time. 174. I did not trust Sergeant Brunyee. I felt his supervision of me was biased and of poor quality. I felt uncomfortable around him because his wife and children had stayed at our house whilst they came to Wagga Wagga in advance of him. Then when his wife separated from him I helped her move her belongings out of their home when he was away. We did not talk about this, but I felt uncomfortable with him being my supervisor. I did not raise my concerns because I thought it would probably backfire on me and could make things worse. Allegation 6 175. Throughout the supervision period, I was quite busy and had, what I believe was a reasonably heavy workload. It certainly seemed that way to me. I was working hard and doing my best to get things done and despite my efforts I was able having trouble meeting all of my deadlines. 176. Annexure 40 to the statement of Senior Constable Blacker the Assistant Brief Handling Manager, dated 22 March 2017… According to the annexure between 12 April and 16 June 2016 I was the officer in charge of and had briefs of evidence due in the matters of: (1) K; (2) Hi; (3) G (4) C; (5) T; (6) I; (7) B; (8) L; (9) H; (10) Bu; (11) M; and (12) Ba. 177. Further, Annexures 42 and 43 to Senior Constable Blacker's statement… shows that I was also required to follow up on a further three briefs of evidence in which I was the second officer in charge, because the officer in charge was on holidays. 178. I accept that I made many mistakes during the supervision period. It was during a time when I had a busy workload. It was not through want of effort. I did my best in the circumstances that I faced, which included my poor mental health and the symptoms of the mental illnesses and anxiety that I was suffering, coupled with the problems that I was having in my marriage. The case for the respondent 1. Inspector McLay gave the following evidence: Allegation 5 29. I was responsible for overseeing the Interim Risk Management Plan and Amended Interim Risk Management Plan that Mr Todd entered in to in July 2016 and August 2016 respectively. I was not responsible for the day to day management of Mr Todd. 30. On 17 March 2017, I made a statement in relation to Mr Todd's performance… 31. During the Interim Risk Management and Amended Interim Risk Management periods, I did not see an improvement in Mr Todd's performance. I was continually receiving negative feedback about Mr Todd's competence from other officers tasked with mentoring him. A log of feedback was kept, both good and bad feedback, and contributed to by officers tasked with mentoring Mr Todd… 32. At paragraph 164 of the Todd Statement, it is suggested that the incident which forms Allegation 1, was a "significant blow to [Mr Todd's] reputation" which led to him performing poorly. I disagree with the statement. For the reasons I have outlined above, Mr Todd's reputation was not affected by the incident which forms Allegation 1. I would have said that his reputation for his competence was 'fair' at best, both before and after that incident. 33. At paragraphs 170 to 173 of the Todd Statement, Mr Todd says that the incidents which form the allegations relating to his competence were not serious. I disagree with this statement and say that the competence of a Police Officer is a serious matter. It is imperative that a Police Officer is competent when performing their duties. Incompetence in completing duties can mean that, for example: a. defendants are not charged properly and prosecutions cannot proceed; b. the safety of members of the public is put at risk because Police Officers are not adequately performing their duties to protect the public; and c. the safety of other Police Officers is put at risk. 34. The fact that Mr Todd does not understand the necessity of him performing his duties competently is of concern to me. This suggests to me that if Mr Todd was to be reinstated as he is requesting that his performance would be no different than it was prior to his removal. 35. Further, on a number of occasions… Mr Todd was spoken to and told not to watch Netflix or movies while on duty. The fact that Mr Todd needed to be told not to do so on a number of occasions demonstrates to me that he did not take his work seriously, he refused to take directions from senior officers and was not trying to improve his performance to the required standards. 36. In relation to paragraph 171 of the Todd Statement, I say that Mr Todd was given sufficient support to correct his performance. A number of different mentors and supervisors were assigned to Mr Todd during his time at Wagga Wagga Police Station... He was assigned different mentors and supervisors to ensure that he had every opportunity to improve his performance and was not hindered in doing so because of any difficulties with a particular mentor or supervisor. As is apparent… the mentors and supervisors assigned to Mr Todd each had the same or similar experiences in relation to his performance. 37. I refer to paragraph 174 of the Todd Statement. Mr Todd never brought these concerns to my attention. Had he done so, I would have taken these concerns into account and if necessary could have arranged for Mr Todd to be supervised by another Sergeant. As I outline above, there was a history of assigning Mr Todd different supervisors to assist him in improving his performance. This could have been done again if required. Allegation 6 38. In relation to paragraph 175 of the Todd Statement, I say that Mr Todd's situation was not unique in that Wagga Wagga is a busy station. However, from around July 2016, Mr Todd was restricted in working outside the station. This meant that he did not attend jobs outside the Police Station. 39. Mr Todd could have asked for additional assistance if required, however, as I have outlined above, Mr Todd's performance issues were not limited to this period. He had not displayed the required level of competence since he commenced in 2012. 40. In relation to paragraph 178 of the Todd Statement, I say that Mr Todd never raised these issues with me and did not indicate that these factors were affecting his performance. Had he done so, they would and could have been taken into account. 41. For the purpose of preparing this affidavit, I have reviewed Mr Todd's training records… From reviewing that record, I can see that Mr Todd completed online Brief Preparation training on 10 September 2016, and a Brief Preparation Workshop on 16 September 2015. Findings with respect to Allegations 5 and 6 1. The applicant has admitted these allegations and apologised. He sought to explain his conduct, at least to some extent, by reference to the marital difficulties he was experiencing at the time and "the timing of the onset of my poor mental health and Post-Traumatic Stress Disorder". For reasons which are expanded upon later in this decision, I do not accept that the applicant's domestic situation and mental state at the time adequately explain or excuse his repeated and consistent failure to perform his duties to a satisfactory level. 2. I agree with the respondent's assessment to the effect that the applicant has repeatedly failed to act according to the minimum standards of diligence expected from a professional police officer and repeatedly failed to comply with basic NSW Police Force policies and procedures. Allegations 7, 8 and 9 1. The respondent's findings in relation to Allegations 7, 8 and 9 were: 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'. 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. 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. Case for the applicant 1. The applicant has denied these allegations. 2. On 13 December 2016, six days after the incident that led to these allegations against the applicant, at the request of Senior Constable Parsons, the applicant prepared a statement which contained the following: 3. In order to make this statement, I have refreshed my memory from Police CAD system, job number 597788 – 07122016 and Police event number E61651510. 4. On Wednesday 7th December 2016 I was rostered to work Station duties. I was rostered to work from 6pm until 6.30am the following day. I was in full Police uniform. 5. About 9pm on the 7th December 2016 I received a phone call to the Wagga Police Station, which I answered. The caller identified herself as A. 6. I had a conversation with her in relation to her ex-partner, M. A told me that she had recently separated from M and that she was at her friend's house at 24 Maitland Avenue, Estella. A also informed me that M had attended the location and was asking for the car back. I Said – Who's name is the car registered in? She Said – Mine. I own it. I Said – What is he doing at the moment? She Said – Just sitting there. I have asked him to leave. 