Industrial Relations Commission New South Wales Medium Neutral Citation: Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057 Hearing dates: 1 and 2 April 2019 Date of orders: 20 August 2019 Decision date: 20 August 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Application dismissed Catchwords: POLICE – removal of police officer – review of removal order – whether conduct undertaken while off duty was undertaken in course of duties - whether decision harsh, unreasonable or unjust Legislation Cited: Crimes Act 1900 (NSW) ss 91H, 91HA Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW) s 128 Police Act 1990 (NSW) s 181D, 181E, 181F, 213 Industrial Relations Act 1996 (NSW) s 82, 84, 164A Cases Cited: Attorney-General for New South Wales v Perpetual Trustee Company Limited (1954) 92 CLR 113 Baker v Commissioner of Police [2015] NSWIRComm 14 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2 Dolan v Australian and Overseas Telecommunications Corporation 114 ALR 231 Gilmour v Commissioner of Police (2009) NSWIRComm 51 Glasbrook Bros v Glamorgan County Council [1925] AC 270 Hosemans v Commissioner of Police (2004) 138 IR 159 Marland v R [2017] NSWCCA 277 Police Service Board v Morris and Martin (1985) 156 CLR 397 Shepherd v Martin (1991) 55 SAST 367 Starr v Commissioner of Police [2001] NSWIRComm 226 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 Category: Principal judgment Parties: Justin Storey (applicant) Commissioner of Police (respondent) Representation: Counsel: P Madden (applicant) J Darams (respondent) Solicitors: Benjamin & Khoury (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2018/129621 Publication restriction: Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further Order of the Commission, there shall be no publication of the following material:(a) The material contained in the affidavit of [REDACTED] made 26 April 2016 and the statement of [REDACTED] made 26 April 2016, the name of [REDACTED], the position occupied by [REDACTED] and the information contained within the documents referred to above, being the affidavit and statement, may not be published or broadcast.(b) There should be no publishing or broadcasting of the "[REDACTED]" web page referred to in material relied on in this matter and where any of the material referred to above is contained in other documents relied upon or filed in the Commission, there should be no publication of that material. DECISION 1. The applicant was a Senior Constable with the NSW Police Force until 9 April 2018, when he was removed by way of an Order made by the respondent under s 181D(1) of the Police Act 1990 (NSW) due to the respondent's loss of confidence in the applicant's suitability to continue as a police officer ("the Removal Order"). 2. The Statement of Reasons accompanying the Removal Order ("the Statement of Reasons") sets out the reasons for the respondent's loss of confidence. 3. On 23 April 2018 the applicant filed with the Commission an Application for Relief in relation to Unfair Dismissal pursuant to s 181E of the Police Act. On 5 December 2018 the applicant filed, with the consent of the respondent, an amended Application for Relief pursuant to s 181E of the Police Act ("the Application"). 4. The matter was conciliated unsuccessfully on 31 May 2018 at which time directions were set for the filing and service of evidence and a non-publication order was made. 5. The Application was heard on 1 and 2 April 2019. 6. At the hearing, the applicant sought, and was granted, a certificate under s 128 of the Evidence Act 1995 (NSW). The privilege against self-incrimination is intended to protect the innocent and guilty alike and "it is … wrong to permit an adverse inference from the exercise of the privilege against self-incrimination": Dolan v Australian and Overseas Telecommunications Corporation 114 ALR 231 at 242. The Commission has drawn no inference, adverse or otherwise, from the fact that the applicant sought the certificate. 7. The applicant relies on the following: four affidavits sworn by him on various dates: 15 October 2018 ("Exh A2"); 29 January 2019 of 14 pages ("Exh A3"); 29 January 2019 of 19 pages ("Exh A4"); Confirmation of Appointment in Rank of Constable of Justin Storey dated 10 June 2010 ("Exh A5"); a NSW Police Service Intelligence Information System Information Report Summary in respect of an incident which took place on 14 June 2009 ("Exh A6"); and two reports by Dr Allan Watt dated 27 March 2019 ("Exh A7") and 29 March 2019 ("Exh A8"). 8. The respondent tendered: a bundle of documents and USB referred to as the Commissioner's Confidence Documents ("Exh R2"); the Expert Report of Dr Peter Chapman dated 10 December 2018 ("Exh R3"); and an affidavit of Detective Superintendent Brett McFadden affirmed 10 December 2018 ("Exh R4"). 9. The applicant, Dr Watt, Dr Chapman, and Detective Superintendent McFadden were cross-examined. 10. The parties agreed at the outset of the hearing that it was not in contest that images relied upon by the respondent in respect of the allegations substantiated by the respondent are child abuse material and/or child pornography. On that basis, it was not necessary for the Commission to make a factual finding about whether the images are child abuse material and/or child pornography and the Commission did not view the relevant images. Powers of the Commission on review 1. Section 181D of the Police Act gives the respondent the power to remove an officer where the respondent no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. 2. A person who is the subject of a decision to remove him or her from the Police Force may apply for a review of that decision pursuant to s 181E of the Police Act. Section 181E relevantly provides: 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). 1. The manner in which the Commission must conduct the review is set out at s 181F of the Police Act: 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. (a) 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: (i) the interests of the applicant, and (ii) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1). 1. The hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 ("Hosemans") at [134]. 2. Section 181F requires the Commission firstly to consider the respondent's reasons for the decision to remove the applicant from the Police Force, which are those set out in the Statement of Reasons. 3. It is then for the applicant to make out a case that the decision to remove him from the Police Force was harsh, unreasonable or unjust: the Police Act, s.181F(2). 4. The purpose of the respondent's case is, as the Police Act provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. If the applicant advances any evidence or argument that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the respondent: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78]. 5. Proceedings for review pursuant to s 181E of the Police Act are "essentially the same as the unfair dismissal regime" of the Industrial Relations Act 1996 ("the IR Act') "subject to specified modifications" (Hosemans at [97], [104]). 6. "Harsh, unreasonable or unjust" in these proceedings have the same meaning as that given to them in proceedings under Part 6 of the IR Act: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 ("Tredinnick (No. 1)") at [20]. However, the test as to whether the removal of the applicant pursuant to s 181D of the Police Act was harsh, unreasonable or unjust is not identical to that test in the IR Act: Tredinnick (No. 1) at [21] – [29]. 7. The Commission must take into account matters set out in s 181F(3)(b) of the Police Act which the Commission, in an application brought under s 84 of the IR Act, does not have to consider. Amongst other things, in determining an application pursuant to s 181E of the Police Act, the Commission must have regard to a "public interest" which, because it is partly defined at s 181F(2)(ii), is not the same as the "public interest" referred to in s 146(2) of the IR Act: Commissioner of Police v Eaton [2013] HCA 2 per Heydon J (at [27]). 8. Finally, "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case": Starr v Commissioner of Police [2001] NSWIRComm 226 at [140]. Respondent's Statement of Reasons 1. The first matter that the Commission is required to consider in this case is the respondent's reasons for the decision to remove the applicant from the Police Force (s 181(F)(1)(a) of the Police Act). These are set out in the Statement of Reasons which is subject to the non-publication order made on 31 May 2018. 2. In the Statement of Reasons, the respondent sets out, amongst other things: the three allegations against the applicant which were notified to the applicant in the notice dated 20 October 2017 issued by the respondent to the applicant pursuant to s 181D(3)(a) of the Police Act and served on the applicant on 26 October 2017 ("the Notice"); the respondent's consideration of the applicant's response to the Notice dated 21 December 2017 ("the Applicant's Response to the Notice"); and the respondent's determination to make the Removal Order. The Notice and the Applicant's Response to the Notice are subject to the non-publication order. 3. The Statement of Reasons sets out the background which led to the sustained allegations against the applicant. 4. The website [REDACTED] was investigated [REDACTED] [REDACTED] 1. [REDACTED] 2. The email address jus_au@hotmail.com is an email address used by the applicant. 3. On 9 May 2014, Detective Sergeant Jason Brooks applied for and obtained warrants to intercept mobile phones belonging to the applicant. During the interception Detective Sergeant Brooks identified a number of images and several videos showing baby boys being circumcised. 4. On 6 August 2014 Detective Sergeant Brooks executed a search warrant on the applicant's address. During the search, Detective Sergeant Brooks spoke to the applicant's father, Mr William Storey. Mr William Storey told the Detective Sergeant that he did not use the computer in the applicant's house and he did not have an active email account. Ms Leonie Storey, the applicant's mother, said she had two email accounts and provided details of these. 5. A number of devices were seized during the search, including computers, a hard drive and mobile telephones. A number of child abuse images were identified. Detective Sergeant Brooks assessed the images using the Child Exploitation Tracking Scheme ("CETS") Scale. The CETS Scale has six categories. Overall Detective Sergeant Brooks assessed the images as mainly being in categories 1, 2, 3, 4 and 6. They are: Category Type Guide 1 Depictions of children with no sexual activity. Nudity, surreptitious images showing underwear/nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination. 