Industrial Relations Commission New South Wales Medium Neutral Citation: Pace v Commissioner of Police [2020] NSWIRComm 1005 Hearing dates: 25, 26, 27, 28 June, 3, 4 July, 24 October, 21 November 2018 Date of orders: 12 February 2020 Decision date: 12 February 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Stanton Decision: The application for review pursuant to s 181E of the Police Act by Darryl Pace is dismissed Catchwords: POLICE – removal of Police Officer – review of removal order – non-publication Order made pursuant to s 164A of the Industrial Relations Act 1996 - hearing de novo – 11 allegations of misconduct - whether decision harsh, unreasonable or unjust – application dismissed Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Crimes (Domestic and Personal) Violence Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Industrial Relations Act 1996 Law Enforcement (Powers and Responsibilities) Act 2002 Mental Health (Forensic Provisions) Act 1990 Police Act 1990 Law Enforcement (Powers and Responsibilities) Regulation 2005 Local Court Rules 2009 Police Regulation 2008 Cases Cited: Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; 118 FCR 395; 113 IR 461 Carlin v Commissioner of Police [2018] NSWIRComm 1057 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198 Commissioner of Police v Reid-Frost (2010) 192 IR 363 Hosemans v Commissioner of Police (2004) 138 IR 1 Jones v Dunkel (1959) 101 CLR 298 Klazidis v Commissioner of Police [2016] NSWIRComm 1014 Lawrance v Commissioner of Police [2010] NSWIRComm 149 Morris v Commissioner of Police [2016] NSWIRComm 1034 New South Wales v Hathaway [2010] NSWCA 184 Paul Gardiner and Commissioner of Police [2009] NSWIRComm 84 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Police v Donlan, Commissioner of Police v Hanson [1995] NSWCA 468 Police v Eade Smith [2010] NSWIRC 162 Police Service Board v Morris and Martin (1985) 156 CLR 397 Toshack v Commissioner of Police [2009] NSWIRComm 31 Treddinick v Commissioner of Police [2016] NSWIRComm 1026 Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25 Texts Cited: Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) NSW Police Force Code of Conduct and Ethics NSW Police Brief Preparation Guide NSW Police Force COPS User Guide NSW Police Crime Recording Standard Policy NSW Police Conflict of Interest Policy NSW Police Force Handbook NSWPF Domestic and Family Violence Standard Operating Procedures Uniform Evidence Law , 7th edition, Law Book Co, 2006 Category: Principal judgment Parties: Darryl Pace (applicant Commissioner of Police (respondent) Representation: Counsel: Mr P Madden (applicant) Mr M Seck (respondent) Solicitors: Mr K Madden (applicant) Mr B Belling (respondent) File Number(s): 2017/00382007 Publication restriction: Pursuant to s 164A of the Industrial Relations Act 1996, until further Order of the Commission, there shall be no publication or broadcast of the redacted material as described below in paragraph 3 of this Decision; andWhere any of the redacted material referred to in paragraph 3 of this Decision is contained in other evidentiary documents relied upon or filed in the Commission or transcript, there shall be no publication or broadcast of that material. Decision Application for review 1. The applicant in this matter, Mr Darryl Pace ("the applicant") has made an application under s 181E of the Police Act 1990 ("the Police Act") for review of an order made by the Commissioner of Police ("Commissioner" or "respondent") under s 181D of the Police Act ("the Removal Order") on 11 December 2017 removing him from the NSW Police Force (NSWPF) on the grounds that the removal was harsh, unreasonable or unjust. 2. Section 181D of the Police Act enables the Commissioner of Police to remove a Police Officer in circumstances where the Commissioner has lost confidence in their suitability to remain a Police Officer. Non-publication order 1. The applicant's evidentiary case disclosed certain details related to a particular event and subsequent investigation by the NSWPF. The particular event was also canvassed in other evidentiary materials before the Commission. Those details were subsequently made the subject of a non-publication order pursuant to s164A of the Industrial Relations Act 1999 by consent. Details concerning that particular event and Police investigation have been redacted. 2. The effect of the non-publication order is that the redacted information, all evidentiary materials which make reference to the particular incident and/or Police investigation, including affidavit evidence and transcript shall not be published or broadcast in any form. Background 1. The applicant was attested as a probationary constable with NSW Police in 2000. At the time of his removal, the applicant had achieved the rank of Detective Senior Constable. 2. On 29 May 2017, the applicant was served with a Notice under s 181D(3)(a) of the Police Act advising him that the Commissioner was considering making an order for his removal from the NSWPF. The Show Cause Notice raised 11 allegations in relation to his conduct and integrity. On 19 July 2017, the applicant provided his response to the Notice ("the Response"). On 11 December 2017, the s 181D Removal Order was made on the basis that the Commissioner determined all 11 allegations were substantiated. 3. The applicant initially sought reinstatement to his position in the Child Abuse and Serious Sex Crimes Squad. Powers of the Commission on review 1. Section 181D of the Police Act gives the Commissioner of Police power to remove an officer where the Commissioner 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. An officer who is the subject of a removal order may apply for a review of the decision of the Commissioner of Police pursuant to s 181E of the Police Act, which 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… for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 1. Section 181F of the Police Act prescribes how the Commission is to conduct the review: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1). 1. The hearing before the Commission is a hearing de novo and not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 at [134]; Commissioner of Police v Reid-Frost (2010) 192 IR 363 at [11]. The Commission undertakes a fresh and independent review of the decision, based on the material before the Commissioner of Police as well as any new evidence admitted. The Commission can agree with the findings and order made by the Commissioner or, make different findings and orders consistent with the provisions of the Police Act. 2. Relevantly, the applicant carries the onus in these proceedings to establish that his removal was harsh, unjust or unreasonable as provided by s 181F(1)(b) of the Police Act. Commissioner Newall summarised the approach to be adopted on an application for review of a Removal Order in Morris v Commissioner of Police [2016] NSWIRComm 1034 at [11] – [17]: 11. As to the process to be adopted on application for review, s 181F requires this Commission first to 'consider' the Commissioner's reasons for the decision to remove the applicant from the Police Service. The Commissioner's reasons are those set out accompanying the Order the Commissioner has made under 181D. 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: Act, s.181F(2). 12. It follows from the statutory structure that if an applicant cannot advance a case that has a capacity to establish that the order to remove was harsh, unreasonable or unjust, the application for review cannot succeed. In that circumstance an applicant has not carried his onus. I here observe that the meaning of the words 'harsh, unreasonable or unjust', which are disjunctive terms, in review proceedings under the Act must be the same as the meaning to be given to them in proceedings under Part 6 of the Industrial Relations Act 1996. ('the IR Act') As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104]) 13. However, notwithstanding what was said in Hosemans, the test in coming to a view as to whether a given removal was harsh, unreasonable or unjust is not identical to that test in the IR Act. That is because the Commission in proceedings under s.181E must take into account matters, set out in s.181F(3)(b), which the Commission in an application brought under s.84 of the IR Act does not have to consider in addressing that question. Amongst other things, the Commission is to 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' in the IR Act: Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 at [27] per Heydon J. 14. To return to the question of onus, 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 Commissioner. 15. As the Full Bench held in Hosemans: The issues of onus of proof and evidentiary burdens in matters relating to the removal of a Police Officer under s181B of the Police Act was [sic] discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2).(at [131]) To the same effect is Starr v Commissioner of Police [2001] NSWIRComm 226. The purpose of the Commissioner's case is, as the Act expressly provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. 16. In all this it must be borne in mind in every case that, as was held in Starr, '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.' (at [140]) 17. To be specific, in each case the matters advanced by both the applicant and the Commissioner must be examined in their context. There would be, no doubt, some kinds of conduct by a Police Officer which would render a decision to remove him or her from the Force not open to any practical challenge regardless of the context in which they occurred, but those kinds of conduct would be few. In general there must be an assessment of the context in which the conduct which has caused the Commissioner to lose confidence in an officer occurred for a fair review to be carried out, and such an approach is mandated by the relevant provisions of the Act and the IR Act. Proceedings 1. The applicant was represented by Mr Madden of counsel. In addition to the applicant's evidence, the following witnesses also gave character evidence: 1. Robert Killian 2. Jason Carr 3. Linda Howlett 4. Maria Rustja 5. Christopher Goddard 1. Ms Gina McMaster was retained by the applicant to provide expert psychological evidence. She was required for cross-examination. 2. The Commissioner of Police was represented by Mr Seck of counsel. The following witnesses gave evidence for the Commissioner of Police: 1. Senior Constable Lachlan Bransgrove 2. Constable Luke Pagano 3. Senior Constable Alissia Kennedy 1. Dr Stephen Allnutt was retained by the Commissioner to provide a psychiatric medico-legal report. He was not required for cross-examination. 2. The applicant's evidence comprised a statement filed on 6 April 2018 and reply statement filed on 5 June 2018. 3. A copy of the applicant's Response to the s 181D Notice served on him by the Commissioner of Police dated 19 July 2017 and copy of the Commissioner's Statement of Reasons dated 11 December 2017 were attached to the 6 April 2018 statement. In addition, the following references were also attached to this statement: * Detective Superintendent Linda Howlett, Commander, Sex Crimes Squad, State Crime Command; * Detective Chief Inspector Chris Goddard, Sex Crimes Squad, State Crime Command; * Former Detective Superintendent Maria Rustja (now retired), Former Commander, Childhood Abuse Squad, State Crime Command; * Robert Killian (brother-in-law), former Police Officer; and * Jason Carr, long-time friend and former Police Officer. 1. The applicant's Response also set out a list of 17 Awards and Commendations received between 2001 and 2013. 2. In his written evidence, the applicant identified a number of personal issues related to his childhood education, post school work experience, early policing in the Sydney area, appointment to the Ballina Child Abuse Squad and his marital breakdown. I do not propose to expand on those matters in this decision. However I have taken them into consideration. 3. In determining this application, I have given consideration to the extensive evidence relied upon by the parties and the respective submissions. The fact that I do not refer to a part of that evidence or those submissions does not mean I have not considered them. 4. The Commission is required to consider the Commissioner's Reasons for his decision to remove the applicant from the NSWPF as required by s 181(F)(1)(a) of the Police Act. 5. The Statement of Reasons that accompanied the Removal Order set out in considerable detail the 11 allegations first put to the applicant in his Show Cause Notice. Shortly stated, the purpose of the Statement of Reasons is to explain why the Commissioner's decision has been taken. Each of the 11 Allegations relied upon in the s 181D Removal Order and the applicant's Response in respect of each are addressed in sequence below. 6. I have read the Statement of Reasons which is well known to the parties. I do not propose to repeat that material verbatim when considering the Allegations. 7. I have also read the relevant sections of the Police Act, the then Police Regulation and Crimes Act relied upon by the Commissioner together the various Codes and Policies also relied upon in determining the gravity of the applicant's conduct. Allegations relied upon in the s 181D Removal Order 1. Four sets of allegations were relied upon by the Commissioner to remove the applicant from the NSWPF as set out below.. 1. Vickery allegations Allegation 1 On 20 February 2014, the applicant should not have charged Mr Vickery with an offence under s154A(1)(b) of the Crimes Act 1900 given the lack of evidence available to him at that time. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to s 7 of the Police Act and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics. Allegation 2 Between 20 February 2014, when the applicant arrested and charged Mr Vickery, and 31 May 2014, when he commenced a period of leave, the applicant failed to adequately investigate the offence in regards to whether or not, on 20 February 2014, Mr Vickery knew that the conveyance he was being transported in was stolen. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990, Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1, and the NSW Police Force Handbook. Allegation 3 Between 18 April 2014 and 31 May 2014, the applicant took no steps to prepare the criminal brief of evidence against Mr Vickery, despite his obligation to do so and his being on notice of his obligation to do so. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990 and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. There also appear to be grounds on which it could be concluded that your conduct was contrary to the Brief Preparation Guide, and the NSW Police Force Handbook. Allegation 4 There appear to be reasonable grounds on which it could be concluded, and the balance of probabilities, all over regard to the seriousness of the allegation, that between 1 August 2014 and 17 October 2014, you failed to adequately finalise the criminal brief of evidence against Mr Vickery. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990 and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1, and the Brief Preparation Guide and the NSW Police Force Handbook, is set out above in relation to Allegation 3. 2. Failure to investigate Jones fraud matter allegation Allegation 5 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that, in March 2014, you failed to adequately investigate a fraud matter. In particular, it appears that you failed to adhere to Standard Operating Procedures relating to fraud matters and failed to complete a COPS event in a timely fashion. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990 and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. There also appear to be grounds on which it could be concluded that your conduct was contrary to the NSW Police Force Handbook, the NSW Police Force COPS User Guide, and the Crime Recording Standard Policy. 3. Unlawful arrest of Mr Campbell Allegation 6 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 24 April 2014 you unlawfully arrested Mr Campbell. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. There also appear to be grounds on which it could be concluded that your conduct was contrary to section 7 of the Police Act 1990, Point 6 of the NSW Police Force Code of Conduct and Ethics, of the Law Enforcement (Powers and Responsibilities) Act 2005, the NSW Police Force Handbook, and the Code of Practice for CRIME. Allegation 7 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to adequately investigate the report that Mr Campbell was harassing staff at the SPAR supermarket or refusing to leave on request. Allegation 8 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that you failed to comply with legislation and NSW Police Force policies and procedures when managing the custody of Mr Campbell by: * not immediately creating a Custody Record for Mr Campbell; * not contacting a support for Mr Campbell, despite knowing he was a 'vulnerable person' for the purposes of clause 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005; and * not notifying the Aboriginal Legal Service (NSW/ACT) of Mr Campbell's attention. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to Point 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1, and subsections 7(c) and 7(h) of the Police Act 1990 and Point 6 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 6. There also appear to be grounds on which it could be concluded that your conduct was contrary to section 131 of the Law Enforcement (Powers and Responsibilities) Act 2005 and the Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence). Allegation 9 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that you falsified an official COPS record on 28 April 2014 relation to the arrest of Mr Campbell. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, and Points 2,3 and 6 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegations 1 and 6. 4. Conduct towards Ms Everingham Allegation 10 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 26 March 2015 you acted in a threatening, abusive and intimidatory manner towards Leah Everingham, (sic) to fear for her safety when you: * attended the Riverside Gym at around 2:45pm on 26 March 2015 and verbally abused Ms Everingham and prevented her from entering her workplace; * attended the Riverside Gym at around 6:30pm on 26 March 2015 and followed her to her car, banged on her window, leaned into the car window and tried to grab the keys; and * attended Ballina Police Station at around 7:30pm on 26 March 2015 and interfered with their interview with on-duty Police. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, the Police Regulation 2008 (in force at the time), Point1 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegations 9, and Point 6 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 6. Allegation 11 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 26 March 2015, you improperly interfered with, or hindered, an investigation by another Police Officer when you entered Ballina Police Station and interrupted interview between Senior Constable Bransgrove and Ms Everingham. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsections 7(a), (b) and (c) of the Police Act 1990, Clause 9 of the Police Regulation 2008 (in force at the time) as set out above in Allegation 10, Point 1 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegations 9, the NSW Police Force Conflict of Interest Policy, and the Crimes Act 1900. 1. Vickery allegations 1- 4 Commissioner's Reasons for applicant's removal – Summary 1. On 20 February 2014, the applicant was on duty at Ballina Police Station. He was working in plain clothes with Constable McMullen and Constable Pagano in an unmarked Police vehicle. 2. At approximately 8:30 am, the applicant conducted a check on a Volkswagen Passat and subsequently established that the motor vehicle had been involved in a number of earlier pursuits near Byron Bay. Constable McMullen understood the vehicle had been reported stolen. A partially naked female, identified as Ms Moorehead, was found sitting in the front seat of the vehicle with the keys in her right hand. 3. While at the location, Constable McMullen states he received further information that a male driver of the vehicle had left the car and walked to the Pacific Highway where he had allegedly boarded a school bus heading towards Ballina. According to Constable Pagano, the applicant and Constable McMullen left the location to find the male person of interest, without success. 4. According to Constable McMullen, he received information shortly thereafter that a male matching the description of the driver was at a bus stop in Ballina. Constable McMullen and the applicant subsequently attended the bus stop and found Mr Vickery. 5. Constable McMullen states that the applicant spoke to Mr Vickery and noticed he was continually looking and reaching into his bag. The applicant subsequently found an uncapped syringe filled with a white substance in Mr Vickery's bag. The applicant proceeded to arrest Mr Vickery and take him to Ballina Police Station 6. Constable Pagano states that the applicant and Constable McMullen conducted an electronically recorded interview with Mr Vickery at Ballina Police Station during which he stated: I admit I'm guilty as far as the drugs are concerned, the heroin, all right, that's the only drug I'm guilty of. 1. Throughout the interview, Mr Vickery denied any knowledge that the Volkswagen Passat had been stolen and thought the vehicle belonged to Ms Moorehead, who had earlier told him the Police were pursuing her for "Speedin" or "somethin". 2. Following the interview, the applicant and Constable Pagano discussed Mr Vickery's response. Constable Pagano states that while Mr Vickery maintained his innocence, he was sceptical of the version of events provided. 3. The applicant subsequently issued Mr Vickery with a Field CAN for two offences: 1. possession of a prohibited drug under s 10(1) of the Drug Misuse and Trafficking Act 1985; and 2. being carried in a conveyance taken without consent of the owner under s 154A(1)(b) of the Crimes Act 1900. 1. The applicant completed the "charge" systems record concerning the above offences at 1:30 pm on 3 March 2014 and listed himself as the sole Officer in Charge (OIC). 2. Mr Vickery initially pleaded guilty to both charges. However, on 17 April 2014, he changed his plea to "not guilty" and the Local Court made orders on that date for a brief of evidence to be filed and served. The relevant COPS dissemination was sent to the applicant the same day stating he was required to prepare and serve a criminal brief on Mr Vickery's Legal Aid solicitors and the Local Court. The COPS system records the applicant having read this dissemination on 18 April 2014. 3. According to Constable Pagano, a few months after the incident and the laying of charges against Mr Vickery, he was advised the applicant would be absent on leave for a period of time. Police records show the applicant commenced leave on 31 May 2014. 4. Constable Pagano acknowledges that he was made OIC for the charges and was given the file by Sergeant Kirk to enable him to prepare the necessary brief. Constable Pagano states he did not receive any direction from the applicant concerning the investigation undertaken by him prior to commencing his leave. 5. The matter was before the Local Court on 12 June 2014. However, as no brief had been prepared and presented to Mr Vickery's solicitor or the Local Court, the matter was adjourned to 24 June 2014. 6. Constable Pagano states that he received notification of the Local Court dates via email on 13 June 2014. The same day, Constable Pagano states he emailed Constable McMullen and Leading Senior Constable Wiley asking them to provide statements for the matter. That night, Constable Pagano states he contacted the applicant and the following exchange ensued: Pagano: Pacey, you know this Colin Vickery matter is going for hearing? Applicant: They [the defence] told me that they were pleading guilty. 1. Senior Constable Ivey advised Constable Pagano by email on 21 July 2014 that he was being made the OIC for the charges against Mr Vickery. The email noted Senior Constable Ivey's concern that there appeared to be a lack of evidence in relation to Mr Vickery's knowledge that the motor vehicle had been stolen. 2. Constable Pagano also states that he had difficulty obtaining the necessary statements from all the Police Officers concerned with the matter and was only able to present a partial brief of evidence to the Local Court and Mr Vickery's solicitor. The matter was subsequently adjourned to 24 July 2014. 3. Constable Pagano was subsequently instructed to seek statements from those Police Officers who first identified the stolen vehicle. Constable Pagano emailed the relevant officers at Byron Bay "advising of the situation and requesting statements". Constable Pagano subsequently received statements from both Ballina and Byron Bay officers. 4. The matter returned for hearing at the Ballina Local Court on 24 July 2014. The Police prosecutor, Senior Constable Kennedy stated that the Magistrate made three orders in relation to outstanding material missing from the brief of evidence following concerns raised by Mr Vickery's solicitor, Ms Naomi Carter. The brief did not contain statements from the Byron Bay Police Officers involved in the incident on 20 February 2014 or a statement from Constable McMullan. The matter was subsequently adjourned to 21 August 2014 to allow for the brief of evidence to be completed with a hearing date scheduled on 17 October 2014. 5. According to Senior Constable Kennedy, Constable Pagano approached her a few weeks prior to the hearing date and raised his concern that the evidence was insufficient to establish the element of Mr Vickery's knowledge that the vehicle in which he was conveyed on 20 February 2014 was stolen. 6. The applicant returned from leave to work at Lismore Police Station on 1 August 2014. Constable Pagano states he was unaware of the precise date the applicant returned to work. However, when he became aware of the applicant's return, he had the following conversation with Sergeant Woolfe: Pagano: Sarge, now that Pacey is back at work do I still need to look after this brief or can I just send it up to him? Woolfe: Yeah no need to keep it, just send it up in the mail. 1. Constable Pagano states he subsequently sent the case file to the applicant via the internal mail system. 2. On 1 October 2014, the applicant sent an email to Mr Vickery's Legal Aid solicitor and Constable Pagano which the Commissioner of Police contends indicates the applicant was aware from at least that date that he was the OIC once more for the Vickery matter. In that regard, the applicant sent an email to Police Rosters where he made a request to be rostered for Court duties on 17 October 2014, the scheduled Local Court hearing date, together with Constable Pagano. 3. Senior Constable Kennedy received an email from the applicant's solicitor, Ms Carter on 14 October 2014 noting that no witnesses were required for cross-examination and there was agreement to tender the Police brief. 4. Senior Constable Kennedy states she discussed the matter with Ms Carter by telephone later that afternoon. Ms Carter had not received the evidence to show that Mr Vickery had knowledge the vehicle was stolen at the time he was conveyed as a passenger on 20 February 2014. 5. Moreover, Senior Constable Kennedy also states that during the course of her conversation with Ms Carter on 14 October 2014, Ms Carter asked that the prosecution consider withdrawing the charge. A conversation also occurred concerning a costs application against the prosecution should the charges not be withdrawn. 6. Senior Constable Kennedy says she had a conversation with Sergeant Woolfe on 15 October 2014 in relation to her concerns about the applicant shifting responsibility for the prosecution onto Constable Pagano and her confusion as to the identity of the OIC. 7. Senior Constable Kennedy states Sergeant Woolfe had indicated that it was his belief, based on email correspondence from the applicant "organising witnesses" that he had taken over the role of OIC. Sergeant Woolfe also says he told Senior Constable Kennedy he believed the applicant was of the view that Constable Pagano had only been the acting OIC during his absence on leave. 8. On 15 October 2014, Senior Constable Kennedy conferred with Senior Sergeant Huxtable concerning the prosecution of Mr Vickery in which he raised concerns regarding the prosecution's prospects of success and suggested that the matter should be withdrawn. She subsequently sent an email to the applicant at 12:18 pm on the advice of Senior Sergeant Huxtable raising these concerns and requesting clarification. Pending the applicant's response, Senior Constable Kennedy would pursue withdrawing the charge. 9. The applicant responded to Senior Constable Kennedy at 12:37 pm and asked her to contact him on his mobile phone to discuss the matter. The applicant contacted Senior Constable Kennedy at approximately 1:30 pm. During the course of the conversation, Senior Constable Kennedy states she asked the applicant numerous questions regarding the matter and she disputed assertions that he made over the phone that Mr Vickery had admitted to being in the car at the time of the pursuit. Senior Constable Kennedy states the following conversation ensued: Kennedy: In terms of my email, was any attempt made to track down statements from Jeremy Byles or Whitney Kinnear? Applicant: That was a separate incident. That's the earlier matter with Byron Police. Kennedy: Yes but in his ERISP, Vickery gives a version that includes reference to certain actions by those persons so we could have obtained statements from them which may have contradicted his version and discredited him. Applicant: Well that would have been easy enough to do but like I said, I didn't put the brief together. Kennedy: Was an enquiry made with NRMA as to whether there was a roadside call out? Applicant: No, but again, that would have been easily done. Kennedy: Was any effort made to obtain the footage from the BP at Suffolk Park or make enquiries as to whether there was any footage? Applicant: Well, I've been off and Pagano is the OIC. Later in the same conversation, Senior Constable Kennedy says she spoke with the applicant in words to the following effect: Applicant: … I'm not the OIC. Kennedy: I'm confused. So you haven't taken the matter over as the OIC? Applicant: Pagano prepared the brief so he has the matter because I've been off. If he's going to flick pass it back to me that I guess I can give a view that otherwise, I'd be speaking with him. 1. Senior Constable Kennedy emailed Inspector Lindsay and Inspector Ingram at 1:45 pm on 15 October 2014 seeking approval to withdraw the "knowingly carried in stolen conveyance charge". Inspector Lindsay authorised withdrawal of the charge by email at 2:01 pm. Senior Constable Kennedy subsequently emailed the applicant at 2:15 pm to advise approval had been given to withdraw the charge and requested him to notify all witnesses. She subsequently advised Ms Carter and the Local Court. 2. When the matter was listed for hearing at Ballina Local Court on 17 October 2014. Senior Constable Kennedy sought to withdraw the second charge and later that day completed a failed prosecution form. An order was made by the Local Court that a Certificate be issued pursuant to s 2 of the Costs in Criminal Cases Act 1967, entitling Mr Vickery to seek payment for his legal costs from the Consolidated Fund on application to the Director-General of the Attorney-General's Department. 