7. I created a job via the CAD system for Police to attend the location. I continued to speak with A for a short time. I said something similar to, 'Its sounds like a property dispute if he wants the car he will have to attend court and get a recovery order. If anything else happens call me back, Police will be there when they can.' I then terminated the call. 8. Shortly after I received a call from a male who identified himself as M. He begun by telling me that his partner had his car and wouldn't give it back. After a short time I realised that he was the other party in the job I created. I Said – Who's name is the car registered in? He Said – Hers I Said – Then it is her car, if you need it you will have to go to court as a civil dispute over the ownership. He Said – But I need it for work. I Said – There is nothing that we can do tonight. Police are on their way to see both of you. I suggest that you go home and Police will contact you later. He Said – No I am not leaving my car. I Said – Police will be there soon. 9. I then terminated the call. 10. About 10pm on Wednesday 7th December 2016, I received a further call A. A told me that her children were being sick and did not want to go to sleep. She did not want to leave due to M still being there. 11. I had a short conversation with the shift supervisor Sgt HALLAM. I told him the details, which M was at the house and wouldn't leave. It was a property dispute over a car. He said that he would get a car crew to attend shortly. 12. I received a further call to the Police Station from M shortly after I spoke with SGT HALLAM. He begun by asked where Police were. I told him that a car had acknowledged the job and would be attending shortly. M started swearing at me, he said something similar to: He Said – If I was a chick, you fucking would be straight out here. This is a fucking joke, I want my car back and you cunts are not doing anything. I Said – Police are on their way. 14. At 10:19pm, I placed an update on the CAD job. 15. I had no further involvement in relation to the incident. I completed my rostered shift with other duties. 1. In his witness statement, the applicant stated: Allegation 7 - December 2016 179. It is alleged that on 7 December 2016, I failed to include all relevant information reported to me by Ms A in the CAD message I created, in particular that her ex-partner was the subject of an ADVO; and that I chose to limit the information recorded in the CAD message in order to give the impression the matter was a "property dispute" (rather than a domestic dispute). 180. I deny Allegation 7 in its entirety. 181. On 7 December 2016 I commenced my shift at 6pm working a 12-hour shift. I was on restricted duties and had been so for about 6 months. 182. I was the only person assigned to the Station Officer role. My duties included answering all calls to the Wagga Wagga Police Station at the first availability attending to counter enquires and conducting station checks, like portable equipment, checking safe contents, and then trying to complete my paperwork. Any calls that go unanswered for a short and certain time frame, enter an over flow system and can be answered by other officers in the station. 183. My procedure for answering calls is to greet the caller, state my name and rank and ask how I can help. A sample of my greeting is similar to the following: "Good morning/evening, Constable Todd Wagga Police, how can l help?" 184. Once the caller told me their situation I would then ask particular questions to get what I considered was the necessary information and the detail required to create a job. Depending on the content of the information, I would either write the information on my daily running sheet or place the information directly on the computer system. 185. The computer system is named "Computer Aided Dispatch" and is known as "CAD". The system is easy and straight forward to use. I found that from time to time the system experienced a time lag in the updating of information. It is a functionality issue and not something that can be addressed by me or any other operator. 186. The CAD system has several options for the operator to address the type of incident. Examples of incidents range from jobs concerning a "parking complaint", "checking bona fides", "driving complaint" and "domestic". 187. When creating the CAD job, the operator must create the incident to best suit the content and description of the job for rating and identifying the seriousness of the job. The seriousness of the job indicates the priority of the job and the level of attention and response to the job. 188. At the end of placing the information and description on the CAD system, the operator does not have a great deal more to do with job, unless there is more relevant information that comes to hand or COPS enquiries reveal information that needs to convey to the attending police officers. Any such additional information is added to the CAD job by the operator, being logged and recorded access and is then broadcast to the attending police. 189. My usual practice and the standard operating procedure for all front-line police officers when they are the officers attending CAD jobs and, especially when attending jobs classified as "domestic incidents" is to request from the police radio operator all relevant checks and warnings for the location, vehicles or persons involved, such as "location enquiries" or integrated licensing system checks. 190. Throughout my career in Wagga Wagga Police Station I have never been corrected, mentored, trained or otherwise told that it was my responsibility to undertake COPS enquiries about CAD jobs and to update the CAD system with results of searches done on COPS about known persons etc. 191. I always tried to gain as much information as time permitted from the caller or informant for the job, whilst aiming to be efficient and spend only as much time as was needed to get the relevant information and then move to the phase of creating the job on the CAD system. It is important to note that the phone calls are not social. The caller is usually unknown to police; is to varying degrees in a state of distress; often speaks quickly; and requires police assistance as soon as possible. 192. In Wagga Police Station there is often a high volume of phone calls and as the Station Assist I quite often was the only officer answering calls. Because of the high volume of calls usually received, I strived to be efficient and in doing so limited the time that I took to obtain information by asking directed questions to have the caller provide the relevant information as quickly as possible. When appropriate and time permitted, I attempted to give advice and guidance to callers to help them and to dig deeper and to troubleshoot their complaint prior to requesting police to attend the location. 193. Due to the seriousness of domestic incidents, Wagga Command has issued directive that all domestic type jobs require priority attention and the Outside Supervisor must also attend the location. 194. I was working alone as Station Officer on the shift and the night was reasonably busy. 195. About 21:00 hours on 7 December 2016, I received a call from A. I had a short conversation with her during which she told me that she had recently separated from her ex-partner M; that she was with her sister at her sister's house in Estella. I knew Estella to be a residential suburb about a 10-minute drive North from central Wagga Wagga. 196. I continued to speak with A for a couple of minutes. I established that she wanted the police to attend at her location as M was outside her sister's house and wanted to take a car that she said was owned by her. She told me that M was just sitting outside waiting and that he wanted to take the car. After I established that A and M were in a domestic relationship, I classified and placed the job as incident type "Domestic". 197. …The job I created is described under the "Incident Header'' section as follows: "Priority 3 Domestic INF (A) stated the ex-partner M 21/07/1977 is at the LOC. POI (M) is asking for the car back and the INF is refusing. Veh is registered to the INF." 198. I classified the job as "Domestic". I did this because I believed it was domestic related dispute between ex-partners involving a contested claim to a car that was registered in the name of A and that her ex-partner M was wanting to take the car against the wishes of A. 199. I did not make a malicious or contrived decision to give the impression the job was a "property report" or to write the CAD job up in a particular way to make it easier to "write off'. I was on station duty. I was never going to attend the job. I had absolutely nothing to gain from classifying the job as a domestic or a property report or any other category. I classified it as I did because I believed it was the most accurate description for the job and that it was the correct thing to do. 200. At 21.02:52 hours the CAD system generated an automatic "broadcast" to all MDT and VKG. This means that the job is automatically sent to computer screens of MDT and VKG computers. 