2 Non-penetrative sexual activity between children for solo masturbation by a child. Explicit sexual activity not involving an adult. 3 Non-penetrative sexual activity between child(ren) and adult(s) Mutual masturbation and other non-penetrative sexual activity. 4 Penetrative sexual activity involving child(ren) and adult(s) Including, but not limited to intercourse, cunnilingus and fellatio 6 Animation/cartoon/CGI depicting CETS scales 1 - 5 Any animations, cartoons, drawings or computer-generated imagery depicting any of the set scales (1 - 5) 1. According to Detective Sergeant Brooks, material including the following was found on PC tower X0002937028: 1. child abuse images located in the thumb-cache, which he assessed as falling within categories 1, 2 and 4 of the CETS scale. Some of the images involve young boys; 2. child abuse images located in the deleted area of the disc, which he assessed as falling within category one of the CETS scale some of the images involve toddlers/infants; 3. images located on the hard drive including images of young underage males, a young female, and a number of photographs of what appeared to be the applicant's bedroom with soft toys placed around the room one image is of a young male holding up a sign that states "Hi Justin"; 4. "Eraser guide" which states that it is an advanced security tool allowing a person to completely remove sensitive data from a disk drive; and 5. Introduction to Computers and Computer Crime (Cybercrime). 1. Detective Sergeant Brooks states that amongst other things, the following material was found on PC tower X0002937027: 1. child abuse images located in the thumb-cache, which he assessed as falling within categories 1, 2, 4 and 6 of the CETS scale. Some of these images involve very young boys; and 2. child abuse images located in the deleted area of the disc, which he assessed as falling within categories 1, 2 and 4 of the CETS scale; 1. Allegation 1 involves a sustained finding that the applicant accessed child abuse material and child pornography. 2. Allegation 2 involves a sustained finding that the applicant attempted to download child abuse material and child pornography. 3. Allegation 3 involves a sustained finding that the applicant was in possession of child abuse material and child pornography. 4. The applicant admits to: accessing child abuse material and child pornography; and downloading or attempting to download the illegal content. However, the applicant has consistently asserted that he was using investigative techniques, such as "honey-potting" in performing his official duties, in order to identify the offender and type of (potential) crime for the purposes of [his] preliminary investigation. The applicant says that even if he was not actually engaged in specific police duties, he was acting reasonably in connection with his police duties, because although he was off duty, he believed he was engaged in investigative duties. 5. In respect of Allegation 3, the applicant admits that he used internet search terms such as "naked toddler boy", accessed the offending website, reviewed the offending material and later deleted the offending material. The applicant denies Allegation 3 because he says he was performing, or believed he was performing his official duties and because he was unaware that the offending material was in the thumb-caches on his computer. 6. In making the Removal Order the respondent was satisfied that the applicant did not access, download and attempt to download the relevant material as part of his duties as a police officer for reasons including: that the applicant appeared to use the investigative techniques, such as honey-potting at least two years prior to joining the NSW Police Force; and there was no evidence that the investigation of a "cybercrime", in particular, the detection of child abuse material, ever formed part of the applicant's official duties. 7. The respondent noted that the NSW Police Force has specialist units such as the Child Abuse and Sex Crime Squad who have the required expertise to conduct investigations of matters involving child abuse material and determined that the applicant's online activities were simply not authorised. 8. The respondent did not accept that even if the applicant had been tasked with the detection of child abuse material, which he was not, that he "would have been allowed to do so while off duty, from the comfort of [his] own home while using [his] own will be electronic devices". The respondent noted that none of the applicant's asserted suspicions were recorded by way of intelligence reports and the applicant submitted that he did not trust the security measures in place on COPS. Accordingly, even if the applicant's stated enquiries were successful, the integrity of any evidence would be so compromised it would likely be inadmissible in any criminal proceedings. 9. The respondent noted that in an email dated 3 December 2014, to Detective Sergeant Phillip Moore, Departmental Professional Officer, State Electronic Evidence Branch, stated that he had been unable to prove a possession offence for the computer provided and that Mr Moore went on to say: I did locate the pictures in the cache, which means they did at one point exist on the computer, however whether the POI had any knowledge of them or even their contents is unconfirmed. 1. The respondent also notes that Mr Moore stated he "was able to locate indications that files containing child abuse material was at one point in a folder on the desktop of the computer, X0002937027" but "the indications do not substantiate a possession charge". 2. The respondent took into account the matters referred to at paragraphs [41] and [42] and the matters admitted by the applicant and set out at paragraph [36] and additional evidence showing that the applicant: 1. had some caches on his computers containing images of child abuse material albeit the actual file location could not be established; 2. possessed images of child circumcision; and 3. possessed images of young underage males. 1. The respondent was satisfied that the applicant possessed child abuse material and that Allegation 3 was substantiated. 2. The respondent found that the applicant displayed contempt and disrespect for the law, the New South Wales Police Force and the applicant's Oath of Office. The respondent took into account the applicant's submissions regarding statutory defences. The respondent determined that the defences were not applicable as they are contingent on the applicant acting in the course of his duties, which the respondent found the applicant was not. 3. The respondent also considered that the applicant's assertion that he accessed the relevant material in performing his "official duties", and his purpose for accessing the material was to collect evidence to be used in police investigations, demonstrated the applicant's complete lack of insight into the serious nature of his actions and his role as a police officer in the NSW Police Force. 4. The respondent did not consider that failure to examine the police computers the applicant used, for material to support the applicant's assertion that he was engaged in the investigation of internet-related crime was a denial of fairness. 5. The respondent determined that the applicant's activities went to the very heart of his personal judgement and integrity. The respondent found that he could no longer rely on the applicant's integrity as a police officer and the nature and gravity of his misconduct was such that he could see no mitigation or reasons for the applicant's actions that would provide the respondent with any basis not to lose confidence in the applicant's suitability to remain a police officer. 6. For the purposes of s 181D(1), the grounds for the respondent's decision are "conduct" and "integrity". 7. On its face, the Statement of Reasons complies with the requirements of s 181D(4) of the Police Act, in that the reasons provide a basis for the removal action taken by the respondent: Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]. The applicant's case 1. The second matter for the Commission's consideration is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust. 2. The applicant has an onus to show why the Removal Order, was harsh, unreasonable or unjust. 3. The applicant admits much of the factual basis underpinning the Allegations but seeks to contextualise these admissions. 4. The applicant asserts that when he was a teenager his computers were hacked and child abuse material would appear on his screen, which he would erase when he discovered it. The applicant states in Exh A2: 24. On occasion, the hackers were able to locate my place of residence and threatened me by sending pictures of the mail with obscured face placing a letter into the letterbox at the front of my domicile. These pictures were sent through a crime fighting forum and was sent as attachments. There were three images, including two of the house and one of a male with a digitally skewered face placing the letter in the letterbox. I received the letter and it contained printouts of posts made on a crime-fighting Internet forum. 1. The applicant says that on a computer that was seized by the respondent's Professional Standards Command are the images of his house and the male placing a letter in his letterbox that establish that he was the subject of harassment as a teenager. 2. The applicant says that the online extortion or sextortion and online bullying suffered by him as a teenager had a long-lasting impact upon him and led to him developing an interest in cybercrime including: scam baiting, advanced fee fraud, romance scams, identity theft and phishing. 3. The applicant says that he has brought phishing and security breaches to the attention of its victims or possible victims, such as Telstra and Nokia. 4. The applicant relies on a printout from a webpage at "fishtank.com" to support his claim that he had identified cyber-crime such as phishes. This document does not contain any information that identifies the applicant as "Pwnage", the party who, according to this document, undertook the 2,805 searches which established the 42,237 verified phishes. 5. The applicant relies on a copy of an email to "Telstra Bigpond Security" which is undated and contains none of the usual detail found in an email header, such as an email address for the recipient, to establish that he brought security breaches to the attention of Telstra. 6. In Exh A2, the applicant deposes that Nokia thanked him for his correspondence and provided him with a phone after he informed Nokia that someone had gained unauthorised access to a server run by the Nokia Corporation. The applicant says that this phone was seized during the search of his premises and that he "suspected that the phone might be an attempt to put [him] in possession of a phone that was amenable to spyware". 