Guru v Commissioner of Police [2019] NSWIRComm 1080

Industrial Relations Commission New South Wales Medium Neutral Citation: Guru v Commissioner of Police [2019] NSWIRComm 1080 Hearing dates: 5, 6 and 9 August 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: POLICE – application for review of removal order – allegation that applicant pushed a person's head into the back of a police vehicle – allegation that applicant drove at speed and then applied the brakes suddenly causing injury to a person being transported – allegation that applicant recorded false information and gave untruthful evidence in the Local Court – allegations substantiated – application dismissed Legislation Cited: Crimes Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002 Police Act 1990 Road Transport Act 2013 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Rahul Guru (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr P Madden (Applicant) Mr J Darams (Respondent) Solicitors: Mr M Treharne, Walter Madden Jenkins Solicitors (Applicant) Ms V Anderson, Maddocks Lawyers (Respondent) File Number(s): 2018/00380943

DECISION 1. Prior to his removal from the NSW Police Force on 3 December 2018, the applicant, Rahul Guru, had been a serving police officer for approximately seven years, having been attested as a Probationary Constable on 4 May 2012. He was stationed at Auburn Police Station, part of the Flemington Local Area Command. 2. Pursuant to an order made by the respondent, the Commissioner of Police, pursuant to section 181D of the Police Act 1990, the applicant was removed from the force following findings made by the respondent with respect to five allegations against the applicant. Those findings were set out in the respondent's Statement of Reasons which accompanied the section 181D Order in the following terms: Allegation 1 I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 2 October 2015, you pushed James Ra's head into the back of NSW Police Force vehicle 'Flemington 18', while Mr Ra was being searched by Constable Ryan Metcalfe. ……………………………… Allegation 2 I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 2 October 2015, while driving 'Flemington 18' on duty, you occasioned injury to James Ra by deliberately and harshly applying the brakes from a high speed, on two occasions, causing Mr Ra to collide with the front of the prisoner module. ………………………………. Allegation 3 I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 2 October 2015, while driving 'Flemington 18' on duty, you: • travelled in excess of the 60kph sign posted speed limit on Parramatta Road, without lawful reason or excuse; and • engaged in reckless driving. ………………………………… Allegation 4 I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that you recorded false information in official NSW Police Force records by recording that James Ra had hit his own head inside the police vehicle in: • your official police notebook; • COPS Event E60498955; and • Facts Sheet for charge H59229434. …………………………………. Allegation 5 I am satisfied, on the balance of probabilities, although having regard to the seriousness of the allegation, that you were untruthful, or less than fully frank, in your evidence under an Affirmation in the Local Court on 8 May 2017, and you maintained that untruthful evidence in your response to the investigation dated 11 September 2017. In particular, I find that you were untruthful, or less than fully frank, in relation to: • the manner in which you say Mr Ra sustained injuries while in the back of 'Flemington 18'; and • your reckless driving, whilst exceeding the sign posted speed limit on Parramatta Road, Homebush, and braking harshly on two occasions. 1. The incidents that gave rise to these allegations against the applicant occurred during the early hours of Friday 2 October 2015 when the applicant and his partner, Constable Ryan Metcalfe, attended the Lidcombe Hotel to deal with a complaint concerning a hotel patron, James Ra. This was the second occasion during their shift on which the two officers had attended the hotel to deal with Mr Ra. 2. The applicant has, pursuant to section 181E of the Police Act, applied to this Commission for a review of the respondent's order on the ground that the removal was harsh, unreasonable or unjust. 3. Pursuant to section 181F of the Police Act, in proceedings such as these, the Commission must firstly consider the respondent's reasons for the decision to remove the applicant from the NSW Police Force.