201. At 21.03:51 hours the job was broadcast over police radio by VKG but it was not acknowledged by any car crews. 202. Not long after I created the job on the CAD system, I received a call from M. At the time I received information from him, confirming what A had previously told me. I did not obtain any new information. He confirmed the car was registered in the name of A. I told him that if it is her car he would need to go to court to have the ownership determined as a civil dispute over ownership which was not a decision the police could make. I told him that the police were on the way but as there was little police could do it would be best if he went home and he would be contacted later. He refused to leave. I told him that police would be there soon. 203. It was a relatively busy shift. I continued working and took many other phone calls and placed jobs on the CAD system. I also attended to other responsibilities I had during the shift. 204. The job was broadcast again by VKG at 21.49:48 hours and 22.01:13 hours. On both occasions the job was not acknowledged by any car crew, which meant that no car crew had committed to attend the job. 205. About 22:00 hours, I received a call from A stating that M was still out the front of her sister's house and she wanted to leave to go to sleep. but couldn't because M was still outside. 206. l entered the Supervisor's Office and told the supervisor, Sergeant Hallam, that there had been a delay in police attending the (A) domestic incident CAD job. I asked if he could task a car crew to attend, which if done, would give the job more priority. There were car crews in the station and the job was being ignored by them. 207. Shortly after my conversation with Sergeant Hallam, I received a call from M. He asked if police were on their way, to which I stated that I just spoke to the supervisor about given the job a higher priority. M said something like: "lf I was a chick, you fucking would be straight out here. This is a fucking joke, I want my car back and you cunts are not doing anything." I told him police were on the way and terminated the call. 208. Shortly before 22.19 hours, I learnt that an officer had telephoned A using the number that was provided on the CAD system. I also received that there was an enforceable ADVO in place against M. I conducted checks on the COPS computer system to confirm there was an enforceable ADVO order in place against M. My accessing of COPS is confirmed by my COPS audit report, assuming that somebody else did not use my user identity. 209. I am certain that A did not tell me there was an enforceable ADVO in place prior to the call I made to her at around 22.19 hours. 210. A Station Update was broadcast by VKG at 22.20:20 hours advising that an AVO was in place against M. 211. The job was acknowledged by car crew with the call sign "WW14" at 22.21:20 hours. 212. Senior Constable Parsons attended the job at 22.36:45, it was not until 22.46:13 that the relevant information was given in relation to bail conditions via "web link attached: Summary - M", which was updated and broadcasted by Police radio. M was told that A declined to provide police with a statement against M; that he would not be taking the car; and that he should leave the area. 213. M was initially told information in relation to attending court to contest the ownership of the vehicle, however again refused. Attending Police told M that he would be arrested for a breach of the peace, which he initially the reason for arrest. M was later charged for breach of ADVO, with A's sister being named as the victim and breach bail conditions. Allegations 8 and 9 214. I deny Allegation 8 and 9, which fall from the facts in relation to Allegation 7. 215. Prior to the completion of my shift on 7 December 2016, Senior Constable Parsons asked me how many times M had telephone me. I told him that I spoke to him twice. Senior Constable Parsons then asked me to provide a statement in relation to my involvement. 216. I did not ask Senior Constable Parsons the reason for him wanting the statement and he did not tell me. I certainly did not think it had anything to do with a complaint against me. If I had, I would have made contemporaneous notes on the night and would have made sure that I made the statement from my memory as it stood on the night. 217. I was unaware that there was any complaint or suggestion that I did anything wrong until I was given notice of the complaint in March 2017, approximately 3 months after I was suspended from duty. There was absolutely no attempt to correct, mentor or train me in how better to use the CAD system. 218. In accordance with the request by Senior Constable Parsons, I prepared a statement on 13 December 2016… 219. At the time I made my statement on 13 December 2016, for the purposes of refreshing my memory I accessed information on the CAD system for job number 597788-07122016… 220. My username identity on the CAD system is "N48562". The addendum is automatically logged when I as the operator logged into the CAD system and entered information. The user identity is important for auditing purposes and, I assume, to enable monitoring of correct usage and the creating of CAD jobs by specific identified operators. The user identity is assigned to each officer and should not be used by another officer. 221. For efficiency, when working in the station assist role which involves placing many CAD jobs on a shift, it is common practice for the station assist officer to remain logged into the computer terminal in the station so that the CAD system can be quickly accessed. If another officer wants to use the CAD system, they should logon using your own user identity and not use another officer's user identity. 222. When I refreshed my memory from the CAD system for job number 597788-07122016 I saw that my user identity of N48562 was used at 22:19:13 hours to update the job via a Station Update as follows: "There is currently an AVO in place - the POI has driven to the location in a cab and has been sitting outside the location for over an hour. The INF is scared and cannot leave the location." 223. After refreshing my memory in accordance with the preceding paragraph I assumed that I made the Station Update and, I included that in paragraph 14 of my statement. I did not have an independent memory of the job. 224. I relied upon my general non-specific memory of the events of the night and the conversations I had in the telephone calls and my refreshed memory from the CAD system for the job which is a contemporaneous time-line record. 225. At the time, I believe that the CAD system for job number 597788-07122016 accurately reflected my use of the CAD system for the job and I believed the information in my statement was true and correct. 226. I have since learnt that on 22 May 2017, Inspector Spliet of Professional Standards interviewed Leading Senior Constable Gates and that she made the station update in the CAD system at 22:19:13 hours under my user identity because it was easier for her than logging in under her own user identity. 227. Leading Senior Constable Gates did not tell me that she used my user identity to update CAD, but she informed Inspector Spliet of that fact on 23 December 2016. I was suspended from duties on 28 December 2016. I found out about Leading Senior Constable Gates using my identity on CAD well after I had been suspended. 228. Without being told that my user identity had been wrongly used to access the CAD system I was entitled to assume that the computer record showing my accesses of system was accurate and that it properly represented my use of the CAD system. 229. Due to the high volume of calls and further conversations throughout my shift, I used the available information to me at the time to create my statement. By sighting the clear evidence that the CAD job was updated under my profile I believed, I updated the job. Being that was only a very small evidentiary part of my statement I was not aware that another officer updated the CAD job under my profile. 