7. The applicant says that while "studying at high school" he started learning means of fighting internet-based schemes but learnt that "fighting against hackers located globally as a lay individual had great limits" and he decided to become a police officer. 8. The applicant was attested as a probationary constable on 18 December 2008. The applicant says that after this, although he admits that he was not tasked by a senior police officer to go and investigate internet crime or child abuse offences, he was endeavouring to be vigilant in detecting and preventing such crime, and he brought to the attention of the Police Force matters of concern which he had identified on the internet. He says that his admitted conduct, downloading or attempting to download illegal material and contacting the [REDACTED] website administrator, was in the context of collecting preliminary evidence to be used in police investigations. 9. The applicant says that he utilised an investigative technique known as "honey-potting" involving the personation of victims and offenders at different levels and in various ways particular to the type of crime being investigated. 10. He says he performed his general duties of policing during the day while rostered and, bearing in mind the history of cyber-bullying and exploitation suffered by him, he addressed cybercrime in his own time, in his mind acting in the course of his policing duties. He says that an officer does not stop being an officer at the end of a rostered shift, and he is aware of other officers doing police work in their own time such as preparing briefs of evidence. 11. The applicant relies on Exh A6 which is an intelligence report dated 15 June 2009 about a person with a particular username on YouTube uploading clips of assaults occurring in the applicant's local area. The applicant says this evidence shows when, in his mind, he had sufficient information to further action a matter he did so and when he had a matter he could identify as being local in his area in which he could assist, he would assist and make a record. 12. The applicant says that he performed non-internet related policing duties and engaged in an investigation while he was off duty and he describes these in Exh A3. The applicant says that there were occasions when he was not rostered that he: applied for AVOs; identified a woman via Facebook making self-harm threats and made a dispatch to enable other officers to attend to her; and completed an intelligence report concerning a person impersonating a police officer. 13. The applicant says that his reason for not making a COPS event record about his investigations was that he could not identify any offender, the offences were occurring overseas, he did not have enough information to make an event, and he wanted to keep the information he had gathered and was gathering secure. 14. The applicant says, in addition to the fact that he was acting, or believed he was acting, in the course of his policing duties when downloading the material that was on the thumb-caches, Allegation 3 is not made out because he was unaware of being in possession of the thumb-caches, he was never charged, and the presence of them in the thumb-caches is not sufficient to establish Allegation 3. 15. The applicant says that the Commission should reject the submission that the applicant's conduct demonstrates a lack of insight inconsistent with what is expected of a police officer because officers make mistakes and not all mistakes call for the ultimate sanction of removal. 16. The applicant submits the matters which weigh in his favour when assessing the factors which impact upon his interest pursuant to s 181F(3)(a) of the Police Act include: 1. the loss of a promising and stable career in the New South Wales Police Force; 2. the reduction in income and consequential financial hardship, and those financial consequences; 3. the removal of the smear associated with being an officer dismissed under s 181D of the Police Act on loss of confidence grounds and the damage to his reputation, particularly in circumstances where the grounds of removal involve a stigma of being associated with allegations relating to child abuse material; 4. he has been removed for the conduct he engaged in while he was acting in good faith or certainly at least under a belief that he was acting in the course of his police duties; 5. as a consequence of the applicant not making COPS entries, the lack of records available to the applicant to establish the veracity of his claims about fighting cyber-crimes; and 6. the delay the respondent has taken in determining he has lost confidence in the applicant and the fact that he has been "in limbo" since August 2014. 1. The applicant says the Removal Order was harsh when assessed against his evidence concerning his investigations into child abuse material and his evidence about his belief that he was on duty investigating crime. 2. The applicant submits that the contravention of relevant policies of the NSW Police Force was not a matter relied upon by the respondent in the Removal Order and the Commission should not make any adverse finding against the applicant for his failure to conform strictly with the relevant policies and procedures. The applicant says that if the Commission accepts that he failed to conform with the NSW Police Force Conflict of Interest Policy this does not warrant removal. 3. The applicant relies on s 213 of the Police Act which provides: 213 Protection from personal liability A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten). and submits if the Commission finds that this section does not apply, s 213 of the Police Act coloured the applicant's thinking to such an extent that he considered that what he was doing was acting within the course of his duties. This was a belief honestly held by the applicant and removal for acting within what he understood to be the course of his duties removal was unfair in all the circumstances. 1. The applicant says that his subjective belief is also relevant when the Commission turns to considering matters such as harshness because the Commission needs to look at all the circumstances of the matter including the officer's subjective belief at the time he is engaging in the conduct which underpins the Removal Order. 2. The applicant seeks reinstatement to his former position, continuity of service and any other order the Commission sees fit. The applicant deposes in A2: I do not seek compensation for these amounts [related to post opportunity for promotion and higher wage increments] or any type of "back pay". The respondent's case 1. The third matter required by the Police Act to be considered by the Commission is the case presented by the respondent in answer to the applicant's case. 2. As the applicant admits he engaged in the conduct that sustains Allegations 1 and 2 there is no contest between the applicant's and the respondent's cases on these matters. 3. Allegation 2 that was sustained was that there was an attempt to download the child abuse material. The applicant's admissions went further in respect of Allegation 2, and under cross-examination, the applicant admitted that he did download child abuse material. 4. The respondent submits that on the basis of the applicant's admissions the applicant has engaged in the conduct that sustains the first two Allegations that were relied upon by the respondent to lose confidence in his ability to remain a police officer. 5. In relation to the applicant's assertion in respect of Allegation 3, that possession of the material cannot be made out because the applicant was not aware that the thumb-caches were on his computer, the respondent says : 1. the applicant admitted downloading the material, retaining it on his computer and then at some stage deleting it; 2. the child abuse images in the thumb-caches which the applicant accepted in cross-examination were those images that he had previously downloaded from the internet were in computers and storage devices that he owned, that he had control of, or in his house or his parents' house where he lived; and 3. the materials were possessed by the applicant in accordance with the Crimes Act definition of "possession" and the fact that the applicant did not know that the images were still on his computer is irrelevant for the purposes of the definition of possession under the Crimes Act. 1. The respondent submits that on the applicant's own evidence, in his own case, he has not discharged the onus to satisfy the Commission that he was conducting NSW Policing duties, and the applicant's subjective belief about what he was doing is irrelevant. The question is whether as a matter of fact he was conducting or discharging NSW Policing duties. 2. The respondent says that there was no evidence presented in the applicant's case that demonstrates that the applicant was engaging in NSW Policing duties when he was engaging in the behaviour in the substantiated Allegations. Further, the applicant accepted or admitted in cross-examination: 1. he was not instructed or directed by another NSW Police officer to engage in the communications with the administrator of the "[REDACTED]" being the communications he engaged in using the pseudonym "[REDACTED]" or engage in communications using that pseudonym; 2. he did not obtain the authorisation of a NSW Police officer either before or after he had communications with the administrator of the "[REDACTED]" using the pseudonym "[REDACTED]"; 3. he was not instructed or directed by a NSW Police officer to access or download child abuse images or child pornography; 4. he did not obtain the authorisation of a NSW Police officer either before or after he accessed or downloaded those images; 5. he could not identify any NSW crime or offence in the records that he was investigating at the time that he engaged in that conduct; and 6. child abuse was a serious crime that should be recorded in COPS, and he knew how to, and did, use COPS regularly during his policing duties including in circumstances when he had not known who the offender was, but he did not record the fact of those communications and/or the fact that he had accessed and downloaded child abuse images or child pornography in COPS or in another record. 1. The respondent submits that the evidence establishes that at no stage at all was the applicant conducting NSW Policing duties and if the Commission accepts that then there is no basis upon which the Application can succeed. 