3. In his electronically recorded investigation interview on 12 December 2014, the applicant stated that having now read the transcript of the interview with Mr Vickery and having listened to the recording of that interview, Mr Vickery was caught lying throughout the interview. In making that assessment, the applicant stated that he relied on the witness who saw Mr Vickery exit the motor vehicle as well as the "fact that he [Mr Vickery] admits to being a compulsive liar". 4. The applicant acknowledged Mr Vickery had provided him with information that corroborated his version of events. However, he made no enquiries to verify Mr Vickery's version of events and asserted "that you didn't have to make such enquiries as he made admissions during his interview". The applicant subsequently suggested that these "enquiries" should have formed part of the brief of evidence preparation which he claimed was not his responsibility to prepare. 5. The Commissioner expressed concern that the applicant sought to lay all blame for the failure to prepare the Vickery brief on Constable Pagano, a junior officer. The Commissioner also expressed concern that the applicant was not prepared to take any responsibility for his lack of action. The Commissioner concluded the applicant's conduct demonstrated a lack of insight regarding the insufficient evidence to lay the charge against Mr Vickery. 6. During his interview, the applicant stated that he had no recollection of reading the brief dissemination on 18 April 2014 and further, he had not carried out any brief preparation as he considered the matter was allocated to Constable Pagano. In that regard, the further inquiries made by the applicant following his return from sick leave "were in order to help him complete the brief". 7. Shortly stated, the applicant contended his name was attached to the matter because he had prepared the charge and wanted it to "run smoothly". Whilst he maintained there was sufficient evidence to charge Mr Vickery, he also considered "the rest of it could have been prepared a lot better … the brief preparation". 8. In his response to the Investigator's Report dated 26 July 2016 the applicant confirmed he could not recall reading the COPS system dissemination indicating that a brief was required, despite acknowledging the dissemination had been raised. The applicant also claimed that in or around this time, he was not coping well at work and commenced a period of leave from 29 May 2014 when Constable Pagano was assigned the OIC for preparation of the brief. 9. The applicant also stated that upon his return to work, he followed the matter up with Constable Pagano and "gave him a 'rev up' for not obtaining statements from witnesses". Applicant's case – why removal is harsh, unreasonable or unjust Applicant's evidentiary case 1. The applicant disagreed with the Commissioner's Reasons that he had displayed a lack of insight and had sought to lay blame on Constable Pagano for the failure to prepare the Vickery brief of evidence. 2. The applicant also disagreed with the proposition that by his conduct and Response, he had shown a disturbing lack of insight in relation to his failure to comply with relevant NSW legislation and NSWPF policies. 3. In his second statement filed on 5 June 2018, the applicant disagreed with the proposition that during the three months from February to May 2014, he could have actioned the Vickery matter. In that regard, he referred to a Roster Report that recorded he was absent from work for 62 days between 20 February and 31 May 2014 "either on sick leave, a rest day or rostered leave day". 4. The applicant submitted that at the time of the Vickery allegations, he was "very unwell" and was suffering psychological illness. The applicant contended his psychological illness was not an excuse for his "admitted conduct" but "it goes some way to explain it". 5. The applicant contended that whilst on sick leave, Senior Constable Kennedy contacted him and in the course of a conversation he said words to the effect of, "you need to talk to Pagano. He is the officer in charge". 6. Prior to commencing sick leave on 31 May 2014, the applicant states he had contacted Ms Thomas from Legal Aid by email and phone concerning the Vickery brief of evidence. In that regard, he referred to email correspondence dated 15 May 2014 where he sought from Ms Thomas how Mr Vickery proposed to plead and whether or not a brief was required. A follow-up email was sent to Ms Thomas on 27 May 2014. He contended Ms Thomas was unclear concerning how Mr Vickery proposed to plead the charge under s 154A(1)(b) of the Crimes Act. 7. The applicant conferred with Ms Thomas and Constable Pagano by email on 1 October 2014 following his return to work: Rachel can you confirm who exactly is required for this matter. The hearing is set down for 17/10/2014 at Ballina. I will need to know who is required within the next few days. Regards Cst Pagano, as you were nominated as the OIC in my absences, can you tell me if you have issued subpoenas for all witnesses and provide me information as to what exactly you have done with this matter. Regards 1. The applicant stated he had a short conversation with Senior Constable Pagano concerning the Vickery matter during the course of the training day at Lismore Police Station "… about him obtaining a statement from a witness who saw the car stop involving Mr Vickery". He also recalled Constable Pagano logged on to COPS at that time seeking details concerning the witness. Applicant's response to s 181D Notice why removal is harsh, unreasonable or unjust 1. The applicant set out in some detail the background to Mr Vickery's arrest. 2. The applicant understood from his telephone conversations with Ms Thomas that Mr Vickery would be pleading guilty to both offences and therefore a brief was not required. Later, Ms Thomas advised him that she was waiting for further instructions related to how Mr Vickery proposed to plead. 3. The applicant subsequently made a number of attempts to contact Ms Thomas by email to determine how Mr Vickery proposed to plead and whether witnesses would be required. 4. The applicant proceeded on sick leave at the end of May and responsibility for any required brief preparation fell to Constable Pagano. The applicant acknowledged that following his return to work, he: …read a COPS system dissemination requesting a brief be and served on the defence. Constable Pagano remained the officer in charge at this time. The COPS system shows that I read this dissemination, however I have no recollection of reading the dissemination Constable Pagano remained the officer in charge. 1. The applicant also stated in his Response that he was struggling with his personal life and workload at this particular time which he subsequently reported to the Richmond Local Area Commander. He was placed on work-related sick leave on 29 May 2014. Constable Pagano was assigned the OIC and was responsible for the preparation of the brief. He followed up the matter with Constable Pagano upon his return to work and "gave him a 'rev up' about not obtaining statements from witnesses". He could not recall being told that he was required to prepare the brief and referred to a series of emails to support his contention that Constable Pagano was in charge. He further contended that no one had told him that he was now required to prepare the necessary brief. 2. In relation to the Failed Prosecution Certificate, the applicant stated it was not unusual for Police to charge offenders at the time of the initial investigation with multiple offences and subsequently withdraw some or all later. Matters are withdrawn from Court regularly for many reasons and in turn become a failed prosecution. 3. The applicant contended that senior Police have discretion to initiate a complaints process or speak directly to the officer or officers involved. Advice, direction or further training in relation to a failed prosecution are an alternative to the complaints process. He further maintained that Police at all levels can fall into error and length of service is irrelevant. 4. The applicant submitted he had learned a valuable lesson from this matter and placed on record that he proposed to practice policing within the relevant guidelines and uphold NSWPF policies and procedures at all times Applicant's submissions why removal is harsh, unreasonable or unjust 1. The applicant's submissions concerning Allegations 1 – 4 essentially mirror his Response to the Commissioner. Shortly stated, the applicant admitted his errors and considered the Commission should view his mistakes in the light of his state of mind at the time. 2. The applicant sought to rely upon substantial mitigating circumstances in existence at the time, particularly the fact that he was suffering psychological illness and "struggling" with both his personal and Police work life. In cross-examination, the applicant provided frank and genuine explanations for his erroneous conduct. 3. The applicant was unwell and off work for much of the time the Vickery matter was on foot. Between 20 February and 31 May 2014, the applicant had been frequently absent from the workplace on a combination of sick and other leave. The Commission should give serious consideration to these mitigating circumstances when assessing the applicant's failings as determined by the Commissioner with respect to Allegations 1 – 4. 4. The applicant also urged the Commission to give consideration to the fact that he had not worked in general duties for any considerable period of time and had spent the majority of his most recent policing in the Child Abuse Squad. 5. Whilst he had some investigation experience and possibly had charged an offender under s 154(1)(b) of the Crimes Act during his "Redfern days" in early 2000, he had no recent practical experience concerning s 154A(1)(b) of the Crimes Act and similar "general duties" matters. 6. Shortly stated, the applicant contended that his conduct did not warrant removal from the NSWPF. The applicant submitted he had reflected on his conduct concerning the Vickery investigation and had learned from it. 7. Senior Constable Kennedy had received significant training prior to being appointed a Police Prosecutor and that training was ongoing. She was an experienced Police Officer and from time to time is involved in giving advice to a range of officers concerning particular charges and the requirements for evidence. For his part, the applicant submitted he had not received the level of training that had been afforded to Senior Constable Kennedy. Accordingly, the Vickery allegations and his failings need to be examined in context. 8. Prior to the matter being determined by the Local Court, Senior Constable Kennedy had read the brief and in her experience, considered there was a prima facie case that the second charge could "potentially" get over the line: It is submitted the applicant's failing in relation to the Vickery matter, a matter where a prima facie case could potentially have gotten over the line, according to Senior Constable Kennedy, needs to be looked at in context and when that is done the Commission would find the applicant should not have been removed for these reasons and it would be harsh to do so. Case presented by Commissioner in answer to the applicant's case 1. In relation to Allegation 1, the Commissioner determined there was insufficient evidence to charge Mr Vickery under s 154A(1)(b) of the Crimes Act. 2. The Commissioner further determined the applicant had demonstrated a lack of insight regarding the insufficient evidence relied upon to lay the second charge of being knowingly carried in a stolen conveyance against Mr Vickery. 3. The Commissioner was particularly concerned about the applicant's lack of knowledge concerning powers of arrest. The Commissioner expects all sworn officers to have clear knowledge of their powers and to only arrest someone if they have cause to do so. The Commissioner took issue with the applicant's case that it was not unusual for Police to charge offenders at the time of the initial investigation with multiple offences and later withdraw some or all of them. 4. In cross-examination, the applicant confirmed he was familiar with the Code of Conduct and the Commissioner's Statement of Values which he agreed were at the forefront of a Police Officer's mind when performing Police duties. The applicant further agreed that it was important for a Police Officer to keep up-to-date with the relevant NSWPF policies, procedures and guidelines including standard operating procedures. 5. The Commissioner also found that the applicant had demonstrated an ongoing lack of compliance with various policies and procedures of the NSWPF as well as a failure to comply with his own obligations and responsibilities as a sworn officer. The Commissioner was particularly concerned by the fact that the applicant displayed a lack of regard towards the seriousness of these failures. 6. The Commissioner also determined the applicant did not take any responsibility for his actions and instead, sought to lay total blame for the failure to prepare the brief of evidence on Constable Pagano, a junior officer in rank. While the applicant claims to have "given Pagano a rev up" when he returned from sick leave, Constable Pagano rebutted this particular claim. 7. The applicant acknowledged that Mr Vickery had provided him with information that corroborated his version of events. The applicant admitted that he made no enquiries to verify Mr Vickery's version of events – but rather asserted that he didn't have to make such enquiries as Mr Vickery had made certain admissions during his interview. Moreover, the applicant suggested in the course of his interview that these enquiries should have formed part of the brief preparation which he maintains was not his responsibility. 8. In relation to Allegation 2, the Commissioner determined that between 20 February 2014 when the applicant arrested and charged Mr Vickery and 31 May 2014, when the applicant commenced a period of sick leave, he failed to adequately investigate the offence and determine whether or not on 20 February 2014, Mr Vickery knew that the car he was travelling in had been stolen. 9. The Commissioner also determined the applicant has sought to downplay and diminish the seriousness of the allegations. 10. In relation to Allegation 3, the Commissioner determined that between 18 April 2014 and 31 May 2014, the applicant took no steps to prepare the brief of evidence against Mr Vickery, despite his obligation to do so and being on notice of his obligation to do so. 11. The applicant states that on his return from sick leave, he read a COPS dissemination that requested a brief be prepared for the Vickery matter. However, while the COPS dissemination records that he read the dissemination, he does not recall reading it. Accordingly, as far as the applicant was concerned, Constable Pagano remained the Officer in Charge at all times. 12. The applicant also alleged that in several conversations with Ms Rachel Thomas, a Police Prosecutor, had advised him that a brief of evidence was not required. 13. Insofar as the applicant was concerned, the matter had been allocated to Constable Pagano. The additional enquiries the applicant made following his return from leave were undertaken to assist Constable Pagano complete the brief. In that regard, the applicant also stated he wanted to make sure the matter would "run smoothly" because his name was attached to the matter as he had prepared the charges. The applicant also maintained there was sufficient evidence to charge Mr Vickery and that "the rest of it could have been done a lot better … the brief preparation". 14. In relation to Allegation 4, the Commissioner determined that between 1 August 2014 and 17 October 2014, the applicant failed to adequately finalise the brief of evidence against Mr Vickery. Evidence of Constable Pagano 1. Constable Pagano deposed Sergeant Kirk handed the brief to him when the applicant commenced leave. He subsequently proceeded to obtain statements from various Police Officers including Constable McMullan and officers from the Byron Bay Highway Patrol. 2. It was Constable Pagano's evidence that after reading the statements obtained, he was of the view that the evidence in relation to the charge of "being carried in a conveyance without the consent of the owner" was insufficient to obtain a prosecution as no Police witness "could place Mr Vickery in the car at the time of the pursuit". 3. In cross-examination, Constable Pagano confirmed he was present when the applicant interviewed Mr Vickery on 20 February 2014. He also confirmed he was given responsibility for preparing the brief as the informant for the charge because the applicant commenced leave on 29 May 2014. Court papers dated 13 June 2014 also identified Constable Pagano as the informant. 4. After returning the brief to the applicant following his return from sick leave, Constable Pagano admitted he may have made some enquiries on the COPS system in relation to one of the witnesses. However, he was no longer the OIC for the brief. Constable Pagano also stated that he had spoken to Mr Vickery's solicitor, Ms Carter outside Ballina Court. The following exchange ensued: Q. Would you agree that there's some uncertainty in your mind as to whether or not you were the officer in charge of this matter from the point in time when Mr Pace returned from sick leave in about August of that year? A. No. No. I spoke to Sergeant Woolfe and he said - I asked him if I still needed to look after this now that Mr Pace is back from sick leave, and that conversation went along the lines of, there's no need for me to keep it, send it up in the mail, which I did, and after that point, Mr Pace had then begun communicating with, I believe officers in Byron Bay, and with solicitors. Evidence of Senior Constable Kennedy 1. Senior Constable Kennedy deposed that she received a Directive Memorandum from Chief Inspector Bruce on 20 November 2014 following the failed prosecution of Mr Vickery. Senior Constable Kennedy commenced a response to the Directive Memorandum in the form of a Godfrey Report on 26 November 2014 which she finalised on 3 December 2014. A copy of that Report was annexed to her affidavit. 2. Senior Constable Kennedy referred to a conversation with the applicant concerning the Vickery matter on 15 October 2014. She recalled that at no time did the applicant suggest to her "that it was his view" that the matter may not proceed. The Godfrey Report stated: On 15.10.14 I had a discussion with Sgt Woolfe in relation to my concerns about D/S/C Pace offloading any responsibility for his matter onto Cst Pagano and my confusion as to who the current OIC was. Sgt Woolfe indicated that it was his belief that D/S/C Pace was the OIC and that he had formed that view on the basis of some email correspondence which he had received from D/S/C Pace. He informed me that the emails related to D/S/C Pace organising witnesses which he took to be indicative of the fact that he had resumed his role as OIC. See emails attached … It seemed clear from those emails that D/S/C Pace was of the view that Cst Pagano had been acting as the OIC in his absence. On 15.10.14 at 12:18pm, I sent an email to D/S/C Pace. This was following a brief conversation that I had with S/Sgt Huxtable in relation to the matter, during which I raised concerns that in my view, the prosecution was doomed to fail in the matter should be withdrawn. S/Sgt Huxtable advised me to forward an email to D/S/C Pace detailing my view and the reason for it in an email and seeking a written response to any points requiring clarification etc and then pending the response, commencing the process to seek the withdrawal of the relevant sequence if still applicable. I received a response from D/S/C Pace at 12:37pm that same date requesting that I contact his mobile number to discuss the matter … A short time later (around 1 to 1:30pm 15.10.14) D/S/C Pace contacted me by telephone to the Ballina Prosecutions office. The best of my recollection, the conversation was as follows (words the effect of): I said: I've sent you an email outlining the concerns that I have in relation to the matter and there are a few things that need to clarify, those questions were put in the email. He said: Yeah, well I've been off, that's why Pagano had the matter, so I don't know what's happening with the brief. I said: When did you come back? He said: I haven't been back very long. I said: Yes, but when did you come back? He said: I've (sic) haven't been back very long. I said: Yes, but when did you come back? He said: A few weeks ago. I said: In relation to the queries I had … He said: Well I spoke with Pagano last week got a copy of the brief and had a look at it and told him to go and get a further statement. I said: A further statement from who? He said: From the witness at the side of the road. I said: Is this the one who called 000 when the Passat was found? He said: Yes. I said: What was the purpose of obtaining that statement? He said: To show that old mate was in the car. I said: But he concedes that he was in the car in his ERISP. He said: Yeah, he says he knew the car was stolen. I said: No it doesn't, he says that he didn't know the car was stolen. He said: He puts himself in the car at the time. I said: At which time? He said: At the time of the pursuit, I said: No, he says he doesn't think he was in the car during any pursuit. You put to him that he could have been asleep when the pursuit happened and he says he doesn't know what was going on when he was asleep but doesn't think he was in any pursuit. He said: Well he'd made admissions in the ERISP. I said: I'm looking at his ERISP now. If you think he made admissions and I've missed it, let me know which page thereon but from my reading of it, he says that when she pulled up there was some mention of having been chased by the Police and when he asked what for, she said speeding and he didn't think anything of it because he knew her to be a lead foot. He said something along the lines of thinking that she'd seen sense, returned the Pajero and was on the way home in your own car being the Passat. He said something to the effect of querying Moorehead arriving in a different car and Vickery therefore having a basis to suspect it was a stolen vehicle. I said: He says he didn't know how she arrived from Port Macquarie and just assumes more or less that she has come to her senses, returned the Pajero and is now heading home in her own car. He just assumes that she owns the Passat because when she pulls up, she says she has had enough and is headed home to Port Macquarie so he figures that must be her car that she has gone and gotten and is now heading home so we asks for a lift. I said: In terms of my email, was any attempt made to track down statements from Jeremy Byles or Whitney Kinnear? He said: That was a separate incident. That's the earlier matter with Byron Police. I said: Yes, but in his ERISP, Vickery gives a version that includes reference to certain actions by those persons so we could have obtained statements from them which may have contradicted his version and discredited him. He said: Well, that would have been easy enough to do but like I said, I didn't put the brief together. I said: Was any enquiry made with NRMA as to whether there was a roadside call out? He said: No, but again, that would have been easy done. I said: Was any effort made to obtain the footage from the BP at Suffolk Park will make enquiries about whether there was any footage? He said: No, but that would have been easy to do but like I said, I wasn't responsible for the brief. I said: But these are things that should have been done as part of investigation. He said: Well, I've been off and Pagano is the OIC. I said: Well like I said in my email, I'm of the view that we cannot prove the matter beyond reasonable doubt. He said: Yeah but we've got prima facie. I said: At a push we do, yes, but I am of the view that given all those matters, we should be looking at withdrawing the charge and as the OIC, I need to obtain your view. He said: Well, if I have to give you an answer I can but I'm not the OIC. I said: I'm confused. So haven't taken the matter over again as the OIC? He said: Pagano prepared the brief so he has the matter because I've been off. If he's going to flick pass it back to me I guess I can give a view but otherwise, I'd be speaking with him. I said: So you are saying he's the OIC still? If he is, that's fine; I just need to know who I need to speak with about it for the withdrawal policy side of things. He said: Well I'd be speaking with Pagano. I said: Okay no worries, I'll go give them a call because I've got to get this sorted today. 1. Senior Constable Kennedy did not seek to contact Constable Pagano because she was already aware of his views concerning the preparation of the brief. 2. Senior Constable Kennedy's Godfrey Report further stated that the matter was listed before Ballina Local Court on 17 October 2014 where she as prosecutor sought to withdraw the sequence 2 charge. The applicant's solicitor, Ms Carter, subsequently made application for costs pursuant to the Costs in Criminal Cases Act on the grounds that had the Police known all the relevant material at the time of charging Mr Vickery, they would not have proceeded with the charge. The application was conceded by the prosecution and a cost certificate was made. 3. The Godfrey Report also stated Senior Constable Kennedy had no concerns with the conduct of Constable Pagano during the course of the brief preparation process. She commended him for having "the initiative to read through his brief and identify the insufficiencies". Senior Constable Kennedy also offered the following opinion: In my opinion, the deficiencies contained within the brief were not due to poor brief preparation and were entirely due to failure to properly investigate from beginning. … From my discussion with D/S/C Pace, it became apparent to me that he did not appreciate the relevance of 'the earlier incident' and saw it as 'the Byron matter' which had 'nothing to do with' his matter. He did not seem to be able to appreciate the relevance in terms of the potential to discredit the Defendant's version (or as it turned out, confirm the Defendant's version). He was of the view that each of the enquiries which should have been made would have been 'easy' to do but seemed to be of the understanding that those enquiries should have taken place during the brief preparation stage and were therefore the responsibility of Cst Pagano who had been preparing the brief. He did not seem to appreciate that those enquiries should have been part of the initial investigation process. It concerned me that when I was trying to establish who the OIC was for the purpose of the withdrawal policy, D/S/C Pace was of the view that Cst Pagano remained as the OIC but he would assist me if the matter was 'flick passed' back to him. The correspondence that was forwarded to witnesses involved in the matter and Sgt Woolfe, along with the ongoing contact with the Defendant's solicitor, Naomi Carter, all suggested to me that D/S/C Pace was acting in the capacity of the OIC, but when an issue arose, selectively chose not to be. 1. In cross-examination, Senior Constable Kennedy outlined the training requirements for a Police Prosecutor. 2. Senior Constable Kennedy confirmed she had broad prosecution experience before the Local Court and on occasions she provided legal advice to Police Officers including constables as well as sergeants. Senior Constable Kennedy considered she had "a fairly good rate of being able to predict the outcome of matters …" 3. Senior Constable Kennedy stated she received the brief on or around 24 September 2014. At that time, she was working one day per week and accordingly, took the brief home on 12 October 2014 in order to read the statements prior to the hearing on 17 October 2014. She was concerned in part whether there was sufficient evidence to proceed. Accordingly, Senior Constable Kennedy conferred with the applicant on 15 October 2014 and told him there was a prima facie case "at a push" meaning "it potentially would get over the line, but only just potentially". 4. There was no re-examination. Submissions – Commissioner 1. The applicant has not expressed genuine remorse and contrition for his conduct. Rather, the applicant has sought to downplay his responsibility as a Police Officer and deflect attention by assigning blame to others. The applicant has failed to demonstrate "sufficient insight into what he'd done wrong". 2. In cross-examination concerning the Vickery allegations, the applicant contended there were substantial mitigating factors at play during this time when he was struggling with both his personal and Police life. In any event, the Commission should accept that the gravity of these allegations were sufficient to cause his removal. The applicant further contended in his show cause Response at [72]: I have learnt a valuable lesson. I have reflected, improve my practice and skills through recent study and will grow from this experience. 1. There is no independent medical evidence before the Commission to support the proposition that the applicant was suffering from PTSD or depression during 2014 at the time of the Vickery incident and thereafter. 2. In relation to the allegations generally, the applicant was both defensive and evasive in his answers throughout the investigation and during cross-examination. 3. It is clear from the ERISP between the applicant, Constable Pagano and Mr Vickery on 20 February 2014 that the applicant "knew full well" that one of the elements he had to establish was Mr Vickery's knowledge that the vehicle which he was travelling was in fact stolen. In cross-examination concerning the ERISP interview, the applicant acknowledged he was seeking to elicit from Mr Vickery his knowledge that he was in a stolen vehicle. 4. The applicant was subject to extensive cross-examination concerning the series of questions that he put to Mr Vickery on 24 February 2014 concerning whether he knew the vehicle had been stolen. On every occasion, Mr Vickery denied "in clear and direct terms" that he had any knowledge of the vehicle being stolen: Q. Would you agree at this stage you had quite exhaustively explored with Mr Vickery whether or not he knew that he was in a stolen car or had reasonable cause to believe it was in a stolen car, based on the answers that he gave? A. Yes, I made numerous enquiries. … Q. Yeah, the answers which came back consistently from Mr Vickery was, he didn't know it was a stolen car and he didn't know it was a Police chase and he wasn't aware of any other circumstances which give rise to a belief that was a stolen car. A. What he says, but he also says somewhere in this interview that he is in a habitual liar. 1. In relation to the applicant's contention that Mr Vickery was a "habitual liar, he agreed with the proposition that Mr Vickery did not say that he was lying in relation to whether the vehicle was stolen. 