230. As stated above I was refreshing my memory from the CAD job. In my response I remember doing the checks on COPS and admit not having a memory of updating the CAD message. Again, this was done from using the CAD job to "refresh my memory" and seeing that my profile updated the CAD job I assumed that I had updated it. This is a reasonable assumption to be made and in no way indicates any intent to falsify my statement. Case for the respondent 1. With respect to Allegation 7, the respondent regards this matter as a further example of the applicant's failure to act according to the minimum standards of diligence and commitment that can reasonably be expected from a professional police officer and a failure to comply with basic NSW Police Force policies and procedures by omitting critical details from the CAD message. The respondent does not accept that the applicant was not told about the existence of an ADVO. The respondent accepts that Leading Senior Constable Gates spoke to the applicant about the omission of this fact and he told her it made the CAD job easy to write off. This was overheard by Leading Senior Constable Hallam (see [6] above). 2. With respect to Allegations 8 and 9, the respondent regards these matters as demonstrating that the applicant has repeatedly provided false or misleading information. The respondent does not accept that, when the applicant drafted his statement six days after the incident, he believed that he had taken and created the updated message (see [6] above). 3. On 23 December 2016, Leading Senior Constable Gates created a "Godfrey Report" in response to a Directive Memorandum. The report contained the following: BACKGROUND On Wednesday the 7th December 2016, I was rostered to work 1pm till 1.30am with Constable BANNISTER. During the evening I was sitting in the muster room when Sergeant HALLAM walked in and said something along the lines of "Toddy wants to know if someone can copy and do the job at Estella, it's been outstanding for a while." I said "I'll have a look at it, its only a property dispute, I'll go give the informant call." I walked to the station area and there were no persons there. Constable TODD had left the computer opened with CAD on the second screen. I looked at the cad job 597788-07122016 and I contacted the informant listed on the Cad job, A … I spoke to A and spoke to her about a property dispute and she stated, "No, it's not a property dispute, there is an AVO." I said, "I'm sorry but that is the information I've been given." She said, "Can I speak to Constable TODD, I told him the information/story." I said, "No, can you please tell me what is really going on." She said, "There is an AVO with my ex-partner where he tried to choke me earlier in the year. He got a cab here and is sitting outside my sister's house, he has even been sitting on/near my car and I can't leave, I'm too scared to leave and I need to leave. He has been here for more than an hour." I said, "I'm sorry. I'll update the job with that information and someone will come out." Constable TODD had walked back into the station area while I was on the phone to A. When I got off the phone, I sat at the chair and updated the CAD job to state, "there is currently an AVO in place – the poI had driven to the location in the cab and has been sitting outside the location for over an hour. The informant is scared and cannot leave the location." I then spoke to Constable TODD and asked him why he did not put all the information into the Cad job in which he replied, "Cause it's as easy to write off." After hearing this I approached A/Sergeant HALLAM and had a conversation about this information and I expressed my concern about not having the information within the job and how the cad job read so different to what the situation really was. ………………………………….. COMMENT I have real concerns about this whole incident, the first being that the cad job that was created is incorrect and appeared to be a simple property dispute when it was in fact the incident was so much more and had the potential to escalate. The second issue I have with this situation is that when I spoke to Constable TODD and he provided me with an explanation of why he didn't put all the information in the cad job, he seemed to think it was ok to leave important information out so someone could write the job off easier. To me this is an issue, it's a safety issue for police, not knowing the "whole" story/information when attending a job. This is how police get hurt. 1. Leading Senior Constable Gates was cross-examined at length about the conversation she had with the applicant on 7 December 2016 but did not resile from what she had recorded in her report of 23 December 2016. 2. Leading Senior Constable Hallam sent an email to Inspector McLay at 5.52am on 8 December 2016 which contained the following: At 10.00pm, I allocated LSC Gates to go to the job. LSC Gates called the informant and enquired about the job as, according to the details on CAD, seemed to be a property dispute. AT this point, A informed LSC Gates that the POI is on bail and is also the defendant in an AVO. LSC Gates asked Cst TODD why the job wasn't created correctly with AVO and Bail etc. Cst Todd replied, "I don't put all that stuff in because it's too hard to write the CAD off" 1. Leading Senior Constable Hallam also gave the following evidence before the Commission: 25. The 'Incident Header' section of the CAD indicates that the incident was a 'Domestic'. However, the description reads "Inf stated the ex-partner M 21/07/1977 is at the loc. POI is asking for the car back and the Inf is refusing. Veh is registered to the Inf." This description is consistent with the incident being interpreted as a property dispute as Leading Senior Constable Gates had said. 26. A short time later I heard Leading Senior Constable Gates talking Constable Todd. She asked Constable Todd "Why didn't you put all of the information in the CAD?" Constable Todd said "It's easier to write off." Leading Senior Constable Gates then came into the supervisor's office and told me about this conversation. I said something to the effect of "I heard. I will follow it up." 1. Leading Senior Constable Hallam was cross-examined about this aspect of his evidence. The following exchange occurred with counsel for the applicant: Q. Mr Todd's case is that he didn't say it was easier to write off. A. Okay. Q. Or words to that effect. Do you understand that? A. Yep, okay. Q. Do you agree you could be mistaken about it? A. No. Q. It's a very serious thing for him to have said, isn't it? A. Yes, it is, yeah. Q. You were supervising him at the time, weren't you? A. At that - on that shift, yes, yep. Q. You didn't speak to him about it on the night, did you? A. No, no. Q. Do you agree that it's something that, as a supervisor, if it had of occurred in the circumstances that you've set out, and you considered it to be a serious thing for him to have done, you would have spoken to him about it? A. Well, not at that time. I, I'd want to get everything together to work out what actually happened. Q. Do you have-- A. I didn't know at this point he didn't call the information in. Q. You did know by the time you made the report with the email at 5.52am, didn't you? A. Yeah, at 5.52am I did, yes, yep. Q. He was on shift with you that shift, wasn't he? A. Yep, yep, he was probably gone by this stage. Q. In the seven hours that elapsed, you found out about this not long after that conversation with Leading Senior Constable Gates, didn't you? A. Partially, yes, yep. There was a lot more that happened after this. Q. When do you say you first became aware that Mr Todd didn't put the CAD message with the ADVO reference? A. At 22 - whatever time it was. When, when Leading Senior Constable Gates had that conversation, and when I seen-- Q. You heard the conversation, didn't you? A. I did, yes. Q. You considered it was serious? A. Yep. Q. You didn't talk to him about it? A. No, I didn't. Q. Because it didn't happen, did it? A. It did happen. Findings with respect to Allegations 7, 8 and 9 1. Having observed the demeanour of Leading Senior Constables Gates and Hallam in the witness box under cross-examination, I formed the opinion that both of them were credible witnesses. I accept their evidence over that of the applicant with respect to the conversation he had with Leading Senior Constable Gates when he responded to her inquiry as to why he had not put all the relevant information into the CAD system with words to the following effect: "Cause it's as easy to write off". 2. It follows that, with respect to Allegation 7, I find that the applicant was informed by A of the existence of the ADVO against M but deliberately chose not to record this obviously important piece of information in the CAD system. I agree with the respondent's assessment that this omission adversely impacted on response times and could have placed a person protected by an ADVO at risk (see [6] above). In addition, it is important for the safety and welfare of officers who might respond to such a job, that they have all available information about the situation they are likely to encounter at the scene. 