2. Although the respondent says that on the applicant's own evidence, the applicant's case fails, the respondent relies on the evidence of Detective Superintendent McFadden. Detective Superintendent McFadden sets out his qualifications and experience in Exh R4 including: 10. During my service in the NSW Police Force, I have had extensive experience in the full range of operational, investigative and emergency management responsibilities. This includes extensive experience and awareness of covert and overt investigative strategies. 11. Relevantly, I have direct experience in relation to child abuse matters, including infanticide; the management of registerable persons on the child protection register; and investigations including the management of risk and allegation of resources for contemporary and historical child abuse matters. … 1. I accept that Detective Superintendent McFadden is well placed to give evidence to the Commission about operational and investigative processes within the NSW Police Force, including the proper and usual conduct of investigations in relation to child abuse matters and the expectations of Police Officers in performing these investigations. 2. In his affidavit, Detective Superintendent McFadden responds to the affidavit of the applicant which is Exh A3 and states: 16. All general duty police officers are required to comply with the NSW Police Force's Computerised Operational Policing System User Guide (COPS User Guide). Relevantly, the COPS User Guide at page 9 provides that "the [Computerised Operational Policing System for the NSW Police Force] enables you to enter and enquire on the details of any persons, organisations, locations, objects and vehicles that are of interest to police. Any of these become of interest to police when they are involved in criminal or non-criminal activities (the details of which are also recorded), which come to the attention of police during the performance of their duties". 1. Detective Superintendent McFadden annexes a copy of the COPS User Guide to his affidavit. The COPS User Guide states: Whenever you attend a criminal or non-criminal activity (and which is not a purely internal administrative matter) you must record details of that activity by creating an event. 1. Detective Superintendent McFadden continues: 18. During the course of his policing service, records show that Mr Storey completed one thousand, five hundred and seventy (1570) events and one hundred and sixteen (116) information reports on the COPS. … … 22. I have reviewed the recorded police reports and have identified three (3) information reports and 11 (11) events submitted by Mr Storey, which are relevant to the issue of sexual incidents concerning children. None of these reports relate to the personal and private investigations alleged by Mr Storey to have been undertaken by him. … … The activities Mr Storey says he conducted whilst off duty and in his private capacity were associated with the abuse of children. These are illegal activities that were not protected by the authority of a controlled operation pursuant to the Law Enforcement (Controlled Operations) Act of 1997 Mr Storey had no authority to conduct such investigations. 26. Moreover, Mr Storey does not have the required training, experience or qualifications to undertake investigations into serious and sensitive criminal investigations, which relevantly include child abuse material and/or child sexual assaults. Investigations into these matters are conducted through the use of experienced investigators utilising well-established investigative practices and police equipment and resources. Any investigative opportunity into child abuse material identified and reported by Mr Storey would not have been investigated by Mr Storey but would have been assessed for a local investigation by Detectives or considered to investigation by the Child Abuse and Sex Crime Squad attached to the State Crime Command. 27. If a police offer in the NSW Police Force identifies, or suspects, that a crime has occurred, they are expected to do the following: a. Record the incident or information on to the COPS, ensuring all entities (name, address, vehicles, communication mediums) are recorded and linked to each other; b. Ensure any source information, photographs, statements, are copied and uploaded as electronic attachments to the report; and c. Ensure any child abuse material is provided to a supervisor to be recorded in the NSW Police Force's Exhibits Forensic Information and Miscellaneous Property System (EFIMS). … 31. It is critical for police officers to report and record crime and information through the use of events and information reports in a timely manner. This is to ensure that the review function is incorporated into the COPS are undertaken by supervisors and intelligence officers, who assess the nature of risk for those involved, and particularly for children; to identify the most appropriate investigative response and opportunities based on that information; and to prevent the incidence continuing. Relevantly, this is a significant issue to prevent the immediate risk of serious harm to children as a result of the actions and abuse by adults for sexual gratification. The need to engage specialist investigative strategies and relevant welfare services to stop the abuse are primary considerations. 32. I find it concerning that a police officer would carry out investigative activities while they are off duty and with their own digital devices. This is inconsistent with expectations of police generally for all aspects of crime and the management and protection of sensitive information. … 1. At paragraphs [35] – [37] Detective Superintendent McFadden responds to paragraphs [54] and [55] of the applicant's affidavit which is Exh A2 and says that there are no COPS entries in relation to Mr Chalkley or in relation to video footage where the applicant was able to identify the offence locality. 2. Following the issue of a Summons to Produce by the Commission on 25 January 2019, the applicant's representatives and the respondent's representatives engaged in correspondence about the Summons and the COPS entries recorded on Annexure BM-3 to Detective Superintendent McFadden's affidavit. Subsequently, Exh A6, an intelligence report about a person with a particular username on YouTube uploading clips of assaults occurring in the applicant's local area submitted by the applicant and dated 15 June 2009 was identified and produced to the applicant. Detective Superintendent McFadden was cross-examined about this document and whether there may be COPS reports made by the applicant that were not identified by Detective Superintendent McFadden. 3. The respondent submits that the applicant's evidence about his current belief that he was engaging or still conducting NSW Policing duties when he was engaging in the conduct underpinning the Allegations, continues to demonstrate a lack of insight and judgment by the applicant and that is a relevant consideration. 4. The respondent submits that the conduct is at the gravest level of misconduct, and on a balance of probabilities the conduct was criminal, specifically the downloading and accessing, was criminal under the Criminal Code Act 1995 (Cth) and possession was criminal under the Crimes Act. 5. On the matters that the Commission must have regard to pursuant to sub-s 181F(3) of the Police Act the respondent submits that the only matters of personal interest of the applicant are the usual matters that one relies upon, that is a loss of their job and the financial consequences that arise from that. These are the usual consequences, nothing out of the ordinary of those matters. Further, the Commission does not have in this case, any statements of the kind that the Commission can have regard to in terms of Mr Storey's policing conduct and behaviour and the statements of fellow officers who might have worked with him. There's a lack of that information that could provide any assistance to the Commission. 6. The respondent says there are a number of matters in respect of the public interest to which the Commission should have regard in determining this matter. 7. The first of those is the public interest in ensuring that the most vulnerable in society are protected. The respondent says that child abuse and exploitation of children is abhorrent, and because there was no record or oversight of the applicant's conduct, the Commission cannot know the extent to which the applicant's conduct increased the risk of exploitation to children. 8. The respondent says the Commission cannot know when the applicant was having these communications, or accessing these websites, or whether the people who control these websites were thereafter generating the images or obtaining the images from somewhere. The respondent submits that the Commission should accept that the applicant's conduct led, at least, to the risk that his conduct would result in exploitation and it led to a risk of a furtherance of exploitation, the sharing of images, the distribution of images. 9. The respondent says the second matter which is important in terms of the public interest consideration is that the clear public interest in ensuring that those who are vested with the special privileges and powers that come with the office of being a member of the New South Wales Police Force understand when they can properly use and deploy those powers, so that they use them in a just and reasonable manner: Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 at [219]. 10. The final matter to which the Commission must have regard in relation to the public interest, the respondent submits, is the respondent taking the decision to remove the applicant. 11. In reply to the applicant's submission that he had made some mistakes and there should be no removal based upon those mistakes the respondent says that the applicant's evidence is that he still believes that what he was doing was right, and the inference that is open to the Commission is that if he was placed in this position again, he would act the same way. 12. Related to that proposition according to the respondent is the applicant's own evidence in page 123 of JJS-2, that the applicant did not use COPS or create a record in COPS because he was worried about the security of the data: I would have submitted similar information in relation to sexual material if I had such information, as I would never allow a child to be continually sexually abused if I had information that could stop it, and would have acted upon such information. However, I did not wish to make a general record on the COPS system about my activities as I was concerned about information control. 