2. The applicant agreed that he had sought to rely on various transcripts to support elements of his Response to the Commissioner. However, he had not referred to the transcript of the interview with Mr Vickery conducted on 24 February 2014 to support his proposition that Mr Vickery was a habitual liar. The applicant considered Mr Vickery was simply not telling the truth: Q. What other reason did you have, or did you put forward for believing that Mr Vickery's denials that he knew that he was in a car that was stolen were untruthful? A. As I said, Mr Seck, I don't believe any part of his, any of his story, and I certainly didn't believe that he fell asleep during the pursuit. Q. Well, what I'm asking you what basis did you have for disbelieving his story? A. It was just a feeling, a gut feeling. 1. In relation to the applicant's "gut feeling" concerning Mr Vickery's denials, the Commissioner submitted "this issue of a feeling" was not contained in the applicant's filed evidence and emerged "for the first time in cross-examination". It was also clear that the applicant had failed to establish that Mr Vickery knew or had a reasonable basis for believing the vehicle had been stolen. 2. Notwithstanding the absence of a solid evidentiary case, the applicant decided to proceed with the charge against Mr Vickery based on his "gut feeling" or at best the fact that he considered he was a habitual liar: Q. Listen to my question again, Mr Pace, and see if you can answer it, because I know you've given the same answer on a number of occasions, but I'm putting it to you that you knew at the time of the interview that one of the elements of the offence under section 154(1)(b) of the Crimes Act which you had to establish was that he acknowledged that the car was stolen. You knew that at the time of the interview, correct? A. Possibly. 1. The applicant did not raise the fact that he considered Mr Vickery a habitual liar with Inspector Bruce who investigated the incident. Moreover, the applicant did not consider there was insufficient evidence to charge Mr Vickery at the time he was interviewed by Inspector Bruce. Rather, he displayed insufficient insight "into what he had done wrong" and was "prepared to maintain an untenable position that he had sufficient evidence to prosecute Mr Vickery". 2. The Commissioner determined the applicant refused to accept that he was responsible for the brief of evidence preparation after he returned from sick leave. Throughout proceedings, the applicant has sought to blame Constable Pagano for the problems concerning the non-preparation of brief of evidence and in cross-examination, he maintained the Constable continued to have carriage of the matter after he had returned from sick leave: Q. And so you understand that Constable Pagano was no longer the OIC" - which is officer in charge - "because that's only whilst you were absence, and now you were back at work you were now the OIC, that was clear to you at the time. A. No it wasn't clear. Q. Now I want to put to you when you read that email it's abundantly clear to you that you are now the OIC because you make clear that Constable Pagano was only nominated OIC whilst you were away. A. Yeah, no, I don't agree with that. … Q. But it's clear that you knew he was only OIC in your absence, and now you were the OIC, that's why you were doing these duties, correct? A. No, absolutely not. 1. The Commissioner of Police determined the applicant made no attempt to describe any steps he took to investigate the alleged offences either at the time of the arrest or during the period following Mr Vickery's arrest. The applicant did not dispute that he failed to undertake appropriate enquiries. However, the applicant did suggest that it was not uncommon for Police to lay multiple charges against an offender and for some of those charges to be later withdrawn. 2. The Commissioner noted that the applicant contends he was initially advised that Mr Vickery would plead guilty to both charges and therefore as a consequence, the brief would not be required. The applicant then seems to suggest that Mr Vickery's solicitor informed him that the guilty plea would be withdrawn with respect to one charge. However, he contends she did not tell him which charge would be withdrawn. 3. The Commissioner also noted the fact that the applicant could not recall reading the COPS dissemination concerning his requirement to prepare a brief of evidence. 4. The Commissioner noted that the applicant commenced sick leave on 29 May 2014 in relation to work related stress and had maintained that at all relevant times, both during his period of leave and when he returned to work, the Constable Pagano was the OIC. In that regard, the Commissioner noted the applicant's response that he had conversations with Constable Pagano when handing over the brief in addition to discussions with Inspector Kennedy at Police Prosecutions Command about the charge. He referred the Inspector back to Constable Pagano. 5. The Commissioner noted the fact that the applicant maintained that he did not confer with anyone after returning from leave about taking the brief back. 6. The applicant confirmed that he understood that Allegations 1-4 related to his conduct with respect to the Vickery matter. He agreed with the proposition that in answering the allegations, he sought to "bundle up" his response to all four allegations under the "one heading". 7. The applicant agreed with the proposition that his principal response to the allegations was that at the time of the Vickery matter, he was struggling with his personal life and the Police work environment, the combination of which affected his judgement. 8. In relation to s 154A(1)(b) of the Crimes Act, the applicant understood the offence being "carried in a conveyance taken without consent of the owner" is the knowledge that the vehicle has been stolen. 9. The applicant was aware at the time he interviewed Mr Vickery on 20 February 2014 that the Volkswagen Passat intercepted at approximately 8:30 am following a Police pursuit at approximately 5:37 am same day had also been reported stolen. 10. The applicant was asked a number of questions in cross-examination concerning his interview with Mr Vickery and whether or not Mr Vickery knew that he was travelling in a stolen vehicle or had reasonable cause to believe the vehicle had been stolen. The cross-examination shows Mr Vickery repeatedly stated he was unaware the vehicle had been stolen: Q. And then you ask him at question 221: Q. You've never seen that car before, have you? A. No, no. I don't think anything of it. Q. Why is that? A. Because I thought it was her car. Q. Right, but you were aware that there was one other car in existence, which is the car that - the red car? A. I was aware that, you know, she'd done the wrong thing by Whitney." He's made it clear again that he didn't think anything of the ownership of the white Volkswagen. Do you accept that? A. Yes. Q. And, again, you're trying to establish that he may have known something was up in terms of whether or not it was stolen and he refutes it. Do you accept that? A. Yes. Q. So you're having another go at this again, another go at the question as to whether or not he knew the car was stolen because, again, you knew that this was an element you had to establish of the offence, do you agree? A. Well, I was - yes, yes. Q. Now go down to question 225. You say: "Q. Okay. So is it reasonable to say or suggest that she turned up - that the car may have been stolen or otherwise unlawfully obtained?" So you're having another go at trying to establish— A. Correct. Q.—the point much more directly by leading him to the answer, and he says: "A. Well, not me, because I didn't have a clue. I just assume it was the car she had driven up from Port Macquarie." And so that was the clear and unambiguous answer that you received in relation to— A. Yes. Q.—that point? Now go to - bear with me, Mr Pace. Now go to paragraph 274, sorry, question 274 at page 31. You then again return to the question of the ownership of the car at 274 and at - you say: "Q. Okay, she says then, "and when you say "she", this is Ms Moorhead, … that you went along for a long walk towards the lighthouse. Then you said to her, 'Just wait here,' and that you returned with the red or black car? A. I returned with a red or black car? Q. Yeah. Did that happen? A. Total fucking liar. Q276. She says that she remembers driving the silver car, the stolen car. She remembers driving from Byron? A. Mmm. Q. With you in the car but she says you got the car for her and told her it was your car? A. No fucking way in the world." So again his story is consistent. He's saying he didn't know that it was her car at all. He didn't know it was stolen? A. That's what he says, yes. Q. Now if you go to question 336 on page 37, you have one more go at it and you say, you ask him: "Q. Then you end up in this stolen car which you don't make any enquiries about. You just get in, say you want to go to Lismore and then momentarily— A. Well, fuck, I thought it was her car. Q. Momentarily— A. I don't know, like, if she put it this way. If she turned up in the bloody red car, I would've got back in. Q. Momentarily fell asleep and you ended up down that little side of the street where you got out? A. Yeah. I'm fucking out of here. I'm going." So again, he reiterates his story that he thought the silver Volkswagen was her car? A. Yes. 1. Mr Vickery was also asked a number of questions concerning whether he was aware the Volkswagen Passat had been involved in a Police pursuit earlier that morning. Again, the evidence shows Mr Vickery denies that he was in the vehicle at the time of the Police pursuit. It also shows it was Mr Vickery's belief that the Police pursuit involved speeding and not the fact that the vehicle had been stolen: Q. … then you have another go at trying to establish that he knew there was a pursuit on page 38 at question 341: "Q. So at no stage do you recall or admit being involved in a Police pursuit, whether it was— A. No, never seen a Police car chase the car. Q. But the version you have provided suggests that you were in the car between those hours. Is that what I'm saying? That's what I'm saying. A. You're saying the pursuit lasted how long? Q. One minute. A. One minute, right, and I, like I said to you, when I got in the car she mentioned something about, 'I think the Police might be after me,' all right." So again, he's denying that he was in the pursuit and now he's actually giving you some additional information and saying that she had in fact been - mentioned being in a pursuit by the Police earlier on. Do you see that? A. Yes. Q. So that's another piece of information indicating to you that he didn't know anything - he wasn't in the car at the time but she just mentioned that the Police had chased her beforehand but didn't give a reason? A. Yes. Q. Do you accept that? And then you say - at question 346 you in fact ask him whether or not she gives an explanation, and he says: "A. And I said, 'What the fuck for?' She said speeding or something, and I said, 'You're a fucking nut,' and I got in and said, 'Can you give me a lift to Lismore?', all right." Do you see that? A. Yes. Q. So even when he asked - even when she told him that the Police might be after her, all Mr Vickery knows at the time is that it was for speeding or something along those lines, correct? There's no reference at all to the car being stolen by Ms Moorhead, according to Mr Vickery. Do you agree? A. Well, she indicates in 343 that the Police might've been after her. Q. But that he says that she's told that it was for speeding or something? A. Well, that's what he— Q. That's all he knows, right? A. That's his response, yes. 1. In response to a question concerning the above cross-examination and in particular, whether the applicant had "quite exhaustively explored" with Mr Vickery whether or not he knew that he was in a stolen vehicle or had reasonable cause to believe he was in a stolen vehicle, the following exchange ensued: Q. Would you agree at this stage you had quite exhaustively explored with Mr Vickery whether or not he knew that he was in a stolen car or had reasonable cause to believe he was in a stolen car— A. I've made— Q.—based on the answers that he gave? A. Yes, I've made numerous inquiries. Q. Yeah, and the answers which came back consistently from Mr Vickery was he didn't know it was a stolen car and he didn't know it was in a Police chase and he wasn't aware of any other circumstances which give rise to any belief that the car was stolen? A. That's what he says, but he also says somewhere in this interview that he is an habitual liar. … 1. In relation to Mr Vickery's admission during the course of his interview with the applicant that he was "an habitual liar", the following exchange in cross-examination ensued: Q. I'm asking you he doesn't actually - listen to my question and answer it. Do you accept he doesn't actually say he's lying in relation to this particular— A. That's correct. Q.—these particular issues? In fact, if you go to page 42, question 382, he actually admits to being guilty as far as drugs are concerned: "the heroin and, all right. All the other shit she said is a total fucking fabrication," and then he goes on to say: "I mean, if you guys used a little bit of logic, I'm fucking sixty. Go and have a look at my record. See if there's any fucking thing to do with the car stealing on it. All right? No. Why on earth would I suddenly start stealing cars at sixty years of age?" and that basically ends the interview. So you are left under no doubt what his position is in relation to the question of whether or not he knew it was a stolen car. Do you accept that? A. No. 1. In summary, the Commissioner determined the applicant was not prepared to take any responsibility in relation to Allegations 1 – 4. The Commissioner accepted the applicant was on leave from 31 May to 1 August 2014. Notwithstanding that absence, the Commissioner also determined the applicant had sought to lay "entire blame" for the failure to prepare the brief on Constable Pagano, rather than taking responsibility for his own actions. 2. The Commissioner also determined the applicant, by his conduct, failed to demonstrate "any insight at all in your Response regarding the insufficient evidence to lay the charge against Mr Vickery in the first place". 3. The Commissioner further determined that he was troubled by the applicant's assertion that criminal charges are often laid, but later withdrawn. This assertion is entirely inappropriate, a waste of Court and NSWPF resources and exposes the NSWPF to costs orders and reputational damage. The Commission also expressed the view that the applicant's lack of insight concerned him particularly given his seniority as a Detective Senior Constable with 17 years of experience with the NSWPF. 2. Failure to investigate Jones fraud matter – Allegation 5 Commissioner's Reasons for applicant's removal – Summary 1. The Commissioner determined that in March 2014, the applicant failed to adequately investigate a fraud matter by failing to adhere to Standard Operating Procedures relating to fraud matters. The Commissioner also determined the applicant had failed to complete a COPS Event in a timely fashion. 2. Shortly before 2:44 pm on 19 March 2014, the applicant received a call from a member of the public, Mr Jason Attfield, reporting a fraud involving the alleged misappropriation of funds from a trust account held by a Ballina real estate agent, Mr Brett Jones. The Commissioner's Reasons stated: At around 2:45 pm, a COPS audit shows that you made general enquiries on the COPS system on the person of interest. Following these COPS searches, you made enquiries and established that Mr Jones would be returning to Ballina from Sydney on 21 March 2014. It appears that you did not complete a COPS Event regarding the report from Mr Attfield or provide Mr Attfield with the "Fraud Assessment Pack", in accordance with Standard Operating Procedures. It appears that you did not report the matter to, or seek the advice of, the detectives on duty at the time. However, Sergeant Woolfe says that you made him aware that you had received a complaint from Mr Attfield regarding a fraud involving Mr Jones. On 20 March 2014, you were again on duty from 6:00 am to 6:00 pm relieving the position of General Duties Supervising Sergeant. At 9:28 am that day, a COPS audit shows you made further enquiries on the COPS system regarding Mr Jones. At 9:35 am you emailed Mr Attfield stating that you were "looking at commencing a fraud investigation into the misappropriation of funds relating to Brett Jones". Information from NSW Fair Trading shows that he (Mr Attfield) contacted them on 20 March 2014 and made enquiries regarding Mr Jones and the possibility that he had committed a fraud. Also on 20 March 2014, you conducted enquiries that revealed a further seven possible victims of fraud perpetrated by Mr Jones, with a possible value totalling $286,500. There is no evidence to suggest that, on 20 March 2014, you completed a COPS event, provided Mr Attfield with a Fraud Assessment Pack, or informed the detectives on duty at the time about the alleged fraud. There is also no evidence that you took, or arranged to take, statements from Mr Attfield or any other victims. Sometime in the afternoon of 20 March 2014, Inspector Bruce says that you contacted her to inform her of the fraud and tell her that Mr Jones was flying into Ballina the next day. She says that you sought permission to be recalled to duty to locate Mr Jones, as you were rostered for a rest day on 21 March 2014. Inspector Bruce provided verbal approval for the recall to duty. Sergeant Woolfe says that he accompanied you to Ballina Airport where you detained Mr Jones and conveyed him back to Ballina Police Station, where you conducted an ERISP with Mr Jones. Mr Jones agreed to surrender his Real Estate Trading Licence prior to leaving the Police Station. You made arrangements to provide NSW Fair Trading with the record of interview. The COPS record show that you created a COPS Event relating to the incident at 3:15 pm on 21 March 2014. In an interview on 18 December 2014, you conceded that you did not properly obtain any statements from any of the victims before you interviewed Mr Jones. In your response to the investigator's report dated 26 July 2016, you said that you did not take statements from alleged victims as it was your understanding that this would be done by Fair Trading. You also said that you "went well and truly beyond the expectations of conducting a good investigation". You said that it is clear from your emails and phone calls that you are trying to keep communication lines open and keep all involved parties informed. In relation to the fraud assessment pack, you said it was not possible for Mr Attfield to attend a Police Station to be provided with a Fraud Assessment Pack as he left Australia on 20 March 2014, and you communicated with him from that point onwards by email. However, later in your response to the investigators report, you indicated that you had now read the Standard Operating Procedures relating to fraud investigations and were now aware of that a Fraud Assessment Pack should have been handed out. You stated that you received a number of good comments relation to this matter. 1. In his Response to the Commissioner's s 181D Notice dated 27 May 2014, the applicant made no attempt to explain in any detail his failure to: * enter the matter into COPS immediately; * follow the Standard Operating Procedures relating to fraud matters; or * obtain statements from any of the alleged victims prior to interviewing the accused. 1. The Commissioner considered the applicant's Response focused largely on justifying his actions. The applicant stated the matter was initially reported to various Sydney Police Stations and he contended Mr Attfield could have received a Fraud Assessment Pack from one of those Stations. 2. The matter was ultimately handed over to Fair Trading to conduct an investigation and speak to the victims. He had also communicated regularly with senior officers from Fair Trading, none of whom raised any concerns about his proposed course of action. All victims were ultimately repaid and in that regard, the applicant contended part of the credit for this must fall to him. Applicant's case – why removal is harsh, unreasonable or unjust Applicant's evidentiary case 1. There is no reference to Allegation 5 in the applicant's statements filed on 6 April and 5 June 2018. However, his s181D Response formed part of his evidentiary case. Applicant's Response to s 181D Notice why removal is harsh, unreasonable or unjust 1. In his response dated 19 July 2017, the applicant stated that in his experience, "No issues have ever been sustained during the initial stage of investigation". The applicant provided background to the matter and believed that Ballina Police Station was the last of a number of Police Stations contacted by Mr Attfield. In that regard, he contended Mr Attfield could have obtained a Fraud Pack from any one of those Sydney Stations. 2. The applicant considered he had been transparent in his actions concerning the matter and had promptly communicated by email and telephone with Fair Trading, Mr Attfield, Mr Jones, Inspector Bruce, Detective Smith, and Sergeant Woolfe. 3. Fair Trading advised the applicant that it would conduct the investigation, contact all victims and arrange the necessary statements. 4. The applicant was not working as a detective at the time and the case was allocated to Detective Fraser, who did not take any statements and subsequently closed the case when it was handed to Fair Trading. Detective Fraser did not issue a Fraud Pack to Mr Attfield. 5. The applicant contended that Mr Jones only wanted to speak to him due to the rapport that he had created with him. He initially spoke with Mr Jones where Sergeant Woolfe was in attendance. The applicant sought consideration of the fact that he had been transparent in all communications "inclusive of emails and telephone calls between myself and Mr Attfield and Mr Jones". He further urged the Commissioner to give consideration to the fact that the investigation may not have progressed as far as it did without his involvement. 6. The applicant did not consider his conduct warranted dismissal on the grounds that all internal enquiries had resulted in a "not sustained" finding and the matter was closed. It was not until sometime later when he was contacted by Sergeant Childs that he became aware of the internal complaint: … I was informed that Richmond Local Area Command was reopening the complaint (and) was closely look into the matter to "find something resulting in a sustained finding". Applicant's submissions – why removal is harsh, unreasonable or unjust 1. The applicant submitted he was nominated for an Excellence Award for an "Outstanding investigation" for his work in this matter by Sergeant Woolfe and monies were ultimately returned to the fraud victims. He also received "good comments" concerning the Jones Fraud matter from the Richmond Local Area Command and was recognised for good Police work by Fair Trading and Mr Attfield. 2. Given this recognition and the fact that monies were returned to the fraud victims, the applicant submitted his removal was, in all the circumstances, harsh and should be considered in the context that he was commended for his duties on the one hand and dismissed "for a failure of those duties in the same matter". 3. In cross-examination, the applicant accepted his two-day delay in logging the relevant COPS Event breached the "COPS policy". He also accepted he had failed to conform to the relevant standard operating procedures. Notwithstanding those admissions, the applicant contended that when he received the report from Mr Attfield, he considered there was insufficient information to justify him logging the COPS Event. He submitted the Commission should accept "this … was his honest belief at the time. Case presented by Commissioner in answer to the applicant's case 1. The applicant commenced service with the NSWPF in 2000 and was an experienced Senior Constable who infrequently relieved as a Sergeant. 2. The Commissioner considered the applicant's failures concerning the investigation of the Jones fraud matter were inexplicable particularly given his experience as a Police Officer. The applicant did not attempt to explain those failures in any detail. Rather, the applicant simply sought to justify his action. 3. The Commissioner removed the applicant for his failure to adequately investigate this matter including a failure to adhere to Standard Operating Procedures concerning fraud matters and the failure to log and complete a COPS Event in a timely manner. 4. The applicant's conduct highlighted his lack of understanding or acknowledgement of the importance to follow basic procedures. In that regard, the Commissioner determined the applicant did not have an excuse for his failure to: * adhere to Standard Operating Procedures; * not enter the matter into COPS immediately; and * obtain statements from the victims prior to interviewing the accused. 1. The Commissioner submitted that given the fact the applicant had made admissions concerning his failure to adhere to Standard Operating Procedures and enter the COPS Event promptly, the applicant in cross-examination sought to deny that he had acted inappropriately in failing to properly investigate the Jones matter: Q. Now, given the nature of the allegation you failed to investigate it and failed to adhere to the standard operating procedures and enter the COPS entry in a timely way, do you adhere to your submission in paragraph 86 of the response that you handled the case appropriately, or do you acknowledge that you did it inappropriately? A. No, I acknowledge that the investigation in relation to this fraud matter was done appropriately. What I don't acknowledge was the time frame in which I put the event on, but the actual investigation for the fraud investigation, I have, I acknowledge it was done. 1. Shortly stated, the Commissioner submitted that if the applicant failed to comply with Standard Operating Procedures, it must follow that he did not act appropriately in investigating the fraud matter. In that regard, the Commissioner determined the applicant continued to demonstrate a lack of insight into the seriousness of his misconduct in failing to comply with Standard Operating Procedures "in circumstances where he had already acknowledged and admitted the allegation". Unlawful arrest of Mr Campbell – Allegations 6 to 9 Commissioner's Reasons for applicant's removal – Summary 1. The Commissioner expressed a concern about the applicant's lack of knowledge with respect to powers of arrest so as to ensure Police Officers "only arrest someone if they have cause to do so". The Commissioner relied upon the following allegations to remove the applicant: Allegation 6 On 24 April 2014, the applicant unlawfully arrested Mr Campbell; Allegation 7 The applicant failed to adequately investigate the report that Mr Campbell was harassing the staff of the SPAR supermarket or refusing to leave following a request to do so; Allegation 8 The applicant failed to comply with legislation and NSW Police Force policies and procedures when managing the custody of Mr Campbell by: 1. not immediately creating a Custody Record for Mr Campbell; 2. not contacting a support person for Mr Campbell, despite knowing he was a 'vulnerable person' for the purposes of cl 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005; and 3. not notifying the Aboriginal Legal Service (NSW/ACT) of Mr Campbell's detention; Allegation 9 The applicant falsified an official COPS Event record on 29 April 2014 in relation to the arrest of Mr Campbell 1. On 24 April 2014, the applicant was the rostered Shift Supervisor and Custody Manager at Ballina Police Station. At or around 4 to 5:00 pm, Mr Glenn Campbell, a 24-year-old Aboriginal male, entered the Westower Tavern at West Ballina where he says he consumed at least six schooners of beer and was unsure how much he drank after that. Those facts were confirmed by Mr Campbell in an interview with Detective Inspector McKenna on 9 October 2014. 2. At or around 6:30 pm on 24 April 2014, Mr Campbell left the Tavern and walked to the adjacent SPAR supermarket where a 17-year-old female employee observed him place a packet of lollies in the pocket of his pants. The employee approached him and when she informed him that she intended to call her supervisor, Mr Campbell placed the lollies back on the shelf. 3. The employee states that shortly after placing the lollies on the shelf, Mr Campbell repeatedly said to her: Do you want me to wait for you outside? 1. The employee's immediate response was to inform Mr Campbell she felt intimidated by his presence. There is no evidence that Mr Campbell was aggressive, rude or otherwise offensive when talking to the employee. Mr Campbell later purchased an item and left the store. 2. Mr Campbell was subsequently observed by staff re-entering the store on a number of occasions and leaving without incident. Another employee states the 17-year-old female employee looked distressed and she asked Mr Campbell to leave the store if he was not going to make a purchase. That employee returned a few minutes later and noticed the 17-year-old employee more distressed as Mr Campbell remained in the store. 3. Shortly thereafter, Mr Campbell was observed by SPAR employees leaving the supermarket and sitting alone on an outside bench. The employees agree that Mr Campbell was quiet and not causing any disturbance at that time. The employees later became concerned about Mr Campbell's presence and a decision was made by the Duty Manager to call the Police. 4. At or around 7:00 pm on 24 April 2014, the applicant received a call from the Duty Manager who informed him that there was an Aboriginal male outside the store who had been harassing a younger employee. A request was made for Police to attend and "move the person along". The Police CAD system has no record of the telephone call. 5. The applicant was interviewed on 11 November 2014 when he stated he did not record the details of the telephone conversation, including the complainant's details, either on the CAD system or in his notebook, as he considered an immediate response was required. 6. The applicant subsequently drove a Police vehicle to the SPAR supermarket without allocating the job to the car crew on duty at the time as he believed the car crew was unavailable due to workload. Both officers rostered to work on the car crew that night later stated they would have been available. Both officers maintain they were unaware of the SPAR supermarket incident. 7. Shortly after arriving at the SPAR supermarket, the applicant spoke to a SPAR employee who confirmed Mr Campbell was the male identified in the phone call to Police. The applicant assessed Mr Campbell's behaviour and demeanour and determined he was heavily intoxicated with alcohol and/or drugs. 8. The applicant's notebook contained a record of Mr Campbell's name, date of birth and address as provided by him. However, Mr Campbell was unable to provide identification to prove the accuracy of those records. The applicant observed Mr Campbell's backpack contained "a large amount of loose coins, similar to (those) from a cash register". Mr Campbell was subsequently arrested, handcuffed by the applicant and conveyed to Ballina Police Station to confirm his identity. 