3. I also agree with the respondent's determination with respect to Allegations 8 and 9 for the reasons set out in the Statement of Reasons. It follows that I share the same concerns with the respondent as to his inability to rely upon the applicant's integrity as a police officer if he were to perform policing duties in the future (see [6] above). Allegation 10 1. With respect to Allegation 10, the respondent was not satisfied that the applicant failed to promptly create the CAD message and made no adverse finding in that regard. However, the respondent did find that the applicant did not obtain any details from an informant who spoke to the applicant on the phone and reported seeing three small children wandering the streets of Temora. The respondent considered this to be another example where the applicant failed to act with care and diligence (see [5] and [6] above). 2. I do not propose to give any further consideration to this allegation. The medical evidence Ms Josephine Cannon, Counselling Psychologist 1. The applicant began seeing Ms Cannon on 30 March 2017. 2. In a report to the applicant's General Practitioner dated 4 August 2017, Ms Cannon recorded the following: 3. During the course of counselling Mr. Todd reported the following psychological symptoms: • Depression - feeling flat and empty, lethargic, unmotivated and miserable throughout the day. • Feeling detached to others and lost interests in things he once enjoyed. • Having experienced problem sleeping for over three years and frequent nightmares of "dying or involved in horror situations". • Hypervigilant - worrying about people watching/looking at him and his emails were being monitored. • A lowering of temper/frustration threshold that resulted in frequent rage outbursts. • Avoids people and public places. • Flashbacks - olfactory flashbacks of the smell at some scenes. • Intrusive thinking about the past and the complaints. • Dissociative features - "I feel spaced out and not knowing what's happening around me". • Hyperarousal especially when the telephone rang and immediately thought "here comes another problem I can't fix". • Heightened anxiety level with the accompanying physiological reactions. 4. Diagnosis: Mr. Tood (Todd) possess(es) symptoms consistent with the presentation of Posttraumatic Stress Disorder 309.81 (F43.10) as specified in the DSM-5. 1. In a subsequent report to the applicant's solicitors, Ms Cannon stated: At the initial consultation on 30th March 2017, Cst Todd presented as depressed and somewhat anxious. The Depression Anxiety Stress Scales (DASS) was administered to Cst Todd that day. His test results showed his depression was in the mild range. During subsequent consultations Cst Todd began to relate his experiences in policing and the complaints against him. This re-living of these events caused his psychological state to continue to decline. A number of traumatic experiences were also recounted and further psychological symptoms were reported. Amongst other traumatic memories, Cst Todd described two particular incidents that continue to haunt him - 1. on 15th March 2015 a young female died from a head-on collision with a truck and 2. in early 2016 a deceased person being found in a house. Cst Todd reported visual and olfactory flashbacks on these two incidents. I administered the DASS to Cst Todd on 3rd May 2017. Cst Todd's test results placed his depression and anxiety in the extremely severe range, his stress was in the severe range. ………………………………. Treatment Administered: I have conducted supportive counselling and Cognitive Behaviour Therapy with Cst Todd. Through the initial stage of counselling, a healthy therapeutic rapport was built. Cst Todd began to pay more attention to self care, he played golf once and attended infrequent social outings with his family. A number of trauma memories gradually emerged through the course of consultation. That being said, Cst Todd's psychological state has not settled enough nor legal proceedings completed for trauma therapy to begin. 1. The respondent considered these reports of Ms Cannon before issuing the order removing the applicant from the NSW Police Force. Dr Michael Prior, Consultant Psychiatrist 1. Dr Prior was engaged by the respondent's workers compensation insurer in relation to a workers compensation claim made by the applicant in June 2017. The reports of Dr Prior are not relied upon by the applicant as expert evidence per se. Nevertheless, it was submitted on behalf of the applicant that the opinions expressed in them are persuasive and, in the discretionary weighing of evidence, those opinions may be given appropriate weight. 2. In a report dated 7 September 2017, Dr Prior recorded the history and symptoms as relayed to him by the applicant. Dr Prior then stated: J. DIAGNOS1S 1. Diagnosls i. Chronic Adjustment Disorder with Anxious and Depressed Mood relating to his disciplinary matter and the uncertainty about his career ii. Emergent Post-Traumatic Stress Disorder iil. Mild Alcohol Use Disorder 2. Causation The cause of Mr Todd's chronic Adjustment Disorder is his disciplinary matter, his suspension, ramifications of this financially and on his future, and the possibility that he will be terminated. The cause of his emergent Post-Traumatic Stress Disorder was exposure to traumatic scenarios in the course of his police work. The cause of his mild Alcohol Use Disorder is that this is a secondary phenomenon to both his Adjustment Disorder related to his disciplinary matter and his emergent Post-Traumatic Stress Disorder. 3. Rationale for Opinion I base my opinion upon his mental status examination, the history elicited, my reading of the background material provided, and the fact that he fulfils diagnostic criteria for the above diagnosis, the fact that he does not fulfil diagnostic criteria for other competing differential diagnostic possibilities, together with my education, training and experience, K. SPECIFIC SCHEDULE OF QUESTIONS AS LISTED IN YOUR LETTER OF REFERRAL DATED 23 AUGUST 2017:- • Please confirm the diagnosis according to the DSM-V. For my opinion on diagnosis according to DSM 5 please see J/1 above under the heading 'Diagnosis'. • Please detail the reported mechanism of injury and whether this is consistent with the diagnosis. For the mechanism of injury and my opinion on causation of Mr Todd's indexed psychiatric diagnoses please see section J/2 above under the heading 'Causation'. • Following review of the provided documents and your examination of the worker, are James' current presenting symptoms the result of his suspension from NSW Police in December 2016? Provide your rationale. Mr Todd's current Adjustment Disorder symptomatology and his secondary Alcohol Use Disorder relate to his suspension in December 2016 and ramifications of his suspension. However, his emergent Post-Traumatic Stress Disorder relates to exposure to traumatic scenarios during his service in the Police Force, and predating his suspension in December 2016. • If James had not been subject to professional standards review, would he have any incapacity for work with NSW Police? Mr Todd reported that if he had not been suspended that he would still have been working. He reported that he was stressed by his workload and how he was being treated by his superiors at work, but was still at work prior to his suspension. His suspension and the uncertainty and stress associated with this precipitated his Adjustment Disorder, together with emergent Post­Traumatic Stress Disorder symptomatology and his secondary Alcohol Use Disorder. • What is James' current capacity? If totally unfit, please provide anticipated timeframes that James would be able to participate in a graded return to preinjury duties. Mr Todd believes that he has current capacity to work as a police officer and wishes to do so again, He is not fit, in my opinion, to return to work in his indexed position in his indexed job at Wagga as this would be highly anxiety­provoking and would most likely exacerbate his conditions. Because of his emergent Post-Traumatic Stress Disorder symptomatology, it would be prudent for him to work in an alternative capacity ln the Police Force where he is not exposed to significantly traumatic events. Exposure to further traumatic events will in most likelihood exacerbate and perpetuate his emergent Post-Traumatic Stress Disorder. In my opinion, Mr Todd is fit to commence a graduated return to work program in restricted duties in a different work location where he is not exposed directly to potentially traumatic scenarios or exposed to them vicariously. Any graduated return to work should be overseen by his treating general practitioner and treating psychologist, and preferably he