1. The respondent says that there is no evidence that the computers which were seized which had these images were hacked. However, in circumstances where the applicant was concerned about hacking, and concerned about the security of the intelligence he says he was gathering, the applicant decided to store that material on his own computers. The respondent says this demonstrates why the applicant lacks the sufficient insight to be reinstated and to be a New South Wales Police Officer. 2. Balancing all of those matters, in the respondent's submission, the public interest is served by confirming the order or upholding the order and dismissing the application. 3. The respondent submits that s 213 of the Police Act has no operation in the circumstances of this case. This section is directed to circumstances such as where a police officer is effecting an arrest and they injure someone and in those circumstances the officer will not be personally liable. The respondent says that s 213 does not provide protection to the applicant because he says that he was acting in good faith. The respondent says that an officer must be doing something, conferred or imposed by or under the Police Act to be protected. 4. The respondent says that at no stage is there a reference to delay in the Application. If there had been a claim that delay was relevant then the respondent could have met this with evidence and explained and the applicant cannot simply raise this issue as a factor in closing submissions. The fact that it could have been met with evidence demonstrates necessarily the unfairness to the respondent. Consideration 1. The applicant admits he engaged in the conduct that sustains Allegations 1 and 2. There is no evidentiary burden to establish the conduct. 2. Despite the admissions by the applicant about the downloading and accessing of the images that are those that are in the thumb-caches, the applicant submits that Allegation 3, being in possession of the child abuse images, is not made out because: he was unaware of being in possession of the thumb-caches; he was never charged; and the presence of the images in the thumb-caches is not sufficient to establish Allegation 3. It is necessary then to consider the respondent's case with respect to Allegation 3: Treddinick (No. 2) at [78]. 3. Mr Moore's view referred to in the Statement of Reasons that although there were indications that the images had at one point been on the computer these indications could not substantiate a possession charge is not determinative in this matter. A criminal possession charge must be established beyond reasonable doubt. In this matter, the elements of possession need only be established on the balance of probabilities and since 2014, the applicant has made concessions about the material in the thumb-caches. 4. The applicant deposes to the following in Exh A2: 94. As its name already suggests, cache file refers to a file (or folder) hidden from the user of a Windows operating system without the user's intention or knowledge. 95. I was not privy to the existence of the thumb cache file(s) referred to by the Police Commissioner. I believed the corresponding image would be erased totally upon the original file being removed. … 96. In relation to the deleted files, I have deleted them as they did not sufficiently serve my investigative reason to retain them, and sometimes to impersonate an offender processing such material, as I was aware that I was being "watched" by someone that I thought to be an offender who was connected to the creation/distribution of voyeuristic material. 97. If I would have been aware of the existence of the abusive images in my thumbcaches, I would have deleted them, as they did not serve my investigative reason to retain them. 98. I was not in possession of any abusive material apart from those I believed that would support my preliminary investigation on Internet-based crimes, or that was used to convince attackers watching me that I was not so investigating, as I believed that I could convince them that I was interested in those materials. 1. Section 91H of the Crimes Act 1900 (NSW) relevantly provides: 91H Production, dissemination or possession of child abuse material (1) In this section: … possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)). … (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. 1. Section 308F(2) of Crimes Act 1900 (NSW) relevantly provides 308F Possession of data with intent to commit serious computer offence … (2) For the purposes of this section, possession or control of data includes: (a) possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and (b) control of data held in a computer that is in the possession of another person (whether the computer is in this jurisdiction or outside this jurisdiction). 1. In the Expert Report of Dr Chapman he provides the following opinion: 59. As it is possible for any image that is accessed by a computer to have a small copy placed into a thumb cache database, it is theoretically possible for images that were copied to a computer by hacker using remote administration malware to be located in the thumb cache database. … 62. Noting that the deletion of image files on a computer could be undertaken by an authorised user or an un-authorised external attacker, it is theoretically possible for images that were copied to a computer by hacker using remote administration malware to be located in the "deleted area of disk". 63. It is my opinion the most probable reason for child abuse images to be located in the thumb cache and unallocated clusters of [the applicant]'s computer is that [the applicant] knowingly accessed child abuse images on his computer and deleted them at some point. I base this opinion on the following observations: a. While not always the case, in my knowledge and experience it is almost always the case that images present within a thumb cache file have been located there as a result of the authorised user browsing files in an "icon" you using the default Windows Explorer application, b. [The applicant] states that he had actively sought out websites with child abuse material as part of his "investigations" in paragraph 55 and 62 [of exhibit A2]. Given [the applicant]'s self-directed education on computer security, these statements suggest to me that [the applicant] would be aware that child abuse images would be stored on his computer through his actions in "investigating" child abuse sites, at the very least in the temporary Internet file cache and also if he directly saved any images to his computer, c. The deletion of the temporary Internet cache, or any direct storage of images undertaken by [the applicant], would result in the original images being removed from the file system however the data were from those files would persist in unallocated clusters (the deleted area of the disc) unless they were overwritten by new files. The deletion of the original images would likewise not have a direct effect on any thumb cache copies of the images, and these would also persist for a period of time. 64. It is also my opinion that it is exceedingly unlikely that the child abuse images present in the thumb cache of [the applicant's] computer were there as a result of an external attacker using malware to place child abuse material on Mr Storey's computer. I base this opinion on the following observations: a. Some "attacks" described by [the applicant] (particulate screen "flashing" and brightness changes relative to his eye focus), are incongruent with my understanding of how remote administration malware generally functions and also the motivations of the majority of potential external attackers. b. To go to the effort and extent of attacking [the applicant] in some of the ways he has outlined in paragraph 22 and 24 of [Exh A2] (particularly the camera and physical surveillance described) would require exceptional technical skill and access to substantive physical resources. To be subjected to criminal attacks to this degree would be extraordinary in my opinion and would require motivation and resources beyond what is reasonably likely for organised cybercrime organisations to process, c. I find many of the statements made by [the applicant] regarding his amateur online cybercrime investigations are incongruent and unlikely to be true (paragraphs 28, 69-72). While it may be possible for a self-taught cyber security amateur to identify and report a "phishing" site to a relevant authority, it is entirely different to having the capacity to perform in "dismantling of criminal websites and other infrastructure". Without the capacity to financially damage organised cybercriminal groups, I cannot see any reason why an organised cybercriminal group would expend the resources to "attack" [the applicant] in the ways he has outlined in paragraph 22 to 24. 65. The only discernible reason I can see why an attacker would place child abuse images on another person's computer would be to "plant" evidence against that person and then report him to the local authorities, or to extort that person with a threat that they would do so. Neither the alleged attacker, nor [the applicant] appear to have reported the illegal picture files that were placed on [the applicant] 's computer at any stage. The images found on [the applicant]'s computer will only been identified following an investigation by the [REDACTED] that did not initially target [the applicant]. 1. In reply to the expert evidence of Dr Chapman the applicant deposes to the following (Exh A3): 29. In the paragraphs 57-59, Dr Chapman gives his opinion on the question raised by the respondent if it is "possible for child abuse images to be located in [my] PC towers in the form of "thumb caches" as a result of "hacking" or "attacks" on [my] computer(s)". I believe that the child abuse images were placed in my computer in the form of thumb caches for the following reasons: a. As a result of "hacking" or "attacks" exercised by attackers; and b. Due to my access to the images as part of my duties. 30. Regardless of the reasons for the existence of the thumb caches images, … I was not aware of the existence of such thumbcache images. If I was aware, … I would have removed the files if they did not support my preliminary investigations. 