9. The applicant failed to notify the Aboriginal Legal Service concerning Mr Campbell's detention at Ballina Police Station. Moreover, the applicant was aware Mr Campbell was a "vulnerable person" for the purposes of cl 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (LEPRA) yet he failed to contact a support person for him. 10. CCTV footage shows the applicant and Mr Campbell entering the Police Station and walking into the Charge Room at 7:27 pm. The CCTV footage shows Mr Campbell is handcuffed behind his back when entering. The handcuffs were removed as he was placed in the Charge Room dock. The CCTV footage subsequently shows the applicant logging onto a Police computer, making telephone calls, searching Mr Campbell's bag and inspecting his mobile telephone. 11. Subsequent CCTV footage shows Mr Campbell remonstrating with Officers about his temporary incarceration. This is confirmed by Senior Constable Campbell who states Mr Campbell was "compliant, courteous but he was frustrated near the end when he wanted to know why he was in custody". 12. Later, the CCTV footage shows Senior Constable Campbell entering the Charge Room with a Field Identification Kit (fingerprint) and is shown talking to the applicant while unsuccessfully attempting to operate the Field Identification Kit. 13. Senior Constable Campbell states she phoned the Police Help Desk and was told she could not use the portable fingerprint machine to fingerprint a person for identification purposes only as the machine required a charge reference or CNI reference number. 14. The Senior Constable states she informed the applicant of this requirement together with the advice that the Help Desk had informed her that if Mr Campbell was not in custody, he would need to sign a notebook saying he was at the Police Station voluntarily. The Senior Constable also states that notwithstanding this advice, the applicant continued to fingerprint Mr Campbell. 15. At 7:47 pm, the CCTV footage shows Mr Campbell being removed from the dock and escorted by the applicant to the Livescan Room, where his fingerprints were taken before being returned to the Charge Room at 7:55 pm. 16. Relevantly, the Custody Screen Dump and searches of the COPS system show that when in custody on the night of 24 April 2014, Mr Campbell was not entered into the Custody Management System. Further, a COPS audit shows that the first COPS checks were not undertaken until 8:40 pm, five minutes before Mr Campbell's release. 17. The applicant completed a COPS Event in relation to this matter on 29 April 2014, five days after the Campbell's arrest. The COPS Event stated: POI was hanging around the shopping centre at West Ballina harassing staff from the shop called SPAR. The staff became concerned he was hanging around to commit offences. POI searched and moved on. No issues arising. 1. The COPS Event logged by the applicant does not disclose the search, arrest, handcuffing, conveyance or detention of Mr Campbell at Ballina Police Station. In addition, it appears that the applicant left the supermarket on 24 April 2014 without speaking to any employees or obtaining any statements. In that regard, there is no evidence to suggest that the applicant later returned to the supermarket or made any arrangements to obtain statements from any witnesses. 2. The applicant claimed the COPS Event was deficient because it was created days later and he simply forgot the details. He had not sought to cover anything up. 3. When interviewed on 11 November 2014, the applicant stated that Mr Campbell had identification and he was trying to confirm "who he was". He was subsequently conveyed to Ballina Police Station. 4. The applicant stated he handcuffed Mr Campbell behind his back for his own protection and subsequently placed him in the dock at the Police Station. The applicant stated that he arrested Mr Campbell to confirm his identity and establish if the details he provided were accurate. 5. The Commissioner determined the applicant's failure to immediately create a Custody Record for Mr Campbell at Ballina Police Station was a serious breach of NSWPF policies and procedures. 6. During the interview, the applicant confirmed that he did not comply with LEPRA – that arrest should be a last resort. The applicant also agreed with the proposition that Mr Campbell was not committing any offence when he arrived at the supermarket and had not committed any offence prior to his arrival. Moreover, during the interview, the applicant stated he was now aware that he could not arrest a person for the purpose of establishing identification. 7. In a further interview on 19 November 2014, the applicant stated that the inadequacies in the COPS Event were an oversight on his part and "the reason for the inadequacies may have been that (he) did not enter the COPS Event on the system until five days after the incident". The applicant maintained he was not attempting to hide or cover anything up through the inadequacies in logging the COPS Event. No explanation was made for his failure to make an accurate COPS Entry. 8. A Police Officer must have a reason for arresting a person otherwise the arrest will contravene s 99 of Law Enforcement (Powers and Responsibilities) Act 2002. In addition to being clear in his or her own mind for the reason for the arrest, a Police Officer must always record that reason in his or her notebook, in any statement prepared for Court proceedings and the relevant COPS Event Entry. The applicant breached those requirements concerning the arrest of Mr Campbell. 9. In his response to the investigator's report dated 26 July 2016, the applicant stated there was never a suggestion that Mr Campbell committed any offence apart from being intoxicated in a public place. Accordingly, no statements need to be taken from anyone. Moreover, as the applicant was not satisfied with the details Mr Campbell gave him concerning his identity, he subsequently decided to convey him to the Police Station: … as a result of my concerns for his own safety and that of the staff at SPAR in conjunction with not being satisfied with his personal identification, I made the decision to convey Mr Campbell back to Ballina Police Station for further follow-up. The applicant also stated that once Mr Campbell's identity was confirmed he was immediately released from custody without incident. Applicant's case – why removal is harsh, unreasonable or unjust Applicant's evidentiary case 1. The applicant sought to rely on his s181D Response in relation to the allegations concerning the unlawful arrest of Mr Campbell. I do not propose to repeat that Response here in any detail. 2. In relation to Allegation 9 concerning the COPS Event, the applicant drew the Commissioner's attention to the two interviews he had with Detective Inspector McKenna on 11 and 19 November 2014 and the following exchanges recorded in the transcript of the 19 November interview in relation to his delay in completing the COPS Event: MCKENNA: Okay. Can you explain to me Darryl then, in this narrative that you got "POI searched and moved on. No issues arising, "but in fact on this day, the POI was arrested and conveyed to Ballina Police Station, Can you explain why those details aren't included in that COPS event? PACE: No, I don't … I can't explain it. It's an oversight on my behalf and it's a mistake and it should have been updated and should have been typed out correctly. … MCKENNA: Which is five days after. PACE: Which may be the reasons why I, it may be the reason why it was an oversight you know. I went through my notebook and had a look at stuff that was written in there. Ones that needed Events or needed to, for me to create Events to. I've seen that one in there amongst many others and probably didn't even think twice about it. As I said it's an inaccurate record. It's a mistake on my behalf and I accept the responsibility. 1. The applicant disagreed with the Commissioner's determination that there was no evidence before him to suggest that Mr Campbell presented any danger to the safety of the SPAR supermarket employees. In that regard, the applicant sought to rely upon the records of interview between Detective Inspector McKenna and three SPAR employees dated 24 September 2014. 2. The applicant consistently denied that he had created a false COPS Event Entry. Applicant's response to s 181D Notice why removal is harsh, unreasonable or unjust 1. The applicant provided a single response to Allegations 6 - 9. 2. Mr Campbell was under the influence of intoxicating liquor and/or illicit drugs on the evening of 24 April 2014. It was the applicant's evidence that he had not had any time suggested that Mr Campbell committed any offence other than being intoxicated in a public place. Accordingly no statements were required from any party. The applicant was not satisfied Mr Campbell "was who he said he was". Accordingly, for reasons related to Mr Campbell's safety and that of the supermarket staff, the applicant decided to take Mr Campbell to Ballina Police Station. 3. Upon his return to the Police Station, the applicant contended that he spoke to Mr Campbell in relation to contacting a family member. He attempted to contact the nominated family member by telephone without success. Mr Campbell was later fingerprinted to confirm his identity and released from custody immediately without incident. 4. The applicant stated he created the relevant COPS Event some 48 hours late and on reflection, he understood the importance of creating COPS Events in a timely manner and would do so in the future. 5. The applicant was later transferred to Lismore Police Station for reasons unrelated to this incident. The applicant contended he was transferred because he had disagreed with Detective Sergeant Smith and had made verbal complaints against the Detective Sergeant with respect to him "threatening and intimidating me on several occasions". 6. Prior to commencing his first shift at Lismore, the applicant conferred with Superintendent Martin where the Campbell matter was discussed at length: Superintendent Martin said to me, "In future we need to be careful about our reasons for arresting people because citizens can sue the Police for unlawful arrest". I understood what is said and he then said, "We let that one go through to the keeper", gestured to his mouth to blow a referee's whistle and end the conversation. 1. Following a complaint concerning the Campbell matter, the applicant "willingly and openly" participated in his formal interview with Inspector McKenna with the understanding that he had previously spoken to Superintendent Martin who had advised, "everything would be okay". He recalled becoming visibly upset when Inspector McKenna said to him: Darryl, there will be a sustained finding against you but nothing will happen, it will be a slap on the wrist and we will be using this as a training exercise. 1. The applicant sought the Commissioner's consideration of the following matters: * the fact that Mr Campbell did not make a formal complaint at anytime; * Mr Campbell appeared to be under the influence of intoxicating liquor and/or illicit drugs at the time of his arrest; * he had never suggested that Mr Campbell committed any offence apart from being intoxicated in the public place; * no statements were required from any party at any time; * after speaking with Mr Campbell, the applicant was not satisfied that he was who he claimed he was and for that reason and for the safety of Mr Campbell and the supermarket staff, he was conveyed to Ballina Police Station. A COPS Event was ultimately entered; and * during his 17 year career with the NSWPF, he had never been offered professional development for any incident that had occurred. 1. At the conclusion of his formal interview, the applicant stated both Superintendent Martin and Inspector McKenna "personally said to me that a learning exercise had occurred and that would be all that was required". The applicant considered a "learning exercise" is what members of the NSWPF are entitled to receive and what is needed". Applicant's submissions – why removal is harsh, unreasonable or unjust 1. Allegations 6 – 8 were admitted by the applicant who also accepted those failings in cross-examination. The applicant submitted he also made appropriate concessions in relation to his recollection of these events. 2. In relation to Allegation 9, the Commissioner alleges the applicant entered data on the COPS system which he knew to be false in an attempt to cover up his unlawful arrest of Mr Campbell and avoid it coming to light. This is a grave allegation of Police misconduct and in that regard, the applicant submitted the Commission would not find to the requisite standard that he deliberately made a false COPS Entry nor to the requisite standard that he made the relevant COPS Entry with ill intent. 3. There is clearly insufficient evidence for the Commission to be satisfied that the applicant's COPS Entry "was deliberately false and made with the intent to cover up his arrest of Mr Campbell". The applicant did not deliberately seek to conceal his arrest of Mr Campbell. The applicant's COPS Entry was "certainly incorrect" and the "Commission might find it was poor, substandard and inefficient". However, it was not false in the sense of being made with the intent to deceive and cover up the arrest of Mr Campbell. 4. The Commission should take into consideration the evidence of the applicant's character witnesses and find he did not create a false COPS Entry "to cover his tracks". Rather, he was struggling with his personal life and the Commission should take those circumstances into account and accept the applicant's evidence. 5. The applicant sought to rely upon the Court of Appeal decision in New South Wales v Hathaway [2010] NSWCA 184 concerning the standard of proof required where grave allegations of serious misconduct against a Police Officer are made: [262] This Court has often applied the passages in Briginshaw and Neat Holdings which we have reproduced. Relevantly to the present case, in Palmer v Dolman [2005] NSWCA 361, Ipp JA (Tobias and Basten JJA agreeing) stated at [47] that the more recent authorities and s 140 of the Evidence Act: "make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd , has the allegation been proved on a balance of probabilities". [263] We are satisfied that the Briginshaw principle as articulated by the cases referred to above has application to the present case. This is because the primary judge's conclusion at [198] of her reasons that Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and, therefore, maliciously, was founded on her finding at [171]-[172] that she was satisfied that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more Police Officers after the respondent had been removed from the Gaffney house. In the language of Briginshaw, the seriousness of that finding and the gravity of the consequences flowing from it are such that it requires "clear or cogent or strict proof" in order to be made out on the balance of probabilities. [264] The seriousness of the primary judge's findings with respect to the planting of the knife and the gravity of the consequences flowing from it are also demonstrated by the fact that the preferring and prosecution of charges on the basis of evidence known by the informant to have been planted was, at the date on which Briggs brought the relevant charges, contrary to s 317 of the Crimes Act 1900 (NSW) which relevantly provided: "A person who, with intent to mislead any judicial tribunal in any judicial proceeding: a) … b) fabricates false evidence …, or c) knowingly makes use of fabricated false evidence, is liable to imprisonment for 10 years" [265] Furthermore, the planting of the knife and the bringing of charges based thereon would be in breach of s 319 of the Crimes Act which provided: "A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years". [266] The allegations against Briggs that are the subject of the primary judge's findings at [171]-[172] are of such seriousness and carry such grave consequences that they are comparable to an allegation of fraud that the High Court held in Neat Holdings gave rise to the application of the Briginshaw principle. The effect of her Honour's findings is that Briggs was, at least on the balance of probabilities, guilty of serious criminal conduct. Such a finding has the following significant consequences of which it would be reasonable to assume that Briggs would have been aware. … [271] Accordingly, each of those officers would have been aware of the potential risks and consequences that fabricating or being aware of the fabrication of false evidence against the respondent by the planting of the knife might have upon their careers and, for that matter, their liberty or freedom. [272] For the foregoing reasons we are satisfied that the Briginshaw principle has application to the present case and that clear or cogent or strict proof was necessary to support the finding that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more Police Officers after the respondent had been removed from the Gaffney house. It also follows that that finding cannot survive on the basis of "inexact proofs, indefinite testimony or indirect inferences". 1. Consistent with the decision in Hathaway, the Commission should consider the following factors: 1. the seriousness of such a finding; 2. the gravity of the consequences flowing from it; 3. that proof requires "clear or cogent or strict proof"; and 4. such a finding of serious misconduct "cannot survive on the basis of inexact proofs, indefinite testimony or indirect inferences" and find that the applicant did not engage in the conduct as alleged. 1. The applicant submitted he accepts, and has always accepted that he made an incorrect COPS Entry absent any intent to knowingly create a false entry. However, there is insufficient evidence for the Commission to be satisfied that his COPS Entry was deliberately false and made with the intent to cover up his arrest of Mr Campbell. 2. The Commission should accept the applicant's account of events in relation to this allegation. While his COPS Entry was not competent, he did not make a fraudulent and dishonest entry. Nor had he engaged in the serious misconduct levelled against him. 3. The applicant was subjected to rigorous cross-examination concerning this particular allegation and he made appropriate concessions including that his Notebook entry was an oversight and his recollection was imperfect. However, he was not a corrupt officer "nor had he engaged in the serious misconduct being levelled against him …". 4. The applicant maintained he did not deliberately seek to conceal his arrest to Mr Campbell. Nor had he sought to make a fraudulent and dishonest record on the NSWPF COPS system to cover up an unlawful arrest: Q. Now to say that it was an oversight or an honest mistake, in fact is speculation by you because you don't remember what was going through your mind at the time when you put in the entry? A. No, no it is a deadest clear oversight because the event wasn't updated correctly. It's not speculation, it's a clear oversight, I should've updated the event correctly. Q. Well just because the event wasn't recorded correctly doesn't necessarily mean that it was an oversight, there could be a whole range of explanations for why it wasn't put in correctly. Do you accept that Mr Pace? A. I accept that. Q. And one of the reasons could be that you were trying to conceal something that's put to you by Inspector McKenna? A. I absolutely do not accept that at all. Q. Well if you can't remember back to what you were doing and why you were doing things at the time, you can't rule out that you were trying to put a different spin of events or different version of events to that which occurred— A. I can rule it out Mr Seck absolutely, because that is absolutely not something that would've crossed my mind. I am not a corrupt Police Officer, I never have been, I've never updated events or narratives inaccurately. I was seriously struggling at these times with these allegations. I make absolute admissions to not doing things correctly. I didn't try and conceal or cover anything whatsoever. Q. Well no one is suggesting you are a corrupt Police Officer Mr Pace, so let me make it clear. But in not doing it accurately you would agree that you were incompetent in doing so? A. I absolutely concede that my report on that day wasn't competent, yes. Q. At a minimum right, at a minimum you were incompetent? A. Well on that particular day yes. 1. The applicant admitted during cross-examination that he was "struggling" at the time of the incident. When interviewed by Inspector McKenna on 11 November 2014, the applicant submits he was under much stress and strain at that time. He was also due to see his doctor that afternoon. Moreover, a pressing personal matter impacting upon the applicant at that time – the separation from his wife - was a matter known by the investigating officer. The following exchange took place during the interview with Inspector McKenna: Q295 O.K. All right. Just one second. Now, prior to this interview today, prior to going down and viewing the Ballina CCTV footage, you and I had a conversation in the supervisor's room Darryl, and please, if you don't want me to mention any of this, just let me know. But around the 24th of April this year, is it correct to say that your personal circumstances had changed and you were going through a separation with your wife? A (NO AUDIBLE REPLY) Q296 You don't wat to mention it, mate, a bit upset? A (NO AUDIBLE REPLY) Q297 All right, Well prior to --- A Yeah that right Q298 Yeah, no prior to this date. So it would be fair to say that it was, you had some other things on your mind around this time, around the 24th of April? A Yeah. Case presented by Commissioner in answer to the applicant's case 1. The applicant was Custody Manager on the night of 24 April 2014. The Commissioner submitted that by unlawfully arresting Mr Campbell, the applicant had engaged in quite serious misconduct and violated Mr Campbell's basic rights and freedom. The applicant had also failed to undertake basic policing. 2. The applicant has admitted to unlawfully arresting Mr Campbell in circumstances where there was no valid basis to arrest Mr Campbell who was merely intoxicated. The applicant had no legal authority to take Mr Campbell into custody and attempt to fingerprint him. 3. In addition to unlawfully arresting Mr Campbell (Allegation 6), the applicant also failed to adequately investigate the report that Mr Campbell was harassing staff at the supermarket or refusing to leave following a request of staff (Allegation 7). The Commissioner also found (Allegation 9) that the applicant falsified an official COPS Entry on 29 April 2014 in relation to the arrest of Mr Campbell. Such conduct shows a lack of insight and integrity. 4. The applicant also failed to comply with relevant policies and procedures and legislation designed to manage the custody of indigenous persons such as Mr Campbell (Allegation 8). 5. Counsel for the applicant opened his case on the basis that he anticipated "there will be very little factual controversy" and the "position is that the applicant does not deny he engaged in the misconduct" and his "application is one really centred on the contention that his removal was harsh" and a "too severe a penalty". 6. Shortly stated, the applicant's case was that he did not deny the substance of the allegations made against him but sought to rely upon the number of mitigating circumstances to ameliorate their seriousness such as his mental health and personal circumstances, a position which is consistent with his show cause Response and his written evidence filed in these proceedings. 7. Notwithstanding that position, the applicant's submissions filed on 7 November 2018 seek to depart from that case initially articulated in his submissions and evidence in relation to Allegations 9 and 10. In essence, those submissions represent a bald denial of the allegations. In that regard, the Commission should not permit the applicant to depart from his case as presented in relation to Allegations 9 and 10. In the alternative, should the Commission allow the applicant to change his case in relation to Allegations 9 and 10, the Commissioner contends the applicant has not adduced sufficient evidence to discharge his onus pursuant to s 181F(2). 8. It is clear from the applicant's Response that he did not dispute the substance of Allegation 9. He had an opportunity to deny the allegations but did not do so. In his Response submissions, the applicant acknowledges "he was delayed in the immediate task of creating a COPS Event". The applicant for the first time now denies that his COPS Event was false. Notwithstanding that denial, there is nothing in his written evidentiary case that indicates he disputed the substance of Allegation 9 in his Response to the Commissioner. 9. The applicant acknowledged his COPS Event Entry, "POI searched and moved on. No issue arising", made on 20 April 2014 at 11:59 am was incorrect. In that regard, the Commissioner submitted: Now, one would expect ordinarily, five days after an event occurs, one would have a clear recollection of whether or not someone has been arrested unlawfully, has been taken into custody, has been conveyed back to the Police station, and there's an attempt to fingerprint Mr Campbell to ascertain his identity. One would have expected those critical events to be recollected, given that they only took place five days after the incident. 1. In his interviews with Detective Inspector McKenna on 11 and 19 November 2014 concerning Allegation 9, the applicant states that he did not include in his COPS Event that Mr Campbell was arrested and conveyed to Ballina Police Station due to an "oversight" on his behalf. Relevantly, the applicant conceded during the course of his 19 November 2014 interview with the Detective Inspector that his COPS Event was "… an inaccurate record. It's a mistake on my behalf and I accept the responsibility". In cross-examination, the applicant expressed a view that he had no independent recollection of what actually occurred. 2. On the evidence against him, the applicant's characterisation of an "oversight" is completely implausible. There is no evidence to support the conclusion that the applicant's conduct was an oversight or honest mistake. The applicant has sought to conceal a serious breach of policy and breach of the law. There was a motive for his conduct. 3. The Commissioner contended the applicant's approach to Allegation 9 was that the respondent has the burden of proving this particular allegation, which requires "clear or cogent or strict proof" for the Commission to be satisfied that the applicant engaged in the alleged conduct. This view was misconceived. 4. It is clear that the applicant's evidentiary case does not rebut the evidence which suggests that he falsified the COPS Event Entry and his subsequent attempts to justify his misconduct were all untruthful and deceptive. Accordingly, the applicant has failed discharge the onus that he did not engage in the conduct as alleged. 5. In determining his response in relation to Allegations 6-9, the Commissioner was troubled that the applicant appeared to be embellishing the reasons behind his arrest of Mr Campbell with a view to providing his actions "with a legitimacy that does not exist". 6. The Commissioner was particularly concerned that the applicant was not aware that a Police Officer could not arrest someone for the purposes of establishing identification. The Commissioner considered an understanding of a Police Officer's powers of arrest was a fundamental skill and was something the applicant should have known, particularly given his rank and experience. The Commissioner determined it was "very concerning" that a Police Officer of the applicant's rank and experience was unaware of Police powers of arrest. 7. Notwithstanding the lengthy period between the arrest of Mr Campbell and the making of his Response, the Commissioner determined the applicant had continued to demonstrate a lack of understanding or acknowledgement that he unlawfully arrested Mr Campbell in circumstances where all he was seeking to do was confirm his identify. 8. Moreover, the applicant in his Response has attempted to excuse his behaviour on the grounds that the arrest was also for the safety of the SPAR Supermarket employees. However, the Commissioner determined there was no evidence before him to suggest that Mr Campbell presented any danger to the safety of those employees. In addition, the Commissioner concluded the applicant was not in a position to make any realistic assessment of any such danger without first speaking in some detail with the employees concerned, which he failed to do. 9. The Commissioner also took into consideration the fact that the SPAR employees accept that Mr Campbell was merely loitering and presented no immediate or apparent danger. 10. Police Officers must have a clear working knowledge of their powers and particularly those arising under the Law Enforcement (Powers and Responsibilities) Act. 11. The Commissioner also considered that in arresting Mr Campbell unlawfully, the applicant failed to comply with legislation and various NSWPF policies in circumstances where he did not immediately create a Custody Record, nor did he contact a support person for Mr Campbell or contact the Aboriginal Legal Service concerning his detention. 12. The applicant's misconduct shows an ongoing lack of compliance with various policies and procedures of the NSWPF, in addition to "a concerning pattern of failures to comply with your own obligations and responsibilities as a sworn officer". 13. The Commissioner also stated his concerns about the applicant's conduct were heightened by the fact that his Response showed an apparent lack of regard to the seriousness of these failures and that he should escape sanction altogether – which shows a disturbing lack of insight from an officer of his rank and experience. The Commissioner further determined: I am very concerned that it seems that you falsified a COPS Event. You admit in your Response that the COPS Event was not timely, but say that it was inaccurate because you forgot what occurred. You made the COPS entry five days after the arrest. I find it very hard to believe that you forgot the details of what occurred only five days after the incident. Of course, had you complied with your obligations and made contemporaneous records, no such loss of memory would have affected the content of the COPS Event. In the COPS Event, you state that Mr Campbell was asked to move on from the supermarket. If you had forgotten what occurred, that may explain an omission from the COPS Event. However, it does not explain the inclusion of information like the provision of a move along direction, which was something that simply never occurred. In my determination, the inclusion of a reference to a move along direction that was never provided is not consistent with a failing memory, but rather, is false information you created and included in the COPS Event. This is consistent with a finding that you have deliberately falsified NSW Police Force information. Once again, this is another attempt by you to try and give your conduct a legitimacy that does not exist, rather than demonstrate any insight or remorse for your failures that may give me confidence in your suitability to remain a sworn officer. Ultimately, the falsification of a COPS entry is very serious and casts a significant shadow over your integrity. I do not have confidence that you have the candour or integrity that is required from sworn officers, in view of this behaviour. Conduct towards Ms Everingham and interference with investigation by another Police Officer – Allegations 10 and 11 Commissioner's Reasons for applicant's removal – Summary 1. At or around 2:45 pm on 26 March 2015, Ms Leah Everingham, the applicant's former partner states that she was walking to the Riverside Gym on Moon Street, Ballina where she works as a gym instructor. While talking to a client, she noticed the applicant, who was on sick leave at the time, behind her. Ms Everingham states the applicant approached her and said: I'm here to apology's [sic]. 