should be referred to a consultant psychiatrist with expertise in the treatment of Post­Traumatic Stress Disorder and be commenced on antidepressant medication, which is one of the arms of the treatment of choice for Post-Traumatic Stress Disorder in conjunction with ongoing exposure-type cognitive behavioural therapy. It is my opinion that it would not be prudent for him to return to frontline duties with the danger of exposure, either directly or vicariously, to further traumatic scenarios without the initiation of aggressive and quality treatment for his emergent Post-Traumatic Stress Disorder. • In your opinion, does James have capacity for work outside NSW Police? If so, please include any alternative work that would be suitable. It is my opinion that Mr Todd does have capacity to work outside the NSW Police Force... He reported that he has trained as a mechanic and could work in this capacity. His psychiatric diagnoses would not preclude him from working ln this capacity. • What is the return to work goal? Same job, same employer Different job, same employer Different job, different employer If different employer, is this a permanent restriction? Because of his emergent Post-Traumatic Stress Disorder, Mr Todd's ideal work goal in my opinion is a different job and a different employer. However, he wishes to return to policing. If he does return to policing, which is his desire currently, then he should return to a different job within the Police Force and not return to working in the Wagga area. As mentioned above, it is my opinion that he should not be doing frontline duties or working in a capacity where he Is directly exposed to further potential traumatic events or vicariously exposed to these. Given the nature of Post-Traumatic Stress Disorder, once established, further exposure to traumatic scenarios will invariably exacerbate and perpetuate this condition. The treatment of choice for an individual diagnosed with Post-Traumatic Stress Disorder is removal from exposure to further potential traumatic scenarios or vicarious exposure to traumatic scenarios, and this is often best facilitated by a change of profession. It is my opinion that these restrictions are permanent. • What is the recommended treatment for James? Include the type, frequency and duration if possible. The recommended treatment for Mr Todd's Post-Traumatic Stress Disorder is exposure-type cognitive behavioural therapy administered by an experienced clinical psychologist, together with appropriate antidepressant medication under the care of a consultant psychiatrist experienced in the treatment of Post-Traumatic Stress Disorder. The treatment of choice for his Adjustment Disorder related to the disciplinary matter is that once this matter is finalised one way or another and he comes to terms with these changes, then his Adjustment Disorder will remit. The treatment of choice for his Alcohol Use Disorder is that he needs to cease alcohol consumption and remain abstinent from alcohol. This will be easier when his Adjustment Disorder ceases and he has had treatment for his emergent Post-Traumatic Stress Disorder. 1. In a supplementary report dated 13 December 2017, Dr Prior stated: You ask the following specific supplementary questions: (a) Your opinion as to whether the worker's injury is wholly or predominantly caused by his anxiety as a result of the disciplinary process and his subsequent suspension. Please provide detailed reasoning. As referred to above in quotations from my indexed report dated 7 September 2017, it is my opinion that the cause of Mr Todd's chronic Adjustment Disorder is his disciplinary matter, his suspension, ramifications of this financially and on his future, and the possibility that he will be terminated. It is possible that his emergent Post-Traumatic Stress Disorder symptomatology contributed to the complaints made against him resulting in the disciplinary action taken against him. He also notes as a background to his suspension that he had a heavy workload that he found stressful and found that he never had enough time to get things done. Although his Adjustment Disorder relates to the disciplinary process and subsequent suspension and ramifications of these, it is possible and likely that his other disorder, his emergent Post-Traumatic Stress Disorder, contributed to some degree to his behaviour resulting in complaints against him, which ultimately resulted in the disciplinary action against him, It is also possible that his workload and the stress he describes as a result of his workload, also contributed. On balance, it is my opinion that his Adjustment Disorder was predominantly caused by the disciplinary process and his subsequent suspension and ramifications these, but not wholly, in that his other disorder of emergent Post-Traumatic Stress Disorder and his workload were vulnerability factors to him developing his indexed Adjustment Disorder. His emergent Post-Traumatic Stress Disorder does not relate to the disciplinary process at all, but relates to exposure to accumulative traumatic scenarios during his service in the Police Force, and predated his suspension and predated the disciplinary action against him. Therefore, his emergent Post-Traumatic Stress Disorder does not relate to his suspension in December 2016 but relates to trauma he was exposed to during his police service generally. (b) Whether, but for the injury resulting from the disciplinary process, he would be fit for employment in his pre-injury duties in Wagga Wagga. Mr Todd's chronic Adjustment Disorder relates to the disciplinary process and but for this disciplinary process he would still be fit for employment in his pre-injury duties in Wagga. However, the disciplinary process did not cause his emergent Post-Traumatic Stress Disorder, which relates to exposure to previous traumatic scenarios he was involved in during his police service. It is most likely that without the disciplinary process and without the disciplinary process precipitating an Adjustment Disorder on top of his emergent Post-Traumatic Stress Disorder, that he would still be fit for his pre­ injury duties in Wagga. However, ultimately, it would be expected that his emergent Post-Traumatic Stress Disorder would be perpetuated and further exacerbated over time with exposure to ongoing traumatic scenarios, and that at some future date, that his exacerbated Post-Traumatic Stress Disorder would negatively impact on his work capacity. Dr Michael Diamond, Consultant Psychiatrist 1. Dr Diamond saw the applicant for an initial assessment on 4 December 2017. In a report to the respondent's workers compensation insurers, Dr Diamond stated: Opinion I have attempted a comprehensive assessment in the limited time available on the first occasion that I saw Mr Todd. He has a history that is highly suggestive of posttraumatic stress disorder, although it appears that he is quiet by nature, uncomplaining and significantly affected by emotional numbing and avoidant symptoms. He has not been demonstrative in expressing his distress. It appears to me that there is strong reason to suspect that he has undergone a significant change in his mental health and in his ability to function in the workplace and that this may have manifested as avoidant symptoms that are associated with the unsatisfactory work performance that has generated internal complaints. It seems that the change in his demeanour in the workplace and in his performance has been dealt with along disciplinary lines in the absence of enquiry about possible effects in relation to work trauma. He appears to be clinically depressed. The most likely work related trauma that is causative of his current condition is the severe motor vehicle accident in early 2016 involving the death of the young woman and his personalised attachment to the scene of the accident site and to the deceased as a result of the visual cues and the search for the presumed missing baby at the time. My view is that Mr Todd has developed posttraumatic stress disorder with comorbid depression but I need to continue the assessment and to further meet with him so as we can formulate a management plan. He is seeing a competent and experienced psychologist who has dealt with many police officers locally at Wagga Wagga and I suspect that he can receive considerable valuable treatment with her over the coming months. My view is that he will need further psychiatric review and treatment and especially assessment of the extent of depressive illness, hyperarousal and the likely role of pharmacotherapy to assist him in recovery. The above views are as far as I can go with regard to diagnosis. His illness is clearly present. It is a question of whether it is primarily posttraumatic stress disorder with co-morbid