31. In relation to paragraph 60-63, I indicate that I would have deleted and not have retained such images, if I would have been aware as to the existence of same. Additionally, I removed such files permanently by overwriting them, so I am uncertain why there would be such images within the deleted area of the disc. 32. In paragraph 63, Dr Chapman opines that I have "knowingly accessed child abuse images on [my] computer and deleted them at some point". I partly agree with his opinion and add the following. As deposed above and in my Show Cause Notice Response dated 21 December 2017 and affidavit filed 15 October 2018, I have accessed such images as part of my preliminary investigation to identify Australian victims and/or offenders and to impersonate an offender. When I was unable to identify that the victim was Australian or locate sufficient proof to commence further investigation, I permanently remove the files as they did not support my preliminary investigation and deleted them securely, so that they would not be contained within the deleted sectors. This occurred during my time as a police officer, I was unaware of the images that remained in my computer in the form of thumbcache. 1. During cross-examination of the applicant about the material in the thumb-caches, Counsel for the respondent and the applicant engaged in the following exchange: Q. Okay, so I'll go back again. There's no issue that the images in the thumbnail cache were child abuse material or - well, child abuse material. No issue about that, correct? A. Correct. Q. There's no issue that they were located on computer devices that you owned, that were under your control, correct? A. Correct. Q. What I'm suggesting to you is that, in those circumstances, you possessed the child abuse material in accordance with the definitions in the Act. Do you agree with that? A. Yes. Q. So in light of the fact that Allegation 3 in part relied upon this possession under this Act, do you now accept that in relation to Allegation 3 that there is no longer an issue in terms of the possession of these images? Do you accept that now? A. No. Q. You don't accept that now? A. No. Q. And why don't you accept that now? A. Because, as I said, I was unaware that they had been cached in that area. 1. In his expert report, Exh A7, Dr Watt says, in response to the question "Based upon your knowledge and experience, and applying the Assumptions, what are the most likely or probable explanations for how child abuse images (as categorised by CETS) have come to be identified on Mr Storey's PC towers in the form of thumb-caches? 7.8.1 In no order of priority I have listed probable explanation is that how child abuse images have come to be identified on Mr Storey's PC, as follows: a. Mr Storey deliberately downloaded himself. b. Mr Storey could have downloaded a zip file from a website or through a P2P application and then opened the zip file and unbeknown to him prior to it that it contained CAM. … c. A virus has directed his browser to a webpage, that contained the material and that material was clicked on and appeared on the screen of the computer. d. A hacker with remote access to his computer has uploaded the files to his computer, the files being in a folder that was viewed remotely, causing the "thumbcache" to be populated with thumbnails. d. Someone else was using his PC, either directly or remotely. 1. The respondent's counsel cross-examined Dr Watt about the above evidence and the following exchange occurred: Q. Dr Watt can I ask you to go to page 11 of your report. Just ask you to refresh your memory of the questions you were asked in paragraph 7.8? A. Yes. Q. If I understand your evidence, you give five possible hypotheses or alternatives as to how those images which were identified as child abuse images on Mr Storey's computer device might come to be there? A. Yes. Q. Mr Storey gave evidence this morning that he accepted that those images were images that he had downloaded from the internet, you accept that he gave that evidence? A. Yes okay. Q. The question I want to put to you is now with that evidence, it seems that the explanation is in paragraph 7.8.1(a) A. Yes. Q. So can we assume that the explanations in (b) (c) (d) (e) given that evidence don't apply? A. Yes I was just answering the question that was provided in my instructions. 1. In summary, the applicant admits downloading child abuse images, retaining these images on his computer and then at some stage deleting these images. The applicant accepted in cross-examination that the child abuse images in the thumb-caches were in computers and storage devices that he owned, or that he had control of, or that were in his house or his parents' house where he lived. Further, the applicant accepted that the images in the thumb-caches were the images that he had previously downloaded from the internet and the evidence of the expert, Dr Watt, under cross-examination, is that the reason that the thumb-caches were on the devices was because the applicant had downloaded the images. 2. On the basis of the admissions of the applicant and the evidence of Dr Watt I do not consider that the child abuse images on the thumb-caches were placed there by a hacker. The admissions and concessions of the applicant and the evidence of Dr Watt, on the balance of probabilities, which is the standard of proof in this instance, establish the elements of possession in s 91H of the Crimes Act. 3. Section 91HA(1) of the Crimes Act provides a defence to offences against s 91H of the Crimes Act as follows: 91HA Defences (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. 1. The parties did not address the relevance of the defence under s 91HA in any substantive way but I have considered whether the applicant could make out the defence. In Marland v R [2017] NSWCCA 277 the Court of Criminal Appeal considered the legal burden of proof in respect of defences and stated: 9. In CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25, the High Court held that the common law principle that an honest and reasonable, but mistaken, belief in facts that would render an act innocent is a ground of exculpation that applies to s 66C(3) of the Crimes Act. The Court held that once an accused has satisfied the evidential burden of leading evidence of such a belief (as occurred in the present case), the legal burden of proof rests on the prosecution "to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of sixteen years" (at [35]). The parties to the present proceedings accepted both at trial and on appeal that these principles were also applicable to s 61M(1) and s 61N(1) of the Crimes Act. 10. The position is otherwise in respect of an offence under s 91H(2) due to s 91HA(1), which relevantly provided for a defence as follows: "It is a defence in proceedings for an offence against s 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material." 11. It was common ground between the parties that the applicant bore the onus of establishing this defence on the balance of probabilities. 1. In order to make out the defence in s 91HA, the applicant carries the burden to prove, on the balance of probabilities, that he did not know, and he could not reasonably be expected to have known, that he possessed the child abuse material. Even if I accept that the applicant went to significant efforts to delete the material, and that he did not know that the thumb-caches were still on the devices, he must also prove on the balance of probabilities that he "could not reasonably be expected to have known" that the material that he downloaded would be retained in the thumb-caches. 2. The applicant has prosecuted his case on the basis that, in the course of his duties outside of his rostered hours and at home, he has used internet-based investigation techniques, such as honey-potting to trap cyber-criminals and that he has studied cyber-crime. The applicant has described his conduct as involving personation of victims and offenders at different levels and in various ways peculiar to the type of crime being investigated which I have taken to involve a reasonable level of sophistication and knowledge of information technology. As set out above at paragraph [111], Dr Chapman refers to the applicant's "self-directed learning" and opines that the applicant should have been aware of the operation of temporary Internet file caches. 3. The applicant did not lead evidence that establishes that he could not reasonably be expected to have known that the thumb-caches were on his computer. The evidence of Dr Watt, the applicant's expert, did not go to whether the applicant could not reasonably have known that the thumb-caches were on his computer but dealt with the applicant's assertion that the material was placed by a hacker and Dr Watt's evidence under cross-examination is extracted above at paragraph [115] was that the only explanation for the images being on the thumb-caches is that the applicant deliberately downloaded the material himself. The applicant has not met his burden to make out the defence under s 91HA. 4. I agree with the respondent that on the basis of the applicant's admissions and the objectively ascertainable evidence, the applicant has engaged in the conduct that sustains the three Allegations that were relied upon by the respondent to support the Removal Order. 5. I turn to consider the applicant's submission that he was engaging in the conduct that sustains all of the Allegations in conducting NSW Policing duties. 6. I accept the applicant's evidence that he engaged in a practice of identifying phishing and that he notified Telstra and Nokia about phishing and security breaches, and that the applicant accepted a phone provided to him by Nokia. This evidence does not establish that in engaging in the detection of cyber-crime outside of his workplace and outside of work hours he was engaging in NSW Police duties. 7. The applicant's acceptance of the phone from Nokia in gratitude or compensation for the applicant's notification to it implies that the applicant did not consider that he was acting in his capacity as a NSW Police officer but was rather acting in his personal capacity and thus it was appropriate to receive a reward or compensation from Nokia. Further, the applicant did not make any COPS reports about these matters. 8. I agree with the respondent's submission that the applicant accepted or admitted in cross-examination by the respondent's counsel the matters set out at paragraph [82]. The applicant was not instructed or directed by another NSW Police officer to engage in the communications with the administrator of the "[REDACTED]" or engage in communications using the pseudonym "[REDACTED]". The applicant did not obtain the authorisation of a NSW Police officer either before or after he had these communications. The applicant was not instructed or directed by a NSW Police officer to access or download child abuse images or child pornography and he did not obtain the authorisation of a NSW Police officer either before or after he accessed or downloaded those images. The applicant could not identify any NSW crime or offence in the records that he was investigating at the time that he engaged in that conduct. 