1. Ms Everingham subsequently told the applicant: I'm not going to talk to you, I am going to work. 1. Ms Everingham then observed the applicant began to follow her into the gym saying: If you don't talk to me now I am going to follow you up there. 1. Ms Everingham states she started to cry and the applicant responded: I'm not here to upset you, I just want to apologies [sic]. 1. When Ms Everingham arrived at the front door of the Riverside Gym, she states the applicant placed his foot against the door to prevent her from opening it. Ms Everingham states she subsequently told the applicant as she attempted to open the door: You can't do that. 1. The applicant then pushed the door closed on Ms Everingham who began telling the applicant, "you can't do that, you can't do that" while attempting to open the door. According to Ms Everingham, the applicant then stated: I just want one minute, I just want one minute ... Why are you treating me like shit. 1. Ms Everingham managed to open the door and as she "ran inside" the applicant called out to her: Thanks a lot Leah. 1. The incident was partly captured by non-audio CCTV footage which appears to show the applicant closed the door to the Gym preventing Ms Everingham from entering. 2. At or around 6:30 pm, Ms Everingham finished work and noticed the applicant was waiting for her downstairs. She walked straight to her car with a friend, Ms Linsey MacDonald. Ms Everingham states she immediately got into her car and started the engine when the applicant began banging on her car window yelling: Don't embarrass me, don't embarrass me. 1. The following conversation between Ms Everingham and the applicant followed in words to the effect of: Everingham: I am not turning the car off, I am driving off, leave me alone. Applicant: I had to explain to you that I have just been down to the Inspector at the Police Station. I told the Inspector that I had been harassing you and had been out of control. That I had been wrong and my behaviour had been wrong. The Inspector has given me 21 days to explain myself and I have been forced to move. Everingham: There is nothing to explain, your behaviour is not normal, I am going to leave now and drive home. 1. According to Ms Everingham, the applicant subsequently leaned into her car window and attempted to grab the keys and turn the ignition off. Ms Everingham subsequently stopped the applicant from taking her keys. Ms Everingham states that shortly thereafter, the applicant turned to Ms MacDonald and the following exchange ensued: Applicant: You have a friend here to protect you, we should be talking in private. Ms MacDonald: I'm not going anywhere, you need to stop harassing Leah, and I am not going to go anywhere". Applicant: I am sorry for ruining the last two years of your life. 1. Senior Constable Bransgrove and Leading Senior Constable Wilks were rostered to work from 6:00 pm on 26 March 2015 to 6:00 am on 27 March 2015 at Ballina Police Station. At or around 7:30 pm on 26 March 2015, Senior Constable Bransgrove states he was seated in the front counter area of the Station when a female attended the counter accompanied by an elderly male and female person. Senior Constable Bransgrove states the female asked "if they could talk in private" and he subsequently led the female, later known as Ms Everingham, to the interview room where a conversation to the following effect ensued: Bransgrove: So what do you need to talk to me about? Everingham: I'm having trouble with an officer attached to this Police Station, I don't know what to do. Bransgrove: I am going to have to start making a record of our conversation, if you don't mind. Sorry, but what is your name and who are we talking about? Everingham: My name. is Leah Everingham and the officer is Darryl Pace, but please I don't want any of this recorded, I just need some advice from you, or just someone to call Darryl and get him to leave me alone. Bransgrove: Before I can give you any advice I am going to have to find out from you what has happened. 1. According to Senior Constable Bransgrove, as Ms Everingham was about to provide him with her version of events, he heard someone say, "Are you fucken serious". As the Senior Constable looked up, he observed the applicant walking into the interview room where he said to Ms Everingham, Do you want me to lose my job now too? 1. Senior Constable Bransgrove states he stood up and informed the applicant, "Darryl, get out of here now." He further states the applicant did not acknowledge him and was staring at Ms Everingham repeating the words, "Are you fucken serious". The Senior Constable proceeded to move himself between the applicant and Ms Everingham placing his right hand on the applicant's left shoulder. The following exchange ensued: Bransgrove: Darryl, you need to get out of here right now. Applicant: Don't fucken touch me. 1. Shortly thereafter, the applicant pulled his shoulder away in a backwards movement and Senior Constable Bransgrove states he told the applicant to "go, get out". He then pointed at the door and said, "Go, get out". The Senior Constable proceeded to place his right hand on the applicant's left shoulder and told him, "Darryl, get out of here now". The Senior Constable states the applicant subsequently sunk down to push his legs against him and lifted his left arm causing the Senior Constable's right-hand to slip off the applicant's shoulder. 2. Senior Constable Bransgrove states he told the applicant again to "get out of here", grabbed his left arm and with his right hand behind the applicant's back shoved him towards the door stating "Get the fuck out of here now". 3. Leading Senior Constable Wilks heard the altercation between the applicant and Senior Constable Bransgrove and observed the Senior Constable pushed the applicant to the chest, knocking him backwards out of the interview room into the hallway. Leading Senior Constable Wilks states he told the applicant, "Pacey, you can't be in here, get out", and then opened the door to the foyer while Senior Constable Bransgrove pushed him to the chest area and out of the Police Station. 4. Leading Senior Constable Wilks further states he observed the applicant step back into the doorway, refusing to leave. In response, Leading Senior Constable Wilks and Senior Constable Bransgrove both subsequently pushed the applicant to the chest area to cause him to stumble backwards. The Senior Constable states he opened the Station's front door, placed his hand on the applicant's back and pushed him out the door saying, "Darryl, get out and you have no need to be here". 5. The Commissioner stated the incident was partially captured by CCTV and the footage taken from inside the Police Station depicts the applicant being in attendance at 7:33 pm on 26 March 2015 and within a minute of arriving, being forcibly removed from the premises 6. Senior Constable Bransgrove states he subsequently invited Ms Everingham's parents who were sitting in foyer to join Ms Everlngham while he and Leading Senior Constable Wilks dealt with the incident and obtained Ms Everingham's statement. 7. At or around 7:35pm, Leading Senior Constable Wilks called Acting lnspector Crotty to inform him of the incident. As a result, Acting Inspector Crotty attended Ballina Police Station. The applicant also attended the Station at or around 8.55pm when an exchange to the following effect ensued: Applicant: What is Leah doing? Crotty: Lachlan [Bransgrove] is taking a statement from her regarding your behaviour. Applicant: What the fuck is Lachlan on about grabbing me by the throat and telling me he will throw me in the bin. Crotty: Darryl if you want to say something about your treatment I will take the report. Applicant: I don't want to do that. .. If an AVO is taken out I will have to leave the area. Crotty: Darryl, let's try and get in contact with your general practitioner for you to speak to. Applicant: I saw her yesterday and she's referred me to a psychologist. Crotty: What is her name? Applicant: Francesca O'Neill of Lennox Head ... She works at Lennox Head Medical Centre. 1. Acting lnspector Crotty states he subsequently left a message at Lennox Head Medical Centre requesting Dr O'Neill to contact the applicant. The Acting Inspector then had a conversation with Senior Constable Bransgrove, who advised him that Ms Everingham was reluctant to provide Police with a complete version of events with respect to the applicant's behaviour. Shortly thereafter, the Acting Inspector states he had a conversation with the applicant in words to the following effect: Applicant: Is there going to be an AVO? Crotty: The statement is still being taken, an AVO may be applied for the protection of Leah. Applicant: Why is it taking so long? Crotty: Leah is searching for some text messages. Applicant: I have done nothing wrong, I only wanted to say goodbye to Leah as I'm leaving. 1. Acting lnspector Crotty states he subsequently advised Ms Everingham that the Police would make an application for an AVO on her behalf. The Acting Inspector created COPS Event E19665#### and made an application for a Provisional AVO against the applicant for the protection of Ms Everingham. Justice Raymond issued a Provisional AVO at 1:43 am on 27 March 2015. 2. Acting Inspector Crotty and Inspector Johnson served the Provisional AVO on the applicant at his Ballina residence at approximately 2:55 am on 27 March 2015. According to the Acting Inspector, as he proceeded to read the AVO to the applicant, the applicant stated, "I know what they are". The Acting Inspector responded to the effect that he was required to explain the Order to him: I have to explain the order to you… Darryl this is a provisional apprehended violence order against you for the protection of Leah Everingham. You are directed to appear at Ballina Local Court at 9:30 am on Thursday, 16 April 2015. The conditions are listed on page 2 of the order… Can you read the order why [sic]'s we are here and I can answer your questions? 1. Acting lnspector Crotty states that he and Inspector Johnston subsequently talked with the applicant concerning his welfare. The applicant also read the Provisional AVO in their presence and stated, "What she said, happened". The Acting Inspector also states Inspector Johnson advised the applicant about the Employee Assistance Program. 2. At or around 4:08 am on 27 March 2015, Acting Inspector Crotty states he called Ms Everingham to inform her that the Provisional AVO had been granted and served on the applicant, who was not to have any contact with her. The Acting Inspector also advised Ms Everingham the Order was listed at Ballina Local Court on Thursday, 16 April 2015. 3. Acting Inspector Crotty states that at around 5:10 pm on 29 March 2015, he contacted the applicant and talked to him about his welfare. The applicant told him it would be defending the AVO. 4. The applicant was ultimately charged with two counts of "stalking" and one count of "hindering Police". All charges were subsequently dismissed by the Magistrate at Tweed Heads Local Court on 14 March 2016 under s32 of the Mental Health (Forensic Provisions) Act 1990. The Magistrate declined to issue a final AVO on the grounds that the provisional order had been in place 12 months. Applicant's response to Investigator's Report 1. The Commissioner's Reasons stated the following with respect to the applicant's response to the Investigators Report: In your response to the investigator's report dated 26 July 2016, you said that "although the behaviour occurred, as the court recognised, it occurred when I was suffering from a mental condition for which treatment was available". You said that the criminal matters that relate to these allegations were finalised in the Tweed Heads Local Court and that all charges were dismissed. You note that you were discharged into conditional care and were subject to a treatment plan. You said that you complied with all the conditions of that discharge and the treatment plan. You also said that you complied with the directions set out by your Commander and that the final apprehended domestic violence order was not made as the interim order had been enforceable for 12 months and no contraventions of that order occurred. Applicant's response to Commissioner's Notice 1. The Commissioner noted the applicant's response to the Notice set out the various factors that he contends impacted on his conduct, REDACTED. The applicant also submitted he had complied with all requirements of his treatment plan and the interim AVO order. He was now rehabilitated. Applicant's case – why removal is harsh, unreasonable or unjust Applicant's evidentiary case 1. The applicant stated he agreed with the proposition that domestic violence was not acceptable conduct and he had never asked the Commissioner "to accept it". Nor has he sought to submit his mental illness and poor mental health was excuse for his conduct concerning the Everingham incident. Rather, his mental state at the time goes towards explaining his conduct and is a factor in mitigation. He also sought to rely upon the Local Court decision made under s 32 of the Mental Health (Forensic Provisions) Act in mitigation. 2. The applicant stated that he had complied with the AVO at all times and he continued to be treated by his psychologist and psychiatrist. He also incurred legal fees of $11,000 in defending the AVO. 3. The applicant considered that in hindsight, he came back to work too early following his PTSD diagnosis and in that regard, he "should have put his hand up" earlier and sought immediate help. 4. REDACTED. 5. The applicant later stated that his "breakdown" was massive. Applicant's Character evidence Detective Superintendent Linda Howlett 1. Detective Superintendent Howlett is the Commander of the Financial Crimes Squad. She has previously worked in the Child Abuse Squad and was appointed Commander of the Sex Crimes Squad in 2012. 2. Detective Superintendent Howlett provided the following Reference: I am aware that Detective Senior Constable PACE has been given a 181D show cause notice. I have read the document. In 2008 through to 2012, I held the role as the Manager of the Joint Investigation Response Team (JIRT) now known as the Child Abuse Squad (CAS). I was based in Sydney, however, JlRT offices were located at 23 sites around the State including Ballina. Whilst at JIRT, I had contact with Detective Senior Constable PACE via the Telephone, emails and site visits. In all of my dealings with DSC PACE, I found him to be a professional and dedicated officer. Dealing with Child Abuse investigations is extremely stressful but he managed the stress quite well. DSC PACE was a committed officer, who was passionate about assisting children and doing his utmost to protect them. When the Team Leader (D/Sgt) at Ballina commenced sick report, I did not hesitate to recommend DSC PACE to relieve. He performed the role of a Detective Sergeant to a very hlgh standard. I did not have any issues' with hls work. To my knowledge he was not the subject of a complaint. After I left JIRT, I transferred the Sex Crimes Squad. I became aware that DSC PACE was going through a difficult period due to the break-down of hls marriage REDACTED. I believe through treatment DSC PACE has moved on from the period of difficulty that he has experienced. I support him in being allowed to remain a member of the New South Wales Police Force. 1. In cross-examination, Detective Superintendent Howlett said she was shocked by the content of the allegations set out in the show cause notice: Completely and utterly out of character. Actually I was shocked when I read it. It wasn't the experience that I've had in the past with Darryl. It was like he's gone off the rails. 1. With respect to the Everingham incident allegations, Detective Superintendent Howlett agreed the applicant's behaviour was "totally and utterly unacceptable". Although she had not worked directly with the applicant since 2012, Detective Superintendent Howlett contended the applicant's conduct "just doesn't reflect on the Darryl Pace that I used to work with". 2. With reference to the s 181D Notice, Detective Superintendent Howlett stated that when asked to comment on the applicant's character, she was not provided with the two large folders containing supporting documentation to the applicants show cause Notice. 3. REDACTED. Moreover, child abuse and sexual assault Police work is soul destroying and "affects everyone who does this type of work". The applicant's conduct is unacceptable and the punishment of removal was too severe. 4. In further cross-examination, the following exchange ensued: Q. When you say, Detective Superintendent Howlett, that you didn't think the crime was befitting of his removal from the New South Wales Police Force, are you saying that you think the conduct wasn't serious enough or are you simply saying that there were mitigating circumstances in light of his personal situation which— A. I say there's mitigating circumstances in light of - I'm not saying that his behaviour has been acceptable in any way, shape or form. Had he been working for me at the time, I probably would've slapped him and pulled him on. However, I believe there's mitigating circumstances. Jason Carr 1. Mr Carr is a former Sergeant with NSW Police having served between 1996 and 2012. Mr Carr was medically retired in 2012. He deposed that he had read the Commissioner's s181D Order served on the applicant on 11 December 2017. A Reference attached to his statement said in part: I first met Darryl in 2001 when I was stationed at Redfern LAC. At that time, we were both performing general duties. I found Darryl to be a committed member of the Police force whom conducted himself in a professional and honest manner whilst conducting his duties. I have known Darryl for some 17 years and find the matters for which he has been served a dismissal notice totally out of character. In my experience, I've always found Darryl to be a trustworthy and honest individual. Without hesitation, I can affirm that I believe Darryl should be able to remain a valued member of the New South Wales Police Force. 1. In cross-examination, Mr Carr stated he regarded the applicant as a friend. Mr Carr estimated that he performed general duties directly with the applicant for approximately 12 months and indirectly for some two years. The following exchange ensued: Q. So in terms of your direct observations of his conduct, it would've been limited to that three year period? A. Yeah, having interactions with him on a professional level. Q. Yeah, and the direct interactions you had with him would've been for the first twelve months and you would've had incidental interactions with him in the two years that followed? A. That's probably fair to say, yes. Q. And your observations of his conduct in terms of being - and his manner was for that two year period, three year period? A. That's correct, yes. 1. Mr Carr was surprised at the allegations put against the applicant and considered they were out of character. Detective Inspector Christopher Goddard 1. Detective Inspector Goddard has been assigned to the Child Abuse and Sex Crimes Squad (CAS) since 2011. He deposed that he had read the Commissioner's s181D Order served on the applicant on 11 December 2017. A Reference related to the time the applicant worked in CAS was attached to his statement. 2. Detective Inspector Goddard stated that when he commenced duties at CAS in 2011, Ballina is one of the busiest CAS offices in New South Wales and understaffed with three officers performing duties instead of the five that were substantively allocated. It was at that time he formed a working relationship with the applicant. The applicant was performing Team Leader and investigation duties. 3. Detective Inspector Goddard contended the high workload at the time created a degree of stress for the three staff members undertaking CAS work. In the circumstances at the time, he considered the applicant performed his duties well. He was able to prioritise investigations and ensure management of complex child abuse matters with limited resources. The applicant would always be cognisant of the status of those investigations. He was a responsible Police Officer who expressed empathy towards victims. 4. Towards the end of 2011, the applicant reported sick and was eventually placed in the care of a psychologist. During that time, Detective Inspector Goddard maintain contact with the applicant and at some point, the applicant told him that his marriage had broken down and he had moved out of his matrimonial home. 5. The applicant later commenced a return to work plan at Ballina Police Station where he performed General Duties and relieved as a Sergeant in the role of a Team Leader. At this time, the applicant's health and well-being "was on the improve". He was also aware the applicant became involved in a relationship and "appeared happy with the direction he was heading". 6. REDACTED. REDACTED. REDACTED. REDACTED. 1. In cross-examination, Detective Inspector Goddard confirmed he had read the S 181D Notice. He had also read some of the supporting character statements in support of the applicant but had not read the two volumes of documents relied upon by the Commissioner to support his decision to remove the applicant. 2. The Detective Inspector explained that he managed and supervised the applicant for about six months prior to his departure on sick leave. He also kept in contact with the applicant as a manager and support person during time the applicant was off work. 3. The Detective Inspector agreed it would be fair to say that he had based his support for the applicant on his own direct observations when he had managed him. 4. Detective Inspector Goddard agreed with the proposition that it was a matter for the Commissioner of Police to determine whether the allegations were serious so as to warrant the applicant's removal. Maria Rustja 1. Ms Rustja is a former Detective Superintendent of NSW Police. She was the Commander of the Child Abuse Squad from October 2010 to January 2014. 2. Ms Rustja deposed the allegations put against the applicant were totally inconsistent with the actions and dedication of the applicant's behaviour when he was a member of the JIRT in Ballina. 3. The Ballina JIRT was one of the busier teams in the State in or around October 2010 with a Staff of one Detective Sergeant and three or four Detective Constables. 4. At the time, the applicant worked in a full-time position with his then wife working in another JIRT position on a part-time basis. The other JIRT members were either off on long-term sick leave or the positions were vacant. Accordingly, the applicant was under immense pressure to manage new child abuse cases as well as the previous cases being investigated by his now sick colleagues. Ms Rustja also stated the applicant had to physically respond to most of the off-duty notifications and callouts. 5. Ms Rustja further deposed: Under enormous difficulties and pressure, DSC Pace acted with professionalism, dedication to his duties and most importantly provide empathy, courtesy and care to the victims of child sexual assault. Somehow, he managed the new investigations, the brief preparation, the court matters and caseloads with the due diligence expected of his office. Albeit that Ballina JIRT became better staffed over time, I fear the pressures placed upon DSC Pace to perform his duties add to a declining mental health until the report of sick in late 2011. The breakdown of his marriage and disconnection with his children soon followed. REDACTED. 1. Ms Rustja urged the Commissioner to take account of the applicant's mental health issues and consider an alternative option to removal so as to enable the NSWPF to support his mental health rehabilitation plan. She considered the applicant could continue to provide a valuable service to the NSWPF if he was able to perform a non-operational role. 2. In cross-examination, Ms Rustja confirmed she had read the applicant's s181D Notice. However, she had not read the accompanying documents relied upon to remove him as they were not given to her. 3. Ms Rustja confirmed her observations concerning the applicant's performance were observed while he was under her command for approximately 12 months before commencing sick leave. She did not supervise him on a day-to-day basis – that was undertaken by Detective Inspector Goddard. 4. Ms Rustja stated she was both surprised and saddened when she read the allegations. In her view, the applicant was kind, motivated, sincere and empathetic towards victims under enormous work pressure. 5. In relation to the allegations, Ms Rustja stated they would cause concern amongst supervisors and Commanders. However she maintained that an operational role would suit the applicant and allow him to redeem himself in circumstances where he could be monitored to establish whether he was suitable for a return to frontline policing. Robert Killian 1. Mr Killian is a former Detective Senior Constable and the applicant's brother in law. He deposed the applicant had worked "in the busiest and most demanding policing environments and served the community to the highest standard for his whole career". 2. Mr Killian deposed that he was keen for the applicant to leave the Sex Crimes Unit because he was conscious that type of work "is very confronting and stressful". Moreover, the applicant had told him on a number of occasions the wanted to leave the Unit because he found the work "to be increasingly confronting and upsetting". 3. Mr Killian was aware of the applicant's relationship with Ms Everingham who he had met together with her children and parents. He was also aware of the circumstances concerning the breakdown of that relationship and "some of the allegations she has made against Darryl" which he considered were out of character. 4. In cross-examination, Mr Killian confirmed that his observations concerning the applicant's policing history were largely based on conversations he had had with the applicant. 5. Mr Killian confirmed that he had read the s181D Notice and agreed with the proposition that those allegations cast doubt on his integrity. He had not read the documents that had accompanied the Notice. Mr Killian also stated he had read a number of statements filed in support of the applicant but had not seen the statement from Ms Everingham. 6. In relation to the Everingham incident, Mr Killian stated that based on his observations, the applicant's conduct was "totally out of character and not in line with the relationship they had together". 7. In re-examination, Mr Killian confirmed that the statements he had read had been filed as part of these proceedings. Applicant's response to s 181D Notice why removal is harsh, unreasonable or unjust 1. The charges against him arising from the Everingham incident were dismissed and dealt with under s 32 of the Mental Health (Forensic Provisions) Act. The AVO took 12 months proceed to the Local Court. In the interim, no contraventions of the order occurred nor were there any complaints or other issues raised. The applicant urged the Commissioner to consider that he had: * complied with all of the conditions of the AVO Order; * complied with all the directions as set by the Richmond Command and the State Crime Command without any complaints or issues; * complied with his treatment plan without any issues arising; * continued to see his treating general practitioner, treating psychologist and psychiatrist; and * made no threats of violence, intimidation and the like towards any party involved with the incident. 1. The applicant stated he had completed extensive therapy and recovered from depression and PTSD. His treatment plans continue and he believed he now had "the tools to deal with stress and difficult situations in the correct manner". The applicant also stated that his general practitioner, treating psychologist and psychiatrist consider he is now fully rehabilitated following a lengthy struggle with personal issues, work-related depression and PTSD. 2. The applicant stated that at the time of the Everingham incident, "it was an extremely difficult time for me". REDACTED. Applicant's submissions – why removal is harsh, unreasonable or unjust 1. The applicant considered the Everingham incident allegations were by far the most serious allegations underpinning the Commissioner's Statement of Reasons in support of his removal from the NSWPF. 2. The Local Court had shown compassion in dealing with his application under s 32 which took proper account of his mental health issues. The Commissioner took a different approach and removed the applicant after 17 years' service, much of it which involved the investigation of child sexual abuse in confronting circumstances, particularly given the nature of the applicant's personal and psychological state. 3. Notwithstanding the applicant's admission that he was verbally abusive and threatening towards Ms Everingham, the Commission should consider his cross-examination and "find him to be an honest, forthright and genuine witness". His evidence was consistent and considered, despite at times giving evidence about matters which were quite clearly very upsetting and distressing and required him to recall and revisit those matters. 4. The objective evidence supports the applicant's version of events and in that regard, the mobile phone footage largely, if not entirely, supports the applicant's version of events concerning allegations that he banged on Ms Everingham's car window, leaned into the car window and tried to grab her keys: The applicant is not heard to raise his voice other than to plead with Ms Everingham for two minutes of her time. The applicant's voice is heard to be perhaps one could describe it as strain, stressed or anxious. It is not a threatening or abusive voice. Indeed at times one is unable to hear what the applicant is saying. This is consistent with the applicant's version and of someone raising their voice to threaten abuse, as was suggested. What the footage shows is an exchange consistent with the applicant's evidence … The footage lends real way to is accounted supports a finding that the applicant is an honest, reliable and credible witness. The footage goes to proving that the untested version of events of this Everingham is either wrong, has been embellished or is untruthful. It is submitted the Commission would not find the applicant to have engaged in the denied conduct in respect of this allegation. The onus is on the respondent to make out the denied misconduct and it is submitted the respondent has not carried that onus. 1. The applicant submitted the video footage does not show him grabbing Ms Everingham's car keys, abusing and threatening her at the car window and preventing her from leaving the vehicle. The footage does not depict a threatening and abusive perpetrator of domestic violence. The applicant simply "wanted closure to discuss things". 