depressive illness which has to be confirmed. The mechanism of injury in my opinion is related to significant trauma within the workplace. At present Mr Todd's capacity for work within the NSW Police Force at Wagga Wagga is not established. He is in a stressful and non-supportive environment that will not aid recovery for him. He does however express a wish to pursue his career as a police officer if he is able to overcome the Section 181D Notice. He understands that he would best be able to continue to function as a police officer following appropriate treatment and following relocation away from the workplace at Wagga Wagga. Pending further assessment he may benefit from rehabilitation initiatives. My assessment does not identify any co-morbidities that are likely to impact on the management of Mr Todd's condition. My recommendation is that Mr Todd attends again to continue the assessment and engage in appropriate specialist psychiatric management with me at probably four-to-six weekly intervals to begin with and that he continues to see his psychologist and general practitioner locally. Dr Paul Friend, Consultant Psychiatrist 1. Dr Friend was engaged by the applicant's solicitors to examine the applicant and prepare a report for use in these proceedings. Dr Friend was provided with a number of documents including the respondent's Statement of Reasons and reports by Ms Cannon, Dr Prior and Dr Diamond. Dr Friend examined the applicant on 28 June 2018. His report contained the following responses to specific questions asked of him by the applicant's solicitors: In reply to your questions 1. Please provide your retrospective diagnosis of psychiatric conditions by reference to the current DSM, and for each condition provide your opinion in relation to the following: a) The nature, extent and severity of the past presenting symptoms and associated disabilities b) The periods during which each diagnosed condition was suffered or operative c) The probable cause of each diagnosed condition d) The nature and extent of the effect of each diagnosed condition had upon his ability to function, perform his duties as a police officer e) Your opinion regarding the causal connection between each diagnosed condition and his behaviour in the workplace and the various allegations admitted and denied and relied upon by the Commissioner of Police f) Whether in the past he has received appropriate treatment for his illness or conditions Mr Todd following the incident of attending the multi vehicle accident on 17 April 2015 developed symptoms consistent with three psychiatric conditions. He developed an Alcohol Use Disorder consuming at least 28 standard drinks each week of homemade beer. This was in the form of at least four standard drinks each night or day. He also developed the condition of Major Depression. He had a lack of motivation, drive and energy. It was more difficult to get to work. His concentration and memory were impaired. He found it more difficult to remember police procedures and to undertake his duties as a police officer. He also reached criterion for a diagnosis of Adjustment Disorder with Anxious Mood. He was experiencing nightmares as described as a result of the various events in the police particularly the motor accident on 17 April 2015 but also a house fire that he had attended earlier in his police career. He was particularly upset by certain smells anything that would remind him of the house fire particularly cigarette smoke. He was irritable or easily irritated with his children and his wife. He checked every night on the welfare of his children and was generally more concerned about his children particularly about his son, Lincoln getting out of his car seat. He did not avoid work or other situations or other reminders of the various traumatic situations that he had attended because of the nightmares and other symptoms and therefore does not meet category C of the Diagnostic and Statistical Manual of Mental Disorder 5th Edition, for a diagnosis of Posttraumatic Stress Disorder. He did but he did find it more difficult to go work and he avoided contact with other police officers but this could be explained by the condition of Major Depression. He continued to function as a police officer. Mr Todd in his statement states that his wife developed postnatal depression in April 2014 following the birth of their second child on 13 December 2013. He described the relationship starting to fall apart in March 2016. It appears that these conditions had a marked adverse effect on the relationship with his wife and resulted in her having a brief extra marital relationship in December 2015. It therefore appears that the breakdown in the relationship with his wife which although the marriage continues there are still difficulties and the relationship can be attributed to these conditions. It does not appear that the breakdown in the marriage started prior to 17 April 2015. These three conditions arise from the injuries that Mr Todd has suffered in the course of his police career. The most notable one was on 17 April 2015 but there was also a previous house fire. These conditions would adversely affect his ability to function as a police officer particularly regarding his ability to concentrate, retain information, write reports and to follow accepted police procedures. Mr Todd after 17 April 2015 had a loss of confidence about his ability to do police work and tried to get others to check the work that he had undertaken particularly entering documentation as a consequence of having his poor concentration and difficulty following accepted police procedures. It appears that these three conditions were significant factors in the various reported incidents regarding his performance as a police officer. Mr Todd denied not following police procedure and cannot explain some of his actions particularly the incident on 31 March 2016 involving leading Senior Constable Nicole Harmer asking for urgent assistance in the police cells. He also believes he was specifically targeted by Sergeant Brunyee after the ending of Sergeant Brunyee's relationship with his partner, Victoria. Mr Todd has received treatment for his conditions but it does not appear to have been adequate. It was not adequate as regards to the length of treatment which was 6 to 7 sessions of psychological treatment and he was not prescribed any antidepressant medication until the week prior to this examination. 2. Your present diagnosis of psychiatric conditions by reference to the terms of the current DSM Mr Todd currently reaches criterion for diagnoses of Major Depression and Adjustment Disorder with Anxious Mood. He has ceased consuming alcohol in the past week and therefore the condition of Alcohol Use Disorder is currently in remission. He continues to have the symptoms of the conditions of Major Depression and Adjustment Disorder with Anxious Mood, but they are of lesser intensity since he ceased working as a police officer. 3. In your opinion what is the appropriate treatment plan for Mr Todd? Mr Todd should continue to have psychological treatment preferably with Ms Josephine Cannon. He cannot afford the cost of consulting Ms Cannon with the current combined income that he and his wife earn. He would need to a minimum of a further ten sessions of treatment and possibly as many as 20 sessions of treatment over the next 6-9 months. He needs a longer trial of paroxetine and that antidepressant may need to be changed in the future. The current paroxetine trial should be for a minimum of three months in the maximum dose he can tolerate or the maximum dose that is recommended whichever is the lower. If this is unsuccessful he should have a trial of a serotonin noradrenaline reuptake inhibitor antidepressant, such as desvenlafaxine and if required a trial of a tricyclic antidepressant such as nortriptyline. Both these medications should be trialled for at least three months each, in the maximum tolerated dose or the maximum recommended dose, whichever is the lower. I would also recommend the prescription of naltrexone or acamprosate in the recommended therapeutic doses or the maximum doses that he can tolerate, which ever is the lower, to help him maintain abstinence from alcohol. 