9. I have considered the applicant's evidence at paragraph [6] of Exh A3 that he does not recall receiving the COPS User Guide. I have also considered the applicant's evidence in cross-examination that he used COPS on a daily basis and he knew that if he detected a crime he was required to record it in COPS, subject to "discretion" as follows: Q. Well, if you identified or saw a crime or offence being committed, should you not have recorded that in COPS? A. It's up to the individual officer. If they see something and decide not to record it, they-- Q. Okay, can I just understand your answer. You say in the course of performing your policing duties you see a crime or offence being committed or you come to the view a crime or offence is being committed, and then you decide whether or not to record that in COPS. Is that the effect of your answer? A. Generally we make records, yes. … Q. Okay, let's forget about traffic offences. What about I'll say more serious crime. You're aware of a more serious crime than a traffic offence has been committed or occurred? A. Yes. Q. What's your discretion to record that in COPS? A. Well, generally if it's a serious crime and it occurs at a defined location, then there's a need to record it. Q. And the production and dissemination of child abuse material, would you record that as a serious crime? A. It is a serious crime, yes. Q. And if you were aware that you could access child abuse material from a website and download it into your computer in Australia, would you accept that that's something you would record in COPS? A. Generally, yes. Q. Likewise, if you were engaging in correspondence by email with the administrator of such a website, that's something that you would have to record in COPS, correct? A. Generally, yes. Q. In relation to COPS and events that are recorded on there, generally speaking, the other things that are recorded in relation to that particular event include things you've done or, sorry, things that a police officer has done in respect of that crime or offence, correct; narratives? A. Yes. Q. You understand that COPS is available to access by other police officers? A. Yes. Q. It's also available, including - sorry, including more senior officers who might be reviewing more junior officers' conduct? A. Yes. Q. For example, they might review it to see whether or not they're, that is, the more junior officer is performing their duties properly? A. Yes. Q. That they're recording events in relation to a crime or an offence accurately? A. Yes. Q. Or in enough detail to assist other users of the information on the system? A. Yes. 1. On the balance of probabilities and based on the applicant's evidence and that of Superintendent McFadden, I accept that the applicant understood, or ought to have understood the purpose of COPS and the importance of recording relevant information in the COPS system and despite this he failed to make any reports in relation to the child abuse material which he admitted to downloading and accessing. 2. The applicant says that he was viewing material, he was seeing whether he could identify any victims, any locations where those victims might be, and because the material was not in New South Wales, his jurisdiction, in his mind he could not assist the police any further in relation to their investigation. Consequently, he continued his honey-potting, and he did not make a record or notify any other officer of what he was doing so as to ensure his method of investigation was not compromised. 3. I do not accept the matters asserted by the applicant as set out in paragraph [130] are proper reasons for the applicant not recording information gained through his interactions with the "[REDACTED]" website in COPS. The applicant knew child abuse was a serious crime that should be recorded in COPS. I accept the evidence of Superintendent McFadden that a COPS event is recorded even when an offender is not known, and a COPS event should be recorded if the crime, or suspected crime or incident, occurs outside New South Wales. 4. There was no evidence that the applicant reported the sextortion deposed to by the applicant including the images of his house and the male placing a letter in his letterbox to the NSW Police or any other law enforcement body. Further, Dr Chapman opines at paragraph [64(c)] of his report, that he "cannot see any reason why an organised cybercriminal group would expend the resources to "attack" [the applicant] in the ways he has outlined". However, I accept the applicant's evidence that these images exist and that he was impacted by this and "became anxious about the safety of [him]self". 5. The fact that the applicant did not notify any other officer of what he was doing when engaging with the child pornography website [REDACTED] so that he could continue to engage in honey-potting and other covert investigative techniques raises serious questions as to his judgement. The applicant was exposing himself to the possibility of further extortion, and given the earlier experiences by him of sextortion about which he gave evidence, he should have had a heightened concern about engaging with websites which contain pornography and child abuse material and undertaking honey-potting outside established systems. The applicant's anxiety about his safety may provide a reason for why the applicant engaged in the behaviour in which he did, although I note parenthetically that there was no medical or psychological evidence to support this. However, the applicant's anxiety about earlier sextortion does not in any way support a finding that the applicant was performing police duties when he engaged in the conduct of accessing and downloading child abuse material without the knowledge, let alone the approval, of his superiors. 6. The applicant says that he performed non-internet related policing duties and engaged in an investigation while he was off duty and he describes in Exh A3 three occasions of significance. I accept this evidence of the applicant but note that none of these occasions involved cyber-crime. 7. The applicant relies on Exh A6 which is an intelligence report dated 15 June 2009 about a person with a particular username on YouTube uploading clips of assaults occurring in the applicant's local area. The applicant says this evidence shows when, in his mind, he had sufficient information to further action a matter he did so and when he had a matter he could identify as being local in his area in which he could assist, he would assist and make a record. 8. In light of the admissions set out at paragraph [82] I do not consider the fact that the applicant made this report is evidence that establishes that the applicant was acting in accordance with his obligations and duties as a police officer in accessing and downloading child pornography and child abuse material and in not making any reports of the child pornography and child abuse material until he could establish that the child pornography and child abuse was taking place in New South Wales. One significant difference between the applicant identifying and later reporting this assault discovered while using YouTube and the applicant accessing and downloading of child abuse material and then waiting until he could identify if the child abuse was taking place locally is that in viewing the YouTube clip of the assault, the applicant was not engaging in accessing and downloading material which would be classified under the CETS Scale, not engaging in a potential crime. 9. The applicant cites in the Applicant's Response to the Notice a number of authorities which he says support his submission that he was acting in the course of his duties and the applicant's Counsel referred broadly to these authorities in closing submissions. The applicant relies on these authorities to establish, amongst other things: "a police officer is never off duty": Shepherd v Martin (1991) 55 SAST 367 at 370; a constable acts with, and exercises, original authority Attorney-General for New South Wales v Perpetual Trustee Company Limited (1954) 92 CLR 113 at 119; and an officer's "absolute and unconditional" duty is "to take all steps which appear to them to be necessary for keeping peace, for preventing crime, or from protecting property from criminal injury": Glasbrook Bros v Glamorgan County Council [1925] AC 270 at 277. 10. The applicant's submissions in this case did not address in any detail how these authorities apply in the applicant's circumstances and the respondent did not deal in a substantial way with these authorities. 11. If I accept the submissions made by the applicant in the Applicant's Response to the Notice that these authorities support the proposition that the applicant was never off duty and that he was required to take all steps for preventing crime, then the facts in this matter do not establish the applicant's case that he was acting in the course of his duties. 12. If the applicant was acting in the course of his duties, and bearing in mind his evidence that he was being watched by an offender who he thought was connected to the creation and/or distribution of voyeuristic material, he would be expected to record his investigations and his engagements with purveyors of pornography and child abuse in COPS or elsewhere, and he would have taken steps to ensure that his superiors in the NSW Police Force were aware of his investigation, if only to avoid further incidents of his own sexploitation. By engaging in honey-potting without the knowledge of his superiors the applicant has not taken steps which would appear to a reasonable person to be necessary for preventing crime but rather provided an opportunity for those persons he believed were watching him to engage in further crime. 13. On the basis of the applicant's admissions and his failure to lead evidence to establish his claim that he was engaging in NSW Policing duties when he was engaging in the behaviour in the substantiated Allegations, I am satisfied that the applicant was not engaging in NSW Policing duties when he accessed child abuse material and child pornography, attempted to and did, download child abuse material and child pornography and possession of child abuse material and child pornography. 14. The applicant's alternative case is that the applicant believed he was investigating or conducting policing duties and that all three Allegations should be considered in light of his unchallenged evidence about online bullying and extortion which coloured the way the applicant sees internet crime and his conduct. The applicant says that the cases he cites in the Applicant's Response to the Notice go to his state of mind at the relevant time that he was engaging in this course of conduct and that the Commission would find that what he was doing was reasonable and that he ought not to have been removed for it. 15. The applicant says that his subjective belief is also relevant when the Commission turns to considering matters such as harshness because the Commission needs to look at all the circumstances of the matter including the applicant's subjective belief at the time he is engaging in the conduct which underpins the Removal Order. 