2. The Commissioner did not call Ms Everingham or other witnesses involved with the incident. In his cross-examination, the applicant vehemently denied Ms Everingham's version of events relied upon by the Commissioner. It was the applicant's case that these witnesses should have been called. 3. It was put to the Commission that Ms Everingham lacks credibility because she entered into a personal relationship with the applicant in circumstances where she was his treating exercise physiologist and in a position of authority and power over him. Her conduct was a serious contravention of her professional responsibility not to enter into a relationship with a patient. Her absence from proceedings and that of her parent's and Ms MacDonald has meant that the applicant has been unable to challenge her version of events,. The applicant submitted it was open to the Commission to draw a Jones v Dunkel (1959) 101 CLR 298 inference. 4. The applicant submitted the breakdown of his relationship with Ms Everingham was a factor which weighed heavily on him and "goes some way to explain his conduct on 26 March 2015. The applicant's treating psychologist, Ms McMaster made a number of observations about the applicant's relationship with Ms Everingham: The relationship with Ms Everingham was fundamentally flawed due to the power imbalance resulting from her superior position as a treating health professional. Ms Everingham was Mr Pace's exercise physiologist under the treatment plan for PTSD. As she was providing treatment related to PTSD, she should have been aware of Mr Pace's vulnerability and sensitivity, yet she entered into a sexual relationship which contributed to the ending of his marriage. To withdraw from the relationship, with him, REDACTED was an action lacking in both compassion and insight. This would have caused Mr Pace an overwhelming amount of distress, REDACTED. Mr Pace would have been well within his rights to lodge a formal complaint against Ms Everingham with her accreditation body, however he declined to do so as he did not wish to cause her further distress. 1. The applicant submitted Ms McMaster had been treating the applicant since May 2015 and was well placed to give a first-hand assessment of the applicant's mental health, particularly when compared to Dr Allnutt, who saw the applicant only once in the context of a medico-legal consultation on 15 August 2018. The applicant submitted Ms McMasters' evidence was significant in two respects: First, it goes to better understanding of the background and context in which the applicant conducted himself on 26 March 2015 and, secondly, it demonstrates remorse and contrition on behalf of the applicant, as he did not make a complaint about Ms Everingham, when it is submitted it would have been well within his right to do so. 1. Moreover, with respect to Ms McMasters' evidence, the applicant rejected the proposition put in cross-examination that in order for Ms McMaster to make a proper assessment of the power imbalance in the relationship, Ms Everingham's side of the story would need to be taken into account. This was a curious position for the Commissioner to take in circumstances where Ms Everingham was not called to give evidence. Further, the fact that Ms Everingham entered into a sexual or personal relationship with the applicant reflects poorly on her credit and character. 2. In her report, Ms McMaster stated she considered there would be no psychological barrier to the applicant returning to duties. In cross-examination, she agreed in general terms with Dr Allnutt that there was a chance of recurrence but that risk is no different to the risks associated with Police Officers currently performing their duties with a diagnosed psychological illness or who are in remission. Accordingly, the suggestion from Dr Allnutt that the applicant will suffer a recurrence is entirely speculative. 3. The applicant sought to rely upon the evidence of Constable Bransgrove and Acting Inspector Crotty to support the applicant's claim that he was in a distressed state on the night of 26 March 2015. For his part, Constable Bransgrove stated in cross-examination that the applicant was upset, distressed and angry on the night. Acting Inspector Crotty's evidence was that when the applicant entered the Police Station on the night of 26 March 2015, he was highly emotional: He sobbed, cried loudly, swung back and forth on his chair and mucus fluid came out his nose. I was aware of an external stressor in the applicant's life and I explained to the applicant he needed to calm down. REDACTED. 1. The Acting Inspector subsequently sought to contact the applicant's medical practitioner, Dr O'Neill. 2. The applicant submitted his behaviour with respect to the Everingham incident was well out of character and followed a series of events that put immense pressure on his mental health. REDACTED. Shortly thereafter, Ms Everingham ended her relationship with the applicant. It is no coincidence that the applicant's conduct underpinning Allegations 10 and 11 occurred REDACTED and the ending of his relationship with Ms Everingham. In that regard, the applicant sought to rely upon the Full Bench decision in Police v Eade Smith [2010] NSWIRC 162 to support the proposition that the mitigating circumstances involving the applicant's medical evidence in this case was compelling and support a finding by the Commission of harshness. At [2], Walton and Staff JJ observed: The conduct engaged in by Mr Smith which brought him to notice under the provisions of div 1B of pt 9 of the Police Act 1990 were such that only compelling mitigating circumstances may have justified a finding of harshness, particularly when public interest considerations were taken into account. However, the justification for the conduct in this case was to borrow the analysis undertaken by Peterson J in Rowles v Commissioner of Police [2000] NSWIRC 157 at 36 of a high level, because the evidence in the proceedings established that Mr Smith's behaviour was an aberration deriving from a recognised and diagnosed mental condition. It is in the public interest that medical conditions arising from employment of the kind experienced by Mr Smith receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities. Further, the trial judge was correct in her finding that there was a procedural error in the Commissioner not having proper regard to the explanation provided by Mr Smith, misconduct based upon his psychological illness. 1. The applicant submitted he was remorseful for his actions and had learned from his indiscretion. The applicant's insight and remorse were identified in Ms McMasters' report dated 30 May 2015: In his first session, Mr Pace expressed bewilderment, regret and remorse in relation to the incidents that had occurred during the break up of a significant relationship and disappointment at interactions he had experienced with Police since that time. 1. The applicant sought to rely upon his character witness evidence and noted none of those witnesses condoned his conduct. Moreover, those witnesses had acknowledged the personal strain and stress upon the applicant in or around the time of the Everingham incident. Shortly stated, the applicant submitted his character evidence supports a finding that is removal was harsh in the circumstances. Case presented by Commissioner in answer to the applicant's case 1. The Commissioner determined the applicant cannot depart from his evidentiary case as filed and outlined in his opening submissions. In essence, the applicant argued his removal was too harsh. The applicant did not deny that he engaged in misconduct but sought to rely on a number of mitigating circumstances to ameliorate the serious nature of that misconduct such as his mental health and personal circumstances at the time. 2. It was Ms Everingham's evidence that the applicant leant into her car and sought to remove the ignition keys. It was also her evidence that she felt constantly harassed by the applicant. In cross-examination, the applicant remembered knocking on the car window but otherwise denied banging on the window and yelling. 3. The applicant also seeks to rely on the fact that the video footage filmed by Ms Macdonald does not show him leaning into the car and attempting to remove or grab the ignition keys. The Commissioner submitted the video footage does not show the entirety of conversation the applicant had with Ms Everingham and it is apparent that Ms Macdonald only commenced filming the incident after it had already escalated. 4. Given the contemporaneous statements of Ms Everingham and Ms Macdonald concerning the incident, the Commission should find that the applicant banged on the car window and leant into the vehicle in an attempt to grab the ignition keys. 5. The Commissioner submitted that it seems completely implausible for the applicant to argue that Ms Everingham did not feel threatened, abused or intimidated by his conduct. There were reasons why Ms Everingham felt the need to visit Ballina Police Station on 26 March 2015 and ultimately seek an AVO. 6. The Commission should ignore the applicant's submissions which seek to dispute paragraphs (i) and (ii) of Allegation 10 concerning his alleged verbal abuse of Ms Everingham, preventing her from entering her workplace and the car window/ignition key incident that occurred later in the evening on 26 March 2015 on the grounds that they were not raised or supported by evidence in his primary case. 7. In response to the submission that the Commission is entitled to draw a Jones v Dunkel inference on the grounds that the Commissioner failed to call Ms Everingham as a witness, the Commissioner sought to rely on the Directions made on 25 June 2018 which directed the Commissioner to file medical evidence and any lay witness evidence in relation to the medical evidence in October 2018. There were no directions for any other evidence to be filed. Accordingly, no Jones v Dunkel inference should be made in circumstances where the applicant has the onus of proof. 8. Moreover, the Commissioner has no evidentiary onus to discharge based on the applicant's "formalised admissions". The Commissioner was unaware prior to the applicant's cross-examination that his conduct subject to Allegation 10 was not admitted conduct. It was therefore reasonable to expect there was no reason to call Ms Everingham. It was of course open at all times for the applicant to call Ms Everingham or any other witnesses in relation to the allegations in order to prove that the conduct as alleged by the Commissioner did not occur. In any event, a Jones v Dunkel inference cannot bridge a gap in the applicant's case or be used as a device to overcome the absence of a positive case being presented to discharge his burden of proof. 9. The Commissioner's version of events concerning Allegations 10 and 11 must be accepted by the Commission and Allegation 10 must be sustained. 10. The Commissioner submitted that in the event the Commission is persuaded to accept the applicant's change to his case as filed, particularly in relation to sub-paragraph (i), the Commissioner contends the applicant has adduced insufficient evidence to discharge his onus under s 181F(2) nor has he sought to justify or explain his departure from his original case. His bald denial is clearly insufficient to discharge that onus. Accordingly, it follows that only the events that occurred outside the Riverside Gym at around 6:30 pm on 26 March 2015 are in dispute. 11. In cross-examination, the applicant at first accepted that the contents of the statements of Ms Everingham, her parents and Ms Macdonald were true. In his Response, the applicant understood the seriousness of his conduct and admitted that the incidents comprising Allegation 10 had in fact occurred. In that regard, his dissembling answers in cross-examination and his multiple inconsistent responses demonstrate that his evidence is inherently unreliable and his most recent denials concerning his conduct on 26 March 2015 should not be accepted: The lack of reliability of Mr Pace's evidence is reinforced by his own acknowledgement that his recollection of events on 26 March 2015 was "unclear". One such example is Mr Pace's evidence that he had no recollection of putting his foot against the door to prevent Ms Everingham from entering Riverside Gym contrary to the CCTV footage. It is implausible that Mr Pace had a clear recollection of events on 26 March 2015 in circumstances where his recollection of critical events did not match the objective evidence of what occurred. If anything, Mr Pace's departure from his original case is another example of his lack of integrity. Mr Pace has an obligation as a sworn Police Officer to answer questions truthfully. Mr Pace must have either lied in his Response and written statements, or to the commission during cross-examination when he withdrew his admissions. Both cannot be true. In one sense, which account is true does not really matter. His inconsistency underscores the Mr Pace does not have a proper appreciation of his obligations as a Police Officer. Nothing Mr Pace said on this point can be taken at face value because he has not presented a single consistent implausible narrative from the start. Evidence of Senior Constable Kennedy 1. Senior Constable Kennedy stated she notified the Crown Solicitors' Office by email on 7 April 2015 that an AVO application involving the applicant as the named defendant was listed before Ballina Local Court on 16 April 2015 and the Office should instruct a solicitor to appear as she was unable to do so. 2. Senior Constable Kennedy also outlined email correspondence that she subsequently sent to Inspector Bruce and Acting Inspector Crotty. She also stated Ms Everingham and her parents had booked to attend a Domestic Violence Clinic on 9 November 2015 but could not recall whether or not they attended. 3. In cross-examination, Senior Constable Kennedy explained her experience as a Police Prosecutor. While she had limited experience in child abuse matters, she recalled prosecuting a matter that involved the possession of child pornography. In that case she elected not to view the material because the argument before the Magistrate was a technical one concerning whether or not the alleged offending material had artistic merit. Evidence of Senior Constable Bransgrove 1. Senior Constable Bransgrove deposed that on the night of 26 March 2015, he took a statement from Ms Everingham concerning the alleged domestic violence that occurred earlier that day. Based on her demeanour at the time of taking the statement, he considered Ms Everingham seemed to be traumatised by the fact that she knew the applicant was at the Police Station and it took "some time" to obtain the necessary information from her. 2. A summary of what occurred when Ms Everingham first approached Senior Constable Bransgrove at the counter of the Police Station, the applicant's decision to enter the interview room, the steps taken by the Senior Constable and Senior Constable Wilks to remove the applicant and the procedures put in place to procure an AVO are largely set out in the Commissioner's Reasons. That said, Senior Constable Bransgrove stated that throughout the course of his interview with Ms Everingham, she was very apprehensive and he felt "she was holding back information that she was willing to give". 3. A copy of Ms Everingham's statement was attached to Senior Constable Bransgrove's affidavit. Relevantly, Ms Everingham states: Our relationship has been very turbulent to say the least, I recognised that Darryl had issues arising from his work history and his childhood, but Darryl's mood swings and manner of control was something that I found very hard to do with. Constantly Darryl and I would have very heated arguments, on each occasion I would leave the house only to have Darryl follow me and want to continue arguing, or he would get worse causing me to give in and return to his premises. As a result of this about 12 months ago, I managed to break up from Darryl, but not long after we broke up, Darryl started attending my work and premises. He would turn up whilst on duty, coming (sic) to my house in uniform, stand out the front my premises and yell abuse at me. He would park the work truck at the front of my place of work, come in and hang around. Darryl would always just turn up at locations that I was out, was always hanging around, both when it work and when away from work. I could never understand how we could just find me. 1. In relation to the incident that gave rise to Allegations 10 and 11, Ms Everingham stated: On the 28th day of March 2015 at 2:45 pm, I was walking along Moon Street heading to my place of work, I was about 50 metres from intersection of Moon Street and River Street. I had stopped and was talking to a Gym Client on the side of the road. I turned around and noticed that Darryl PACE was waiting in the gutter behind me. Darryl said, "I am here to apologys (sic)". I said, "I'm not going to talk to you I'm going to work" Darryl then follow me down to my place of work, Darryl was continually talking to me saying, "if you don't talk to me now I'm going to follow you up there". I started to cry, "Darryl was saying I'm not here to upset you, I just want to apologies (sic)" I then got the front door of the Riverside Gym, as I went to open the front door Darryl placed his foot against the door to prevent me from opening the door. I said, "you can't do that". I went to open the door. Again Darryl would push the door closed on me, I continually said, "You can't do that, you can't do that". While continually attempted to open the door, Darryl was just stopping me from entering my place of work. He was saying, "I just want one minute, I just want one minute" and "Why are you treating me like shit". 1. Ms Everingham stated that when she left work at 6:30 pm, the applicant was waiting downstairs. She subsequently walked straight to her car with a friend, Ms Linsey MacDonald and started the engine. The applicant walked over to her car and started banging on the window, yelling "don't embarrass me, don't embarrass me". Ms Everingham wound down her window and told the applicant, "I'm not turning the car off, I'm driving off, leave me alone". The applicant replied, "I had (sic) to explain to you that I've just been down to the Inspector at the Police Station". The exchange continued: I told the Inspector that I'd been harassing you and had been out of control …I had been wrong in my behaviour. The Inspector (has) given me 21 days to explain myself and I have been forced to move. I kept saying, "There is nothing to explain, your behaviour is not normal, I'm going to leave now and drive home". Darryl then leant in the window and attempted to grab my keys and turn off the ignition. I stopped Darryl from taking the keys. Darryl then turned around to Linsey and said, "you have your friend here to protect you, we should be talking in private". Linsey said, "I'm not going anywhere, you need to stop harassing Leah, I'm not going to go anywhere". Darryl said, "I am sorry for ruining the last two years of your life" and then Darryl walked off. … I went into an interview room just beside the front counter and informed the Officer that I had been having trouble with a fellow Police Officer. As I was explaining my situation, Darryl Pace barged into the interview room and said, "Are you fucken serious, you want me to lose my job now to". Senior Constable Bransgrove said, "Darryl get out now". Darryl refused to move. So Darryl was forcibly removed from the Police station by the officer. This behaviour from Darryl is a same type of behaviour that I have been dealing with the past 2 years, we argue, breakup, then Darryl comes back to me wanting to talk, wanting to just apologise. 1. In cross-examination, Senior Constable Bransgrove agreed the applicant appeared upset, and distressed on 26 March 2015. He was not present when the applicant was interviewed by Acting Inspector Crotty. However, the Inspector subsequently directed him to obtain a statement from Ms Everingham. He acknowledged that he had some concern for the applicant's welfare that night but also "had someone else to look after first", being Ms Everingham 2. In relation to the statement he took from Ms Everingham, the Senior Constable confirmed that she did not inform him that she was the applicant's exercise physiologist providing treatment for his PTSD REDACTED. 3. The Commissioner determined that the applicant's conduct in relation to Ms Everingham was not acceptable and adversely affected the integrity and reputation of the NSWPF. The Commissioner also determined that the applicant's interference with the investigation through his attempts to enter the investigation room on the night of the incident when Ms Everingham was being interviewed was unprofessional and designed to intimidate her. 4. The Commissioner also determined that in circumstances where the NSWPF devotes significant time and resources to combat domestic violence, the applicant's behaviour was inimical to his sworn oath of office. 5. The Commissioner considered the applicant's submission that throughout his relationship with Ms Everingham, he never made any threats of violence, intimidation and the like towards any party. He also considered the submission that he did not raise his voice when speaking with Ms Everingham at her car window nor was he abusive or threatening towards her in the afternoon of 26 March 2015. Shortly stated, the applicant's case was that the events surrounding the incident had been embellished. In support of that submission, the applicant had questioned why Ms Everingham had not been called to give evidence. 6. There is no dispute the applicant attended the Riverside Gym at around 2:45 pm and 6:30 pm on 26 March 2015. In terms of the alleged altercation with Ms Everingham, the applicant sought to rely upon the mobile phone footage taken by Ms Macdonald which does not show him: * banging on Ms Everingham's car window; * attempting to grab Ms Everingham's car keys; or * acting in a threatening or abusive manner towards Ms Everingham. 1. The Commissioner sought to rely upon the applicant's Response which does not mirror his more recent version of events set out above in relation to the altercation with Ms Everingham that occurred at 6:30 pm. Moreover, the applicant led no affidavit evidence to support his "more recent version of events". Accordingly, the applicant is unable to discharge the onus he bears under s181E proceedings without properly leading evidence. 2. The Commissioner further observed that given the mobile phone footage does not show the entirety of the conversation between Ms Everingham and the applicant at 6:30 pm, the applicant is unable to discharge the onus that he did not bang on the car window, lean into the car and attempt to grab the keys from the ignition. Other evidence Dr Stephen Allnutt 1. Dr Allnutt was retained by the Commissioner to provide a psychiatric opinion concerning the applicant's mental state. Dr Allnutt subsequently provided a detailed report on 18 September 2018. I have read this report. Given the particular nature of Dr Allnutt's report, I do not propose to summarise it in any particular detail, much of which is quite personal to the applicant. A part of the report has been redacted consistent with the terms of the non-publication order referred to above. 2. In preparing his report, Dr Allnutt had access to a range of materials including the applicant's patient health records from Lennox Head Medical Centre and his previous psychiatrist and psychologist. In addition, Dr Allnutt had access to various clinical notes and reports of the applicant's current psychologist, Ms Gina McMaster. Psychiatric medical opinion 1. Dr Allnutt was not required for cross-examination. Dr Allnutt was asked for his opinion to the following specific questions: 1. (1) If Mr Pace has suffered from a psychological or psychiatric condition previously, is the possibility of a relapse increased if he was to return to the NSWPF (relative to if he did not return)? Dr Allnutt determined that based on his history, the applicant would be diagnosed with recurrent depressive disorder and recurrent chronic post-dramatic stress disorder: There is clear evidence that he took time off work in 2011 for about nine months with a diagnosis of a major depressive episode and chronic post-dramatic stress disorder which resulted in treatment with a psychologist and antidepressant medication. Based on the information provided, there was an improvement in his mental state. He was unable to return to the Child Sex Abuse Unit at the time because there was not a position for him there, and thus he began working in general duties in Ballina, later working in general duties in Lismore. Thus, there is evidence that he suffered from a psychological and psychiatric condition previously, at least in 2011. For the period 20 February 2014 to 24 April 2014 there had been two significant stressors that had impacted him. He had ongoing difficulties with the separation from his wife, and they were dealing with dividing up their assets in dealing with their children. REDACTED. … It appears that he was suffering residual symptoms of an as yet unresolved depression and PTSD or suffering a chronic adjustment disorder with a depressed and anxious mood. Nonetheless he coped. In March 2015 REDACTED and a subsequent breakdown in his relationship with Ms E he suffered a relapse "in the major depressing and PTSD but reports significant recovery since". Having been diagnosed with a depressive condition and chronic post-dramatic stress disorder at least two occasions, even though he reports improvement in his mental state, he is at risk, of experiencing a relapse it is depression and post-dramatic stress symptoms if he returns to a work environment in the NSW Police Force that exposes him to significant trauma, REDACTED, but also other trauma. This, however, does not necessarily preclude his ability to work in an administrative role, in which he would not be exposed to trauma. His risk of relapse would be less, if he did not return to the NSW Police Force and works in an environment that does not expose him to human trauma. His risk of relapse would be less if he did not return to the NSW Police Force and works in environment that does not expose him to human trauma. 1. (2) Is he fit to return to work in the role of a constable or senior constable with the NSWPF? In particular: 1. to his former position in the Child Abuse Squad or, 2. in an alternative position in general duties? In response to this particular question, Dr Allnutt stated: I do not believe that, having relapsed (or had persistent fluctuating symptoms), of chronic post-traumatic stress disorder and a major depression, he would be fit to return to his former position in the Child Sexual Abuse Squad or alternative position in general duties because this would expose him to the same triggers that related to prior symptoms. Even though there has been improvement, I have concerns about his vulnerability to relapse. 1. (3) If the answer to (2) is affirmative what are the limitations to the role(s) that he can and cannot perform and if so what are these limitations? Dr Allnutt provided the following opinion: He has capacity to perform, in a role of less stress such as an administrative role that does not expose him to human trauma, particularly given his high level of motivation to return to the Police force. It may be that he could consider returning to more active duty after a further period of treatment and stability demonstrated during a period of working in a non-trauma related role in the NSW Police Force, but this would require a regular assessment by a psychologist and a demonstrated period of remission over a period to 6 months to a year in an administrative type role with ongoing psychological oversight – the prognosis in this regard is however relatively poor – he has a history of recurrence, there is close-response relationship with trauma (that is increasing vulnerability associated exposure to further trauma), and the nature of the trauma related to child abuse and general duties is severe. Psychological opinion Gina McMaster 1. Ms McMaster is a consulting psychologist who commenced treating the applicant in May 2015. At the request of the applicant's solicitors, she prepared a report dated 30 May 2018 concerning the applicant's mental health. An earlier report dated 5 November 2015 was also tendered without objection. 2. I have read these reports and associated documents. Given their particular nature, I do not propose to summarise them in any particular detail, much of which, like Dr Allnutt's opinion, are quite personal to the applicant it should not be exposed to the public domain. Parts of the report have been redacted consistent with the terms of the non-publication order set out above. 3. While the report noted that she was unable to provide a first-hand account of the applicant's mental health from 2010 to 2015, Ms McMaster stated that after reviewing the clinical notes of his nominated treating doctor together with a discussion with the applicant, there is no doubt in her mind that the applicant was suffering from post-traumatic stress syndrome and major depression during this period. 4. Ms McMaster observed that between 2010 and 2015, it was highly likely that the applicant continued to experience a range of symptoms such as diminished ability to think or concentrate clearly due to the compound in stress REDACTED. 5. Ms McMaster stated the applicant was initially referred to her for counselling for major depression and post-traumatic stress disorder. His scores for depression anxiety and stress were initially in the severe to extremely severe range. The applicant had completed 61 counselling sessions since May 2015. 6. Ms McMaster outlined the applicant's general history commencing with his childhood through to his suspension following the Everingham incident and his subsequent removal by the Commissioner. Ms McMaster also considered the applicant's capability to undertake Police duties in the event he was reinstated. 7. Ms McMaster stated the following in her 30 May 2018 report: In his first session Mr Pace expressed bewilderment, regret and remorse in relation to incidents that had occurred during the breakup of a significant relationship and disappointment at interactions he had experienced with Police since that time. He reported that he had a history of mental health concerns resulting from his work as a Police Officer REDACTED. Mr Pace lives independently in a house in Ballina. He has 50:50 shared care of his two daughters aged 7 and 11. Until recently he was employed by the NSW Police Force as a Detective Senior Constable. He had been placed on suspension as a result of an interim AVO for which all charges were later dismissed. He has been providing additional care to his children during this time. Mr Pace found it very challenging to not be working even though he was still under the employ of the NSW Police. Therefore, as part of his treatment strategy it was decided that he should find some part-time work. He decided to start a small business to provide him with structure and a sense of purpose while he was waiting for reinstatement at work. Structure and purpose remain essential to his mental health maintenance given his history of PTSD and Depression. It is also a way of managing current stressors by way of thought distraction, sense of achievement and provides an income for him and his family. Mr Pace reported to me that the customers that he has helped have been very appreciative of the quality of his work and the level of customer service. This demonstrates his ability to interact co-operatively and attend to customer's requests in a timely and effective manner which I assume would be essential criteria for a member of the NSWPF. 