4. Assuming the appropriate treatment plan that you have identified is implemented, your opinion regarding prognosis and his capacity to perform his duties as a police officer Mr Todd could duties as a general duties police officer with certain restrictions. He should resume working in a different geographical area. It is unlikely he could resume working at Wagga Police Station or in that area. He feels that Sergeant Brunyee, in particular, and others to a lesser extent, have unfairly criticised him and have not been particularly helpful. Mr Todd is keen to resume his career as a police officer and believes he continues to have the skills and capacity to do so. The cessation of alcohol is a good prognostic factor, if that can be maintained. Abstinence from alcohol is likely to have a beneficial effect on the conditions of Major Depression and Adjustment Disorder with Anxious Mood. Mr Todd's relationship with his wife is improving, although they are under financial strain at present because of his reduced income. It is also a good prognostic factor that he has resumed work, albeit installing accessories on motor vehicles but this is work for which he is qualified because of his previous training as a motor mechanic. 1. Under cross-examination, Dr Friend gave the following evidence: Q. Could it be the case as well, Dr Friend, that whilst trauma may manifest itself over a period of time, that the behaviours and ability to function as an individual in day-to-day life or in their professional capacity is also affected by other matters which are not related to their psychiatric condition? A. Of course. Q. And it could be related to the fact that they have other workplace stressors? A. Mmm. Q. And it could be related to the fact that they're just not very good as an individual in terms of what they're doing in their day-to-day job? A. Well, it could be. I mean, those could be factors, yes. Q. And so trying to assign any linkage between a psychiatric condition such as major depression or anxiety disorder to the ability of an individual to function in day-to-day life and perform their work is a very complicated and nuanced evaluation? A. Yes. Q. And what you need to do in identifying that is to try to isolate, if you can, how that traumatic event may have potentially impacted on a person's ability to function, such as their concentration, the ability to sit down and focus on their duties, things of that nature? A. Sure. ………………………….. Q. You say, "These three conditions arise from injuries that Mr Todd has suffered in the course of his police career." So just pausing there, just so we're clear, the three conditions to which you refer in that paragraph are the alcohol abuse disorder, the major depression and the adjustment disorder with anxious mood, correct? A. Yes. Q. And you've ruled out any diagnosis of PTSD? A. Yes, as I've explained. Q. And you've seen I think in Dr Prior's report he referred to emergent PTSD as a potential diagnosis? A. Yes. Q. And you obviously disagree with that potential diagnosis - that-- A. Well, yeah, I mean, this is always a point, is to whether you meet all criteria for post traumatic stress disorder. It's a diagnosis that's used very, in my opinion, very liberally in regard to trauma and I've tried and I think I've explained to you why I believed he didn't meet the strict criteria for that. Now, we could argue about the criteria. You know, are they useful or not? But they're what we've got. …………………………… Q. Now, given the workplace stressors appear to start in early 2016, would you agree that, given the proximity in time is much closer than the traumatic event in 2015, it is entirely possible it is the workplace stressors associated with the workplace complaints that led to the conditions or at least contributed the conditions in a much stronger way than a traumatic event? A. Well, contributed to the conditions, yes. Now, very hard to say which had the greatest impact. Q. And trying to disentangle them is obviously not a science. It involves a degree of latitude and impression? A. Yes. Q. Given your expertise? A. Yes. Q. But it's hard for you to say with any level of scientific precision just to say a particular traumatic event contributed a particular percentage to the manifestation of particular symptoms? A. Yeah, it's virtually impossible. 1. In my opinion, the medical evidence set out above falls short of establishing a causal connection between the applicant's mental state and the sustained allegations against him which formed the basis of the respondent's decision to remove him from the NSW Police Force, especially with respect to Allegations 1, 4, 7, 8 and 9. There is disagreement among the medical experts, in particular between Dr Prior and Dr Friend, as to whether or not the applicant was suffering from PTSD as a result of exposure to traumatic events as part of his work as a police officer. 2. Dr Diamond stated: "It appears to me that there is strong reason to suspect that he has undergone a significant change in his mental health and in his ability to function in the workplace and that this may have manifested as avoidant symptoms that are associated with the unsatisfactory work performance that has generated internal complaints. It seems that the change in his demeanour in the workplace and in his performance has been dealt with along disciplinary lines in the absence of enquiry about possible effects in relation to work trauma". 3. In relation to his diagnoses of Alcohol Use Disorder, Major Depression and Adjustment Disorder with Anxious Mood, Dr Friend stated: "These conditions would adversely affect his ability to function as a police officer particularly regarding his ability to concentrate, retain information, write reports and to follow accepted police procedures". 4. In my assessment, these expressions of opinion fall short of "reliable medical evidence" of the sort referred to by the Full Bench (Boland J, President, Staff J, Backman J) in the following passage from Corrective Services NSW v Danwer ([2013] NSWIRComm 61 at [57]-[59]): 57 We have considered whether there are any mitigating factors in relation to the respondent's conduct. The evidence about that is not very clear. On the one hand, there was the evidence of Dr Tony Robinson who had a doctorate in clinical psychology and practised as a clinical psychologist. Dr Robinson stated: There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time. 58 On the other hand, Dr Robinson said in a later report that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." Further, the respondent had undergone a series of sessions of "focussed psychosexual treatment". 59 If there had been reliable medical evidence that the respondent's conduct had been caused or contributed to by mental or physical illness that may have been a factor to be taken into account in mitigation: see Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14; Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57. However, there was no medical evidence (a clinical psychologist is not a medical doctor nor a psychiatrist) and even if Dr Robinson's evidence could have been regarded as such, it was inconclusive for the purpose of any consideration about mitigation. 1. I am unable to find that the failings of the applicant in his role as a member of the NSW Police Force, which led to his removal from the force, were attributable to his mental health issues. 2. If anything, the medical evidence relied upon by the applicant suggests that returning him to the NSW Police Force and exposing him to the traumatic experiences that police officers regularly encounter as part of their day to day work could well have a detrimental impact on his mental well-being. The legislative scheme 1. Relevant sections of the Police Act are set out below: Division 1B Summary removal of police officers in whom the Commissioner does not have confidence 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (6) (Repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. …………………………. Division 1C Review of Commissioner's decision under Division 1B 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. Determination 1. I have given consideration to the respondent's Statement of Reasons, as I am required to do by section 181F of the Police Act, and am in general agreement with it. I have also considered the case presented by the applicant, including the medical evidence and the evidence about the significant impact that his removal from the NSW Police Force has had on him and his family. However, I have determined that the order removing the applicant from the NSW Police Force was not harsh, unreasonable or unjust. 2. Further, I have had regard to the public interest which is taken to include the interest of maintaining the integrity of the NSW Police Force and I am unable to disagree with the conclusion reached by the respondent to the effect that the applicant has regularly failed to meet the standards of conduct and performance that the respondent rightfully expects of sworn members of the NSW Police Force. 3. The application by James Todd for review of the respondent's order removing him from the NSW Police Force is dismissed. 4. I so order. John Murphy Commissioner ********** 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: 07 August 2019