16. In closing submissions, Counsel for the applicant said: ... The evidence and the applicant's submission is this. That with hindsight he could have done things better. He is still of the view that he was acting within the course of his duties however I submit if the Commission were to reject that, to reject the applicant's - to say that he was incorrect when he considers that he was still in the execution of his duties, that that belief has coloured his perception of the investigations that he was undertaking such that those investigations were done in good faith. They were reasonable in his mind and that removing him for that conduct was in all the circumstances … harsh, unjust or unreasonable. 1. The applicant's evidence does not establish that the respondent acted in a way which signalled or implied it approved of, tacitly or explicitly, the applicant's behaviour in investigating crimes outside of work or to imply that such approval would be granted. The respondent's evidence, which I accept, is that child abuse and child pornography matters are investigated by Child Abuse and Sex Crime Squad. The task of a general duties police officer is to take a complaint, enter it in the system and then refer it to the Child Abuse and Sex Crime Squad to investigate. Despite his submissions to the contrary, the applicant's conduct was completely at odds with this process. 2. The applicant's subjective belief that he was conducting policing duties was unfounded and in these circumstances his subjective belief that he was conducting policing duties is not relevant. 3. I agree with the respondent that s 213 of the Police Act has no operation in the circumstances of this case. This section is directed to circumstances such as where a police officer is effecting an arrest and they injure someone and in those circumstances the officer will not be personally liable. Section 213 does not provide protection to the applicant because he says that he was acting in good faith. An officer must be doing something, conferred or imposed by or under the Police Act to be protected. 4. Based on the material before me I am satisfied that the finding by the respondent that the three Allegations have been substantiated was correct. Matters required to be considered by s 181F(3) 1. The Police Act sets out at s 181F(3) matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and the public interest. The interests of the applicant 1. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. 2. It is clear that the effect of the Removal Order, including the loss of a stable career in the NSW Police Force and the reduction of income and the consequent financial hardship on the applicant is great. It is so in the case of any sworn police officer removed from the Police Force, of course, but the effects will be different in fact and degree in each case. In this case, the applicant has not mitigated the financial impacts by seeking to find other employment because he says he "was unable to imagine [him]self working other than as a police officer". 3. The applicant is potentially subject to stigma and significant reputational damage as a consequence of being removed for reasons associated with allegations relating to child abuse material. Against this consideration, however, must be weighed the seriousness of the conduct which led to the removal of the applicant and that the fact that the applicant engaged in "honey-potting" which resulted in the applicant accessing and downloading child abuse material assessed as falling within categories 1, 2, and 4 on the CETS Scale. 4. I do not consider that the lack of records, which is a result of the applicant not recording his investigations in COPS or disclosing his conduct to superiors, is a relevant matter which weighs in favour of the applicant. 5. The applicant submits that the delay in the investigations, firstly criminal and then departmental, is a further factor which adds to the overall unfairness of his removal: Gilmour v Commissioner of Police (2009) NSWIRComm 51, at [17]. 6. The applicant says that his life has been in limbo since August 2014 when he was informed that he was being investigated, and the criminal investigation having commenced in May 2014. On 16 December 2015 the applicant was told that the investigation had reverted from a criminal to a non-criminal departmental investigation. On 13 September 2016 the applicant was provided with an investigator's report dated 4 August 2016, to which he responded on 6 October 2016. On 6 December 2016 the applicant was told that he was suspended without pay. He was served with the s 181D notice on 26 October 2017. The applicant responded to the notice on 21 December 2017 and was removed on 6 April 2018. 7. The length of time that the investigations have taken is a matter relevant to the Commission's consideration of harshness but against this consideration, must be weighed the seriousness of the conduct which led to the removal of the applicant, the fact that a criminal investigation [REDACTED] was being undertaken, and criminal charges were considered but not pursued. Public interest 1. I am obliged to balance the effect of the Removal Order on the applicant against the proposition, which I accept is a valid one, that there is no place in the Police Force for persons who undertake activities in the pursuit of self-perceived justice without legal authority, or who otherwise acts outside their authority. 2. Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins [2008] NSWIRComm 162 at [58]. 3. The public interest is prescribed by the Police Act to include the public interest of maintaining the integrity of the Police Force, and also to include the fact that the Commissioner made the order pursuant to s 181D(1). 4. I bear in mind that a person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the Police Force as set out by his Honour Justice Brennan in Police Service Board v Morris and Martin (1985) 156 CLR 397 at 412: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. 1. It is in the public interest that the respondent act so as to preserve the integrity of the Police Force by removing persons who access and download child abuse material for their own means even if the persons considered that they were doing so in the pursuit of justice and who cannot accept, even at conclusion of the hearing of this matter that his actions were not done in the course of his duties. 2. There is the clear public interest in ensuring that those who are vested with the special privileges and powers that come with the office of being a member of the New South Wales Police Force understand when they can properly use and deploy those powers, so that they use them in a just and reasonable manner: Van Huisstede v the Commissioner of Police [2000] NSWIRComm 97 at [219]. 3. There is a significant public interest in ensuring that the most vulnerable in society are protected. Child abuse and exploitation of children is abhorrent, and I agree with the respondent that because there was no record or oversight of the applicant's conduct, the Commission cannot know the extent to which the applicant's conduct increased the risk of exploitation to children. 4. The Commission does not know, and cannot know, when the applicant was having these communications, or accessing these websites. I accept that the applicant's conduct led, at least, to the risk of a furtherance of exploitation, including on the basis of the applicant's evidence, the risk of further exploitation of the applicant. 5. The respondent's reply to the applicant's submission that the applicant made some mistakes but there should be no removal based upon those mistakes is that the applicant still believes that what he was doing was right, and the inference that is open to the Commission is that if he was placed in this position again, he would act the same way. I agree with the respondent. 6. I also agree with the respondent that in circumstances where the applicant was concerned about hacking, and concerned about the security of the intelligence he says he was gathering, the applicant's decision to store that material on his own computers demonstrates why the applicant lacks the sufficient insight to be a New South Wales Police Officer. Summary and disposition of the matter 1. Given my findings in relation to the three Allegations and balancing the matters relied upon by the applicant in his interests and set out at paragraphs [150] – [155] and the matters relevant to the public interest set out at paragraphs [157] – [166], it is clear to me that the removal of the applicant from the NSW Police Force was neither unreasonable nor unjust. The public interest is served by upholding the order and dismissing the Application. 2. I have taken into consideration all of the applicant's submissions in relation his interests and his circumstances. I assess the applicant's conduct to be sufficiently serious, such as to militate against a finding that his removal was harsh. 3. The applicant has not met the task required of him under the statutory scheme, if the review is to succeed, of establishing that the removal of the applicant from the Police Force is harsh, unreasonable or unjust: s 181F(2) of the Police Act. Consequently, I cannot uphold the Application. Orders 1. The Orders I make in this matter are: 1. The application for review pursuant to s 181E of the Police Act by Justin Storey is dismissed; 2. Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further Order of the Commission, there shall be no publication of the following material: 1. The material contained in the affidavit of [REDACTED] made 26 April 2016 and the statement of [REDACTED] made 26 April 2016, the name of [REDACTED], the position occupied by [REDACTED] and the information contained within the documents referred to above, being the affidavit and statement, may not be published or broadcast. 2. There should be no publishing or broadcasting of the "[REDACTED]" web page referred to in material relied on in this matter and where any of the material referred to above is contained in other documents relied upon or filed in the Commission, there should be no publication of that material. N J Constant Commissioner ********** Amendments 07 November 2019 - Corrected paragraph numbering. 08 November 2019 - Redaction in paragraph 111. 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: 08 November 2019