1. With respect to the applicant's current symptoms and diagnosis, Ms McMaster stated: In recent months Mr Pace has presented with symptoms associated with stress; these include difficulty sleeping, mild agitation, difficulty relaxing, and increased alcohol consumption. Mr Pace's employment with the NSWPF was terminated in December 2017 at which time he decided to seek reinstatement. It is understandable that he is been experiencing stress during this time and it is reasonable to assume that most people in his position would be experiencing the same. His DSM-V diagnosis remains consistent, Major Depression in full remission. 1. In relation to the applicant's current level of symptoms, Ms McMaster stated the symptoms he was currently experiencing were "related almost entirely to the current legal matter". She expressed the view that she had no doubt those symptoms will diminished significantly as soon as the matter is resolved. 2. Ms McMaster stated the applicant has adopted a number of strategies to manage his stress and had indicated he proposed to engage in "mental health maintenance" through regular counselling sessions and relevant personal development training. 3. In relation to the Everingham incident, the applicant has taken responsibility for his behaviour by enrolling in the MEND program. Moreover, the applicant has consistently accepted that what he did was wrong. 4. Ms McMaster considered the applicant's mental health concerns were initially related to his work in the NSWPF and REDACTED during the course of his work in child protection. She also considered the applicant had ongoing stress resulting from workplace conflict that occurred after he left the Child Protection Unit when as a Senior Detective, he was assigned to General Duties as part of his return to work plan. In that regard, Ms McMaster made the following observations: Mr Pace had successfully completed the Sergeant's transition program prior to going on stress leave. He was offered a Sergeant's promotion as the Aboriginal Lecturer at the Goulburn Police Academy for the IPROWD program (Indigenous Police Recruiting Our Way Delivery). While he was renegotiating the parenting plan so that he could accept the position, he was advised that he had been deselected due to return-to-work restrictions. Mr Pace said he was devastated to have lost this promotion. He was embarrassed and demoralised. While he was doing general duties he found it frustrating and demoralising that he was not assigned duties of his rank. He has described workplace conflict with particular colleagues whose communication was ambiguous and confusing which further added to his stress. Mr Pace also experienced a great deal of stress related to the breakdown of his marriage, REDACTED the termination of the relationship with Ms Everingham. REDACTED. The relationship with Ms Everingham was fundamentally flawed due to the power imbalance resulting from her superior position as a treating health professional. Ms Everingham was Mr Pace's exercise physiologist under the treatment plan for PTSD. As she was providing treatment related to PTSD, she should have been aware of Mr Pace's vulnerability and sensitivity, yet she entered into a sexual relationship which contributed to the ending of his marriage. To withdraw from the relationship with him REDACTED was an action lacking in both compassion and insight. This would have caused Mr Pace an overwhelming amount of distress REDACTED. Mr Pace would have been well within his rights to lodge a formal complaint against Ms Everingham to her accreditation body. However, he declined to do so as he did not wish to cause her further distress. 1. Against the backdrop that the applicant was seeking reinstatement to his former position in the Sexual Assault Unit, Ms McMaster stated the applicant was not suffering from any current psychological disorder and there was no psychological impediment to his reinstatement: The results of the PAI indicate that Mr Pace is not suffering from any psychological disorders at this point in time. He is extremely committed to returning to his work as a Police Officer despite the way he has been treated by some of his colleagues and superiors. This is evidenced by this current appeal and his undertaking of the Bachelor of Policing and Investigation at his own expense while he was waiting for reinstatement. By undertaking higher education he has also demonstrated his ability to learn and produce academic materials. He has put his study on hold while he is waiting for the outcome of this hearing. He is highly committed to working as a Mentor for Police Officers who identify as Indigenous. I am not trained in the selection of Police personnel however it is my opinion that there are no psychological barriers to Mr Pace being reinstated to work he has previously been employed in. Mr Pace also has a deeper understanding of his vulnerabilities, how to maintain his resilience and when to seek assistance from others. 1. Ms McMaster stated that during counselling sessions, the applicant has continually expressed remorse and extreme disappointment in his behaviour towards Ms Everingham. He initially found it difficult to understand her actions but now has much greater insight into interpersonal relationships. At times, the applicant has struggled to find compassion for himself "believing it was his errors in judgement when he was mentally unwell that have caused so much distress and disruption to the people he loves as well as his own life". 2. Ms McMaster further stated that the applicant was now acutely aware of the need for timely and accurate record keeping as well as the importance of adhering to best practice policing. If reinstated, the applicant proposed to continue his Bachelor of Policing studies. He is also committed to maintaining his mental health by continuing to engage in counselling and attending mindfulness groups. 3. In cross-examination, Ms McMaster stated the content of her report was chiefly based on the observations and tests which she had previously conducted during counselling sessions with the applicant together with certain material that she had read from the applicant's other treating practitioners. 4. The majority of the 61 consultations referred to in her report concerned the applicant's claim for workers compensation, with one consultation sought to provide evidence concerning the interim AVO application and a number of others concerning his mental health care plan. 5. Ms McMaster confirmed that in preparing her report, she had read the show cause Notice, the applicant's Response, the Commissioner's Reasons documents and the Removal Order. Ms McMaster stated she did not undertake any specific examination, test or investigation prior to expressing her opinion. Rather, Ms McMaster based her report on the DASS 21 screening tool for depression, anxiety and stress which she regularly used with clients and two Personal Assessment Inventory (PAI) assessments undertaken with the applicant in February 2016 and May 2018. The following exchange ensued: Q. Now, did you do any other research by reference to academic material or anything of a similar nature in forming your opinions which are contained in your reports? A. No. I didn't feel that was necessary, given the extensive range of documents that had been provided to me beforehand. I trust implicitly in the doctor's ability to be monitoring her patient. So she referred him to me. He had also been treated by a colleague of mine, Michael De Sartori for several years for post-traumatic stress and depression. He was a clinical psychologist, so I would trust very much in his diagnosis. When I started seeing Mr Pace, he no longer I believe was (suffering) post-traumatic stress. It was mainly major depression, which was what was written on the doctor's recommendation. I believe he'd also been assessed by Dr Pearson but I can't recall entirely the psychiatric history. Q. So it'd be fair to say that you've based at least your understanding of Mr Pace's mental state on the two tests you've just identified but also based on reports that you received from other experts— A. Yes. 1. Ms McMaster agreed that one of the reasons behind the request for her report concerned the applicant's capability to undertake Police duties in the event he was reinstated. 2. It was Ms McMaster's evidence that a PAI identifies a person's psychological condition at a particular point in time and does not diagnose any potential risk of relapse in the future. 3. With reference to the 6 November 2015 report Ms McMaster provided to the applicant's solicitors concerning his criminal charges arising from the Everingham incident, the following exchange ensued: Q. Okay, that's all right. And in your report, just go to page 5, you provide a summary as to your observations and you say at the time that Mr Pace was charged with the criminal offences, and I pause there to say he wasn't found guilty because he was discharged under the Mental Health Act: "He was under extreme stress and suffering from a major depressive disorder. The symptoms he was experiencing are directly attributable REDACTED and the separation from his partner," that's right? A. Yes. Q. So you were attributing Mr Pace's mental state to chiefly those two issues, REDACTED and his separation from Ms Everingham. That's so? A. REDACTED. Q. But those were the two causative factors which resulted in him suffering from the symptoms associated with major depressive disorder, that's so? A. Just let me think for a moment, please. That was at the time of the incident, so he was already suffering from major depression REDACTED. Q. And would it be fair to say that there have been several episodes of major depressive disorder or PTSD which Mr Pace has experienced since about 2010/2011? A. I'm not so sure about the PTSD. Often PTSD and major depression are comorbid, meaning they occur at the same time. So I imagine that's what - he was discharged from care to be able to return to work and then I think things started to build up again for him once he got back to work REDACTED and that investigation and possibly also that his work environment may not have been as supportive as it might. Q. So would it be accurate to say there have been fluctuating symptoms associated with major depressive disorder which have occurred between 2011 and the time of the report at 2015? A. Yes. Q. And they fluctuated depending on a whole range of circumstances, including the particular traumatic events such as the break-up of his relationship with Ms Everingham REDACTED. A. Yes. Q. As well as other work issues which you've described? A. Yes. 1. Ms McMaster stated that the applicant had, on several occasions, indicated his "earnest desire" to return to a role with the NSWPF. However, where a patient's personal objective was not in their best interests, she would try and counsel them towards a different direction. The following exchange ensued: Q. In determining whether or not it's in their best interests, you would need to ascertain the nature of the job and the particular exposure that person might have to stressors or traumatic events which might trigger a relapse. Would you agree? A. Yes. Q. And that means coming to a proper understanding of the nature and role of being a Police Officer? A. That's right. Q. I think you agreed with me beforehand you have had no experience in advising or expressing opinions about whether or not Police Officers with particular conditions are capable of performing their role as a Police Officer. Would you agree? A. I haven't had to report - write reports to that effect. 1. Ms McMaster agreed with the proposition that from her reading and observations, there is a suggestion that the applicant may have had both major depressive disorder and PTSD, both serious psychiatric illnesses between 2010 and 2015. She also agreed with proposition that in determining the risk of relapse, one consideration would be the risk in terms of exposure to stressors or traumatic events which might trigger a relapse. 2. In relation to her report concerning the applicant's capability to undertake Police duties in the event he was reinstated, Ms McMaster confirmed she was "not trained in the selection of Police personnel" and she was unaware of the particular requirements of being a Police Officer other than what she had observed and heard talking to patients and friends. The following exchange ensued: Q. And you say, "However it is my opinion that there are no psychological barriers to Mr Pace being reinstated to work he had previously been employed in". Just pausing there. When you say reinstated to work he had been previously employed in, you certainly understand from your discussions with Mr Pace, he had been previously employed in the Child Abuse Squad? A. It was very clear in all documentation that he was never to return to that squad. Q. Right, so when you say to Mr Pace being reinstated to the work he had previously been employed in, what you're not referring to there is the job of working in the Child Abuse Squad? A. That's right. Q. So can I take it then that reinstatement to the work he'd been previously employed in was not the substantive role but some other role as a Police Officer? A. Yes. Q. Okay? A. And I would also assume that if he were reinstated there would be some sort of appropriate return to work program and consultation around what work was appropriate for him. But he no longer had a mental illness, so there's no reason to preclude him from employment. 1. Counsel for the Commissioner referred Ms McMaster to Dr Allnutt's report dated 18 September 2018 and the three specific questions he was asked to address relevant to the applicant's reinstatement. Subsequent cross-examination dealt with Dr Allnutt's answers to those questions, commencing with Question 1: (Q1) If Mr Pace has suffered from a psychological or psychiatric condition previously, is the possibility of a relapse increased he was to return to the NSWPF (relative to if he did not return)? (A1) Having been diagnosed with a depressive condition and chronic post-dramatic stress disorder at least two occasions, even though he reports improvement in his mental state, he is at risk, of experiencing a relapse it is depression and post-dramatic stress symptoms if he returns to a work environment in the NSW Police Force that exposes him to significant trauma, REDACTED, This, however, does not necessarily preclude his ability to work in an administrative role, in which he would not be exposed to trauma. His risk of relapse would be less, if he did not return to the NSW Police Force and works in an environment that does not expose him to human trauma. 1. Ms McMaster accepted the applicant had been diagnosed with major depressive illness and chronic PTSD on at least one occasion. In relation to Dr Allnutt's prognosis that the applicant was at risk of experiencing a relapse is depression and PTSD if he returns to a work environment that exposes him to significant trauma, the following exchange ensued: Q. So would it be fair to say therefore PTSD is only diagnosable if the symptoms are chronic and persistent over a period of time? A. Yes, thank you. Q. And that period of time could vary, but could be up to six months? A. Yes. At least. Q. But the manifestation of the chronic and persistent symptoms can be immediate such as acute stress which may be suffered at any particular time by an individual who has previously had a PTSD or major depressive illness? A. Yes and it's also a natural reaction. So if you and I were both exposed to the same trauma, we might not sleep well tonight, we might have flashbacks of the event. It doesn't mean - that's a natural thing that our brain does. Not everybody's brain does it, but that's one of the things that the brain does immediately after a trauma and some brains bounce back and other brains don't. Q. But the ability for someone's brain to bounce back is reduced or compromised if that individual has had PTSD and/or major depressive illness previously? A. Statistically, yes, but not everyone. Q. Now, I think you say you agree with me as a general proposition the points which have been made here by Dr Allnutt, correct? A. Yes, that's right. Q. But you can't say with any assuredness that it has an application to any particular individual because it depends on those individual circumstances, correct? A. That's correct. Q. Now, if you go to the last sentence in part (a) of the report Dr Allnutt says, "His risk of relapse would be less if he did not return to the NSW Police Force and works in an environment that does not expose him to human trauma." Do you see that? A. Yes. Q. You would agree with that proposition? A. Yeah, it's a statistical proposition. 1. With reference to the second question that Dr Allnutt was required to determine: (Q2) Is he fit to return to work on the role of a constable or senior constable with the NSWPF? In particular: 1. to his former position in the Child Abuse Squad or, 2. in an alternative position in general duties? (A2) I do not believe that, having relapsed (or had persistent fluctuating symptoms), of chronic post-traumatic stress disorder and a major depression, he would be fit to return to his former position in the Child Sexual Abuse Squad or alternative position in general duties because this would expose him to the same triggers that related to prior symptoms. Even though there has been improvement, I have concerns about his vulnerability to relapse. Ms McMaster agreed with the proposition that the applicant was not fit to return to his former position in the Child Abuse Squad. The following exchange ensued: Q. Now, you don't address in your report whether or not Mr Pace is capable of returning to work in general duties as that term is used in this report, do you agree? A. That's right. Q. And in fact would it be fair to say your appreciation of what's involved in the general duties of a Police Officer is, as you identified earlier, based on anecdotal evidence, correct? A. Well, I haven't seen a job description. It would be reported to me by other Police Officers who I'm seeing for treatment who have major depression, anxiety or post-traumatic stress disorder. They also tell me about their duties. 1. In relation to Dr Allnutt's A2 response above, Ms McMaster stated she was unable to determine whether the applicant's return to an alternative position in general duties "would expose him to the same triggers" without a specific list of general policing duties. 2. Ms McMaster was subsequently referred to a document provided to Dr Allnutt setting out the inherent requirements and typical duties of a Police Officer prepared by the Australia New Zealand Policing Advisory Agency. She agreed that the following duties may involve Police Officers typically being exposed to stressful and traumatic events: * provision of emergency response management and coordination; * dealing with incidents where there might be guns used; * diffusing potentially volatile situations with due regard for the safety of all involved; * acting with sensitivity when dealing with situations such as delivering news of a sudden death of family or when dealing with a sexual crime; * conducting arrests in accordance with common-law legislative requirements; preparing crime reports and presenting case files to senior officers and courts concerning say, a quite violent crime; * attending and giving evidence in court including the giving of evidence about particular files or dramatic events; and * attending road related incidents, including fatal accidents, investigating vehicle collisions and conducting tests and detecting other impaired drivers. 1. Ms McMaster later agreed that Police Officers were typically required to attend distressing events such as scenes of deceased persons and incidents of domestic violence. They were also exposed to verbal abuse and physical aggression. 2. With reference to that part of her report which stated "there are no psychological barriers to Mr Pace being reinstated" and, "he has a deep understanding of his vulnerabilities", Ms McMaster agreed with the proposition that she had not addressed the potential risk of relapse. The following exchange ensued: Q. If Mr Pace is simply reinstated to a role which involves general duties, based on the material which I have taken you through earlier about the nature of the duties which are performed and the potential exposure to traumatic stressors which may occur very quickly, do you accept if he was returned to a general duties role there would be, all things being equal, a higher risk of relapse of PTSD and/or major depressive illness? A. Yes, of course there is, like every other Police Officer on the force who's had depression. Q. Given that you did not address the question of relapse - let me put this a different way, so I'll ask the question again. There is nowhere else in your report where you deal with the risk of relapse? A. No, I haven't discussed it. 1. Ms McMaster confirmed that she was aware there were 11 allegations made against the applicant and she had read the Commissioner's Reasons document. Those allegations were also raised and the applicant's account of them was explained to her by him during his counselling sessions. She acknowledged the variance between the applicant's recollection and the Commissioner's Reasons for his removal. 2. Ms McMaster agreed with the proposition that matters which may trigger a relapse, or exacerbate the applicant's pre-existing vulnerability, or lead to a relapse of the conditions of PTSD or major depressive disorder must be avoided: Q. … Would you agree that where there is evidence of fluctuating clinical course, that is a pattern of remission and relapse demonstrated in an individual of PTSD or major depressive illness the symptoms which may cause that relapse can be either specific or non-specific in nature? A. Yes. Q. And in your experience the nature of those triggers can be variable and it's hard to pinpoint what triggers need to be avoided to ensure a relapse doesn't occur? A. I think it's - yes and also there are some things that you know are absolutely going to trigger which is why Dr Allnutt has said, you know, no return to child protection squad. Q. And equally because there are some non-specific environmental cues which may trigger relapse it's impossible to rule out— A. Absolutely. … Q. So if Mr Pace is reinstated, even with all good intentions by eliminating or minimising his risk to obvious triggers to relapse such as traumatic events, because of the inherent unpredictability in the nature of Police duties you could not rule out that there might be other triggers which may exacerbate his pre-existing vulnerability or lead to a relapse of the conditions of PTSD or major depressive disorder? A. Yes just like any other Police Officer on the force at the moment who has a mental health issue. 1. Ms Everingham agreed that as a general proposition, a person would be lacking insight if they were not able to accept responsibility for their conduct, acknowledge the wrongdoing and show they had learnt a lesson from the conduct. She was aware of the applicant's response to the allegations from the materials provided to her prior to writing her report, 2. In response to a line of questions concerning the applicant's response to the allegations, which comprise the combination of acceptance, denial or downplay of their seriousness, Ms McMaster stated she believed the applicant understood their seriousness but with respect to some, "he has a right to argue because perhaps they weren't accurate". She further agreed that the fact the applicant had learned a series of behaviours to regulate his emotions does not mean he has an insight into the conduct which led to his removal. She considered "the two are not connected". 3. In relation to the Everingham incident, Ms McMaster accepted the allegations were serious. Ms McMaster was informed that the applicant now denied elements of Allegation 10 and in that regard, she considered the change in his story may demonstrate a lack of insight into his conduct. Submissions 1. In addition to those submissions set out above made with respect to the various Allegations put against the applicant, additional general and specific submissions were put to the Commission by the applicant and the Commissioner. Applicant 1. The applicant submits his removal was harsh. The allegations are serious, some more so than others. The applicant deserves a second chance. He has made some serious errors of judgement while "labouring under mental illness". For his part, the applicant has never sought to rely upon his psychological illness as an excuse for his conduct. Rather, it was an explanation for and it mitigates the seriousness of his conduct. 2. In relation to Allegations 10 and 11 which deal with the Everingham incident, the applicant submitted that the charges that followed were dismissed under s 32 of the Mental Health (Forensic Procedures) Act. 3. In cross-examination, the applicant was steadfast, honest and forthright. He made appropriate concessions and demonstrated insight into his conduct. With the benefit of psychological treatment and a clear mind, the applicant's conduct that gave rise to his removal "was clearly at odds with the man he truly is and the Police Officer he was". 4. In assessing the applicant's integrity, the Commission should have regard to the evidence that supports the applicant's good character. The character witness support the applicant received is remarkable. Those witnesses were all both serving or former Police Officers and two were very senior and highly decorated Police Officers. 5. None of the character witnesses condone what the applicant did and nor should or could they. The Applicant does not say his conduct was not serious. The character witnesses took account of the incredible personal strains impacting on the applicant at the time. It is submitted those personal strains were likewise taken into account by the Local Court when it determined to deal with the applicant under the Mental Health (Forensic Procedures) Act rather than in accordance with the criminal law. 6. The applicant's character witness evidence does not support: … a man who would create a false COPS entries to cover up his conduct, or would give false evidence about his conduct towards Ms Everingham. 1. The applicant submitted the Commission has previously considered the issue of character evidence and the extent to which it might inform the Commission. In that regard, the applicant sought to rely on the decision of Commissioner Newall in Treddinick v Commissioner of Police [2016] NSWIRComm 1026 where at [46] – [47], the Commissioner referring to earlier Commission authorities observed: 46. It should here be said that evidence about the character of an officer, including his own evidence, is not, in applications for review under s.181, to be treated as some kind of secondary evidence to which regard is had only when considering penalty. On the contrary, what is generally described as 'character' evidence is, particularly if an officer's integrity is as here in issue, to be taken into account in assessing the probability of the facts in issue: Lawrance v Commissioner of Police [2010] NSWIRComm 149 at [313], unaffected on appeal; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 458. 47. This approach is, as counsel for Mr Tredinnick submitted, consistent with the principle espoused – albeit in a criminal case – by the High Court in Attwood v. R (1960) 102 CLR 353: evidence of good character is regarded as really bearing on the probability or improbability of guilt'. (at 359). In my view that principle is consistent with Lawrance and Toshack and is properly applicable in matters of this kind. 1. The applicant submitted passage from Toshack v Commissioner of Police [2009] NSWIRComm 31 referred to by Commissioner Newall above in Treddinick is a reference to paragraph [69] where the Full Bench observed: 69 Character evidence of Police Officers that may be led in support of an officer who has been removed under s181D of the Police Act will undoubtedly be relevant to the question of what relief may be ordered where the removal is found to be harsh, unreasonable or unjust. It may also be relevant, depending upon the circumstances of a particular case, to the question of whether the removal was harsh, unreasonable or unjust. Where a person's integrity is being assessed it will involve questions about his or her character. The Commissioner of Police may take one view about a person's integrity but there is no reason why the Commission, in undertaking the type of review that is required under Division 1C of Part 9 of the Police Act, may not have regard to evidence indicating a contrary or divergent view to that of the Commissioner in deciding whether the removal was harsh, unreasonable or unjust. 1. The applicant further submitted that the Full Bench in Toshack ultimately determined at [73] "whether character evidence is a material consideration in a consideration of whether the dismissal was harsh, unjust or unreasonable will depend on the facts of each case". 2. The Commission should place significant weight on the applicant's character when assessing the his evidence generally and in particular, when assessing his account in relation to Allegations 10 against the evidence of Ms Everingham, her parents and Ms McDonald in circumstances where they were not called by the Commissioner and the applicant was unable to test their accounts of the incident. 3. Given the applicant's good conduct post the Everingham incident, the Commission should find it is reasonable to conclude that the applicant will not reoffend. He continues to seek counselling and support from Ms McMaster and attends MEND and weekly mindfulness sessions. The applicant has also expressed remorse for his conduct. 4. The consequences of the applicant's removal are dire. He is a single father with two young daughters. He earned approximately $100,000 per annum with the NSWPF and post removal, his income has been has been dramatically reduced as has his level of job security and superannuation benefits. 5. The applicant has made a significant contribution to policing particularly in the difficult child abuse area. That contribution has been echoed by his character evidence and the number of awards received and complementary remarks made during the course of his employment. The applicant is more than capable of rendering valuable service to the NSWPF if reinstated. In that regard, the Commission was directed to the decision in Commissioner of Police v Donlan, Commissioner of Police v Hanson [1995] NSWCA 468 per Clarke JA (with whom Handley JA agreed) at [17]: On the other hand GREAT placed much emphasis on the answer to the question whether the respondents were capable of rendering valuable Police service if allowed to remain in the force. In considering that question GREAT gave weight to the respondents' previous records, the expressions of opinion of senior Police Officers and their community reputation. Having done that GREAT concluded that the respondents were capable of rendering valuable service in the future and for that reason thought that the respondents should have the opportunity to continue in the force. 1. The Commission is required to determine whether the applicant's removal was harsh, unjust or unreasonable. The Commission is required to undertake a fresh and independent review of the decision based on the reasons and materials relied upon by the Commissioner and any new evidence submitted. 2. The Commission may agree with the findings of the Commissioner and dismiss the application or, make a different finding and subsequent order. 3. The statutory test whether a given removal was harsh, unreasonable or unjust is different to the s84 unfair dismissal test because under s181E of the Police Act, the Commission must give consideration to those matters set out in s181F(3)(b), which the Commission in under s 84 of does not have to consider in addressing that question. Moreover, the Commission must have regard to a "public interest" test which is partly defined under s181F(2)(ii) as distinct from the "public interest" of the Industrial Relations Act: Commissioner of Police v Eaton (2013) 87 ALJR 267; 294 ALR 608 at [27] per Heydon J. 4. The applicant submitted matters which weigh heavily in his favour when assessing whether removal was harsh include: * The loss of a promising and stable career in the NSWPF; * The avoidance of a reduction in income and consequential financial hardship; * The loss of a career based on conduct engaged in at a time when the applicant was very mentally unwell; * The smear associated with being an officer dismissed under s181D of the Police Act on loss of confidence grounds and the damage to his reputation; * The psychological illnesses that arose from his employment due to the "soul destroying work" in the CAS receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities; and * REDACTED. Allegation 10 1. The applicant denies that he changed his position in relation to two aspects of the Everingham Allegations. The Commission should not accept there has been a change: During cross-examination, the Applicant denied specific aspects of Allegation 10. However, the Applicant's denials of those aspects only came about through cross-examination by the Respondent's Counsel. It is submitted therefore that the introduction of the alleged "change in position" was a forensic decision made by the Respondent for which the Commission could take no adverse view against the Applicant. 1. It does not follow, as the Commissioner may submit, that this change demonstrates "a lack of reliability" on the part of the applicant. In his Response, the applicant addressed the Everingham Allegations by stating were dealt with by the Local Court under the Mental Health (Forensic Provisions) Act. The applicant repeatedly urged the Commissioner to consider the Local Court's determination. Clearly, the applicant's denial of specific aspects of the Everingham Allegations was due to the way the Commissioner cross-examined him and had nothing to do with any lack of reliability as suggested. 2. The applicant remained steadfast in the face of extensive cross-examination where his position concerning the incident was made clear: * He did not act in a threatening, abusive and intimidatory manner towards Ms Everingham; * He did not verbally abuse Ms Everingham causing her to be in fear for her safety; * He did not prevent Ms Everingham from entering her workplace; * He did not bang on Ms Everingham's car window; and * He did not lean into Ms Everingham's car and attempt to grab her car keys. 1. In cross-examination, the applicant continued to deny there has ever been any "threats of violence, intimidation or breaches by me" consistent with his Response to the Commissioner at paragraph [131]. In relation to that particular submission, the applicant submitted: Once the Respondent elected to cross-examine on the specifics of the Everingham allegations and put the versions of Ms Everingham and others (the Everingham witnesses) to the applicant if the Respondent is going to rely on those versions and make a submission those versions should be preferred over the applicant it might have been expected those witnesses would have been called by the Respondent. They were not. On that basis, it is submitted the evidence of the applicant about those allegations should be preferred over any untested account put to the applicant during cross-examination. There was an adjournment of some months between from July 2018 and October 2018 when (sic) if the Respondent considered himself prejudiced or taken by surprise by what the applicant said during cross-examination (despite what the applicant said in his Response at paragraph 122 and 131 extracted above) the Respondent could have called the Everingham witnesses. The Respondent did not. By failing to call the Everingham witnesses, it is submitted the Commission may draw a 'Jones v Dunkel inference' that the Everingham witnesses would not have assisted the Respondent's case. 1. There was ample time for the Commissioner to call the Everingham witnesses. The failure to call them has prejudiced the applicant particularly in circumstances where the Commissioner may press that the Commission should make an adverse finding concerning the applicant's truthfulness. In that regard, absent the applicant's ability to test the Everingham witness evidence, their untested version of events should not be accepted and the Commission should not make any adverse finding against the Applicant. 2. Moreover, any submission the applicant lacks insight into his conduct in relation to the Everingham Allegations or that he was less than frank in his Response should be rejected in the absence of those witnesses not being called. Glenn Campbell COPS Entry 1. The allegation that the applicant knowingly made a false entry cannot be made out on the civil standard of proof. Accordingly, the Commission should not find the applicant lacks integrity "in the light of the COPS Entry he made in the Glen Campbell matter". The correct approach to NSWPF policies and their application 1. The applicant accepts and has always accepted that he failed in the performance of his duty, which of itself does not warrant his removal. In that regard, Commissioner Newall observed in Morris v Commissioner of Police [2016] NSWIRComm 1034: [112] It is not every failure of duty that gives rise to removal. It is not every error of judgment that gives rise to removal. It is not every breach of the Regulation that gives rise to removal. Each matter is to be assessed on its own facts and circumstances. [113] As it was held in Toshack v Commissioner of Police (2009) 181 IR 420: It has been said, however, in various ways, that the requirement of a Police Officer to act with integrity does not constitute an absolute test of the officer's suitability to remain in the Force. See, for example, Alexander v Commissioner of Police [2009] NSWIRComm 3 at [48]; Raymond Sewell v New South Wales Police Force. 1990 [2008] NSWIRComm 93 at [131]. Application by Raymond Sewell for review of an order under s 181E of the Police Act. That must be so, in our opinion, otherwise the whole system of review under Division 1C of Pt 9 of the Police Act would be otiose. Similarly, the Commissioner may promulgate from time to time codes of conduct or ethics or statements of value which may act as a 'touchstone' of the integrity of the officer. However, as Haylen J pointed out in Sewell v NSW Police Force (as approved in Commissioner of Police v Sewell [2008] NSWIRComm 147 at [20]), such codes "should not be treated as a monolith but should be treated as blueprints with layers indicating what should be the behaviour of Police Officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review". (at [46]-[47]) 1. The applicant submitted that in determining this matter, the Commission should give strong consideration to the mitigating circumstances relied upon and conclude his removal for contravening the relevant NSWPF Policies and Regulations was harsh. Other matters Delay 1. The conduct and events that caused the applicant's removal occurred between March 2014 and March 2015. The applicant provided his Commander with his response to the Investigator's Report on 26 July 2016. The s181D Notice was dated 19 July 2017 and the applicant was ultimately removed by way of Order on 11 December 2017. The extraordinary delay in removing the applicant at a time he was suffering mental health issues adds to the overall harshness and unfairness of his removal. 2. In Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51 at [17] and [18], Sams DP made the following observations concerning delays occasioned during an investigation: [17] Notwithstanding expressions of concern, I, and other members of the Commission, have made about delays in the internal investigation process of the Police Force, such delays continue, and are almost the norm, in such cases. As I said in Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176 at [87]: [87] Finally, I would also express my concern with the time it took from the incident on 18 January 2007 to the decision of Superintendent McErlain to revoke the Leading Senior Constable status on 18 June 2007. After all, SC Sharman's formal interview was only a few days after the incident. While I accept that a thorough and rigorous inquiry is necessary in any investigation of an officer's misconduct (obviously, so as to avoid any allegation of procedural unfairness), it is difficult to comprehend why a matter of this kind took six months from interview to decision. An unreasonable delay may draw a similar complaint of unfairness as it would if an allegation of misconduct was not properly investigated. There may be extenuating circumstances, of course. I am unsure if there were in this case. Nevertheless, I raise this matter as another example, of the concern the Commission has expressed on other occasions about delays in internal disciplinary investigations within the New South Wales Police Force. [18] His Honour, Boland J, President, said in Burrows v Commissioner of Police at paras [167] to [169]: [167] The fact that it takes five months from the time when a removal recommendation is made to when a Notice is issued is hardly consistent with a legislative scheme that purportedly allows the Service to "quickly free itself" of those who fail to meet proper standards. [168] I note the comment in the Second Reading Speech that Police Officers are to be regarded as being on a similar footing to other employees under the Industrial Relations Act. If an employee in the private sector had to wait eight months between the time he or she was interviewed about some alleged misconduct and the time he or she was eventually dismissed and, in the meantime, the employee continued in employment as though nothing had happened, it would be a rare case indeed that the dismissal would be found to have been justified. [169] In Owens v New South Wales Police Service (1998) 87 IR 1 Schmidt J found "there was an inordinate delay in the question of Mr Owens' continued employment being dealt with by the Police service, during which period Mr Owens continued to work as a Police Officer in a most commendable manner". The delay extended over a period of some 16 months. This delay, coupled with deficiencies associated with the process leading to the applicant's removal, led Schmidt J to find that the dismissal was harsh. Her Honour ordered five months' compensation to be paid to the applicant. 1. In relation to delay, the applicant submitted that whilst not a determinative factor, it is a further factor which adds the overall harshness of his removal Relief sought 1. The Applicant submitted that if the Commission does not reinstate him, it may substitute another lesser penalty, such as a reduction in increment, in respect of his misconduct and/or may decline to order back pay in respect of the time since his removal from the NSWPF. Should back pay be awarded, the applicant understood it would be reduced by any amounts earned by him during the intervening period. 2. Notwithstanding a response in cross-examination that he did not wish to return to duty within Child Abuse Squad, the applicant sought to be reinstated to his former position as a Detective Senior Constable within that Squad with continuity of service. 3. Ms McMaster in cross-examination agreed in general terms with Dr Allnutt. that there would be a risk of re-occurrence of PTSD by the applicant if he was to return to full operational duties. Ms McMaster contended the same risk exists for all Police Officers who are currently performing active duty and have been diagnosed with mental health issues. 4. The applicant further submitted the possibility that he might suffer a recurrence of PTSD if he was to attend a traumatic accident was not a matter which prevents the Commission from ordering reinstatement. 5. In conclusion, the applicant submitted he made errors of judgement at a time when he was labouring under mental illness caused in part by performing duties as a Police Officer in the Child Abuse Squad. He has and continues to receive ongoing support and treatment for that mental illness and is now far better equipped to deal with the stressors that he may encounter if reinstated. Commissioner of Police 1. The legal onus in these proceedings is placed on the applicant to establish that his removal was harsh, unjust or unreasonable: Tredinnick at [54] and [61]. 2. The Commissioner submitted the applicant had not discharged his onus of proving that his removal from the NSWPF was harsh, unreasonable or unjust. Accordingly, his application for review should be dismissed. 3. The Commissioner submitted he has lost confidence in the applicant on the grounds of his conduct and integrity. In that regard, the Commissioner also submitted that "integrity" has a wider meaning than honesty: Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25 at [317]. 4. The applicant was removed because the Commissioner did not have confidence in his suitability to continue to be a Police Officer on the grounds of his conduct and integrity. He admitted the serious allegations levelled against him other than one. In the course of cross-examination, the applicant decided to withdraw his admission that he had engaged in verbal abuse and intimidation of Ms Everingham. No evidence was put to support that change other than his bald denial. 5. The applicant has failed to meet the high standards of conduct and integrity expected of Police Officers by the community and his conduct has brought the reputation of the NSWPF into disrepute. The importance of these matters is reflected in the nature of the mission, functions and values of the NSWPF: Police Act 1990 (NSW), ss 6, 7, 8. 6. The Commissioner submitted the Statement of Reasons is not created in a vacuum but rather is the endpoint of a structured process. In making an order under ss181D(1) and (4), the Commissioner must afford the Police Officer the opportunity to make written submissions in response to the proposed action and grounds for removal. The Commissioner must take into consideration any such written submissions. Accordingly, the Statement of Reasons is a statutory statement reflecting the Commissioner's reasons for deciding to impose an order having regard to the Police Officer's submissions in response to the Notice to show cause. 7. The statutory process which ultimately leads to the Statement of Reasons does not permit a party to present an inconsistent case or give inconsistent evidence to the case presented as part of the show cause process. Such a course would have the effect of seriously undermining the validity and efficacy of the statutory process and therefore, the Commissioner's decision-making. Moreover, the statutory regime is predicated on the Police Officer being afforded the opportunity to provide a full and frank response to the allegations made. 8. The Commissioner submitted the Statement of Reasons facilitates the conduct of the review: It indicates that the Commission must give presumptive primacy to the respondent's justification for the removal of the Police Officer concerned and the statutory process followed in making this decision. It is apparent from the Statement of Reasons that the respondent took into account the applicant's admissions to having engaged in misconduct. The presentation of each parties' cases under ss 181F(1)(b) and (c) is regulated by the making of directions by the Commission. In accordance with the ordinary course for programming matters, on 20 February 2018, the Commission made directions for Mr Pace to file and serve any evidence he wished to rely upon in his case and that the Respondent file and serve any evidence he wished to rely upon in reply to Mr Pace's case. On 6 April 2018, Mr Pace filed and served his own statement dated 4 June 2018 and a number of character references. Mr Pace had already attached a number of documents to his Application for Relief under s 181E of the Police Act 1990 (NSW) including the Show Cause Notice, the Response and the Statement of Reasons. On 11 May 2018, the respondent filed and served his evidence in response to the case put forward by the applicant. On 5 April 2018, Mr Pace filed and served his statement in reply. On 25 June 2018, (Mr Pace) also sought, and was granted, leave to rely upon the report of Ms Gina McMaster dated 30 May 2018. Section 181F(1) does not permit the Commission to deviate from the strict sequence contained therein in conducting its review. It is apparent, however, that (Mr Pace) has sought impermissibly to depart from this sequence by seeking to fundamentally alter his evidentiary case by relying upon new evidence which he had not presented as part of his case during the review, and which only emerged for the first time during cross-examination (contrary to the case presented in his filed evidence). In so doing, Mr Pace has also not complied with the requirements of s 181G(1)(f) by either giving notice of an intention to adduce new evidence or by obtaining leave of the Commission. 1. The Commissioner submitted the applicant's change of position encapsulates his lack of integrity. The applicant is not entitled – and ought even if not barred, be permitted to depart from his case as presented in relation to Allegation 9 and the first two sub paragraphs of Allegation 10. 2. However, assuming that the applicant is allowed to change his case in relation to Allegations 9 and 10, the Commissioner contends that the applicant has not adduced sufficient evidence to discharge his onus under s 181F(2) in any event. Although the applicant submits that the first sub paragraph of Allegation 10 is in dispute, no evidence was led by him other than his oral evidence in cross-examination challenging this sub-paragraph. 3. In other words, no positive evidence has been advanced by the applicant on this point and no justification has been presented to explain the departure from his original admissions. Moreover, absent any positive case, the applicant cannot discharge his onus in respect of that part of Allegation 10 and accordingly, his conduct in respect of that part of Allegation 10 must be sustained. Therefore, it is only the events that occurred around 6.30pm on 26 March 2015 that are in dispute. 4. Put alternatively, the applicant cannot with respect to Allegations 9 and 10, discharge his burden through a bald denial of the misconduct. To do so would be to ignore the specific statutory regime in Part 9 of the Police Act. 5. The Commissioner further submitted that given the starting point of the review presumes that the Commissioner's Reasons for removal are justified, the regime has the effect of requiring an applicant to prove that the removal was unjust, that is, the applicant did not engage in the misconduct. It would therefore be inconsistent with s 181F(1) and (2) if a bald denial, with nothing more, was sufficient to establish the required legal standard that the misconduct did not occur. 6. Clearly, in order for the evidentiary burden to shift to the Commissioner, the applicant the must call evidence in support of his denial which sufficiently casts doubt upon the Commissioner's Reasons. It is also clear that the applicant has engaged in conduct which demonstrated: 1. a lack of basic diligence, timeliness, professionalism and competence in the performance of important general policing duties, including compliance with relevant legislation, the Statement of Values, the Code of Conduct and Ethics, guides, handbooks, and standard operating procedures and policies; 2. he had violated the fundamental rights of citizens by: 1. unlawfully arresting and detaining Mr Campbell in custody without authority; 2. charging Mr Vickery in the absence of critical evidence based on an alleged belief that Mr Vickery had admitted to being a "habitual liar" (no evidence of which exists) and a "gut feeling" uncorroborated by any evidence; and 3. threatening, abusing and intimidating Ms Everingham when she arrived at Ballina Police Station to make a complaint of domestic violence against him. 1. a lack of integrity by creating a false COPS record in a number of key respects and 'back flipping' on his admission that he had engaged in threatening, abusive and intimidating behaviour towards Ms Everingham. 1. The applicant submits that his removal on the basis of those allegations put against him was harsh. 2. The Commissioner found that the applicant had demonstrated an ongoing lack of compliance with various policies and procedures of the NSWPF as well as a pattern of failures to comply with his own obligations and responsibilities as a sworn officer. In this regard, the Commissioner had a heightened concern that the applicant showed a lack of regard to the seriousness of these failures. 3. The Commissioner ultimately determined the applicant's behaviour described in the Allegations contravened: 1. ss 7(a), 7(b), 7(c), 7(e) and 7(h) of the Police Act 1990; 2. the Police Regulation 2008; 3. the Crimes (Domestic and Personal) Violence Act 2007; 4. the Crimes Act 1900; 5. the NSW Police Force Code of Conduct and Ethics; 6. the Brief Preparation Guide; 7. the NSW Police Force COPS User Guide; 8. the Crime Recording Standard Policy; 9. the Law Enforcement (Powers and Responsibilities) Act 2005; 10. the Law Enforcement (Powers and Responsibilities) Regulation 2005; 11. the Code of Practice for CRIME; 12. the Conflict of Interest Policy; and 13. the NSW Police Force Handbook. 1. In relation to Allegations 1 to 4, the Commissioner was concerned the applicant did not take any responsibility for his actions, sought to lay the entirety of the blame for the failure to prepare the brief on Constable Pagano, a junior officer in rank and demonstrated a lack of insight regarding the insufficient evidence to lay the charge against Mr Vickery. Conduct of this kind was also evident in the manner in which the applicant conducted this hearing. 2. The Commissioner found the applicant had no excuse for his failure to adhere to Standard Operating Procedures, entering the matter into COPS immediately or obtaining statements from the victims prior to interviewing the accused. The Commissioner was concerned about the applicant's lack of understanding or acknowledgement concerning compliance with basic procedures. 3. It is unsurprising the Commissioner was concerned by this particular behaviour, given how essential it is that all Police Officers comply with such basic obligations, particularly given the inexplicability of such failures in circumstances where the applicant was an experienced Senior Constable with more than a decade of service who infrequently relieved as a Sergeant. 4. The Commissioner was particularly concerned about the applicant's lack of knowledge concerning powers of arrest and reiterated his expectations that all sworn officers must have clear knowledge of their powers and only arrest someone if they have cause to do so. Again, these concerns are entirely unsurprising and cannot seriously be disputed, given the fundamental impact the exercise of such powers has on the rights and freedoms of citizens. 5. The Commissioner was satisfied that the applicant falsified a COPS Event and that the reasoning he provided for the untimely entry was a further attempt to give his conduct legitimacy that demonstrated a lack of insight and remorse. This resulted in the Commissioner not having confidence that the applicant has the required candour or integrity to be a sworn officer of the NSWPF. The Commissioner further submitted this conclusion has been reinforced by the applicant in his evidence before this Commission. 6. The Commissioner was satisfied that the applicant's conduct in relation to Ms Everingham was not acceptable and affects the integrity and reputation of the NSWPF. Further, the applicant's interference with the investigation and Police interview was unprofessional and designed to intimidate Ms Everingham in circumstances where he was engaged to perform duties for an organisation which devotes significant time and resources to combatting domestic violence. Such conduct was inimical to his sworn oath of office. 7. In relation to the Everingham incident and the applicant's "backflip" made in cross-examination, the Commissioner submitted the change itself demonstrates the applicant's lack of reliability and trustworthiness as a witness. It is also another example of his lack of integrity. 8. In cross-examination, the applicant at first accepted that the contents of the statements of Ms Everingham, her parents and Ms Macdonald were true.. The applicant's acknowledgement of his wrongdoing concerning Allegation 10 in cross-examination was consistent with his Response where he stated he understood its "seriousness". In his Response, the applicant admitted that the incidents comprising Allegation 10 had, in fact, occurred. He also attested his Response represented a truthful response. 9. Moreover, the Commissioner submitted the applicant has not presented an adequate explanation for recanting his admissions. He initially claimed the he "didn't know how to address it" but then acknowledged that he could have simply set out his account of what occurred in hid Response which he did not do. Put simply, the applicant's unexplained backflip on a critical aspect of his case means his recent denial of Allegation 10 cannot be believed. To the contrary, the applicant's dissembling answers in cross-examination and his multiple inconsistent statements in this regard demonstrate that his evidence is inherently unreliable and his recent denials therefore ought not be accepted. 10. The Commissioner further submitted the lack of reliability of the applicant's evidence is reinforced by his own acknowledgement that his recollection of events on 26 March 2015 was "unclear". For example, the applicant's evidence was that he had no recollection of putting his foot against the door to prevent Ms Everingham from entering Riverside Gym contrary to the CCTV footage. It is implausible that the applicant had a clear recollection of events on 26 March 2015 in circumstances where his recollection of critical events did not match the objective evidence of what occurred. 11. The applicant has an obligation as a sworn Police Officer to answer questions truthfully. The Commissioner submitted the applicant must have either lied in his Response and written statements or to the Commission during cross-examination when he withdrew his admissions. Both versions cannot be true. 12. The Commissioner submitted that in one sense, which account is true does not really matter. The applicant's inconsistency underscores the fact that he does not have a proper appreciation of his obligations as a Police Officer. Moreover, nothing the applicant has said on this point can be taken at face value because he has not presented a single consistent and plausible narrative from the start. Accordingly, Allegation 10 should be sustained. Further, the Commissioner's version of events in respect of Allegation 9 and 10 must be accepted. Harshness 1. The Commissioner submitted the applicant's contentions that his removal was harsh, unjust or unreasonable on a number of grounds REDACTED. Those grounds, including issues arising whilst a Police Officer, his mental health condition, acceptance of his wrongdoing and remorse and contrition for his conduct should be rejected. 2. Similarly, the applicant's submissions that the Commission should accept his previous good service and positive character witness evidence together with the fact that he was now a single father with two daughters and the economic impact of his removal was severe should also be rejected. 3. The Commissioner submitted the consideration of harshness must be undertaken within the statutory context of the Police Act and s181F in particular, rather than the tests required under the Industrial Relations Act 1996. 4. The Commissioner referred to the decision of Walton VP as he then was in Lawrance v Commissioner of Police [2010] NSWIRComm 149 at [25] to support the proposition that in assessing harshness, the grounds of harshness that might be found under Part 6 of Chapter 2 of the Industrial Relations Act might not be necessarily so concluded in proceedings under Division 1C of the Police Act because of the public interest requirement concerning "the maintenance of the integrity of the Police Service". 5. In relation to Allegations 1-4, the applicant's improper charging of Mr Vickery with a criminal offence demonstrated a serious lack of understanding and compliance with several NSWPF policies and procedures. It is of course extremely important for all Police Officers to follow policies and procedures so as to ensure the NSWPF is compliant with its legislative requirements and its reputation remains intact. 6. The most serious allegations concerned the unlawful arrest of Mr Campbell and the domestic violence incident involving Ms Everingham. 7. The unlawful arrest of Mr Campbell could have resulted in a common law malicious prosecution and/or unlawful arrest claim involving significant damages. The applicant's contention that he was not aware of his powers of arrest under the Law Enforcement (Powers and Responsibilities) Act is an extraordinary submission from an officer of his seniority and length of service. 8. The ability to detain a person of their liberty is a significant power afforded to Police Officers and must only be used in accordance with law. In this case, the arrest of Mr Campbell without lawful authority and his subsequent failure to create a custody record for him at all (with a view to concealing his unlawful arrest), is misconduct so serious that it is incomprehensible for the Commissioner to have trust and confidence in him as a Police Officer. Further, the falsification of a COPS Entry demonstrates the applicant's severe lack of integrity that is inconsistent with his role as a Police Officer. 9. The domestic violence incidents with Ms Everingham are very serious and such behaviour severely affects the integrity and reputation of the NSWPF which regularly takes steps to address domestic violence related crime. The applicant's behaviour is inimical to his role as a Police Officer sworn to prevent such criminal activity. 10. The applicant rightly admitted during cross-examination the wrong-doing and serious nature of the Everingham Allegations. However, this admission stands at odds with his response to the s181D(3)(a) Notice and the investigation of his misconduct where he sought to downplay the gravity of his behaviour. 11. Further, in cross-examination, the applicant changed his answers or was not willing to admit to certain allegations that had previously been admitted. For example, in relation to Mr Vickery, the applicant first stated that he did not believe Mr Vickery because in his interview with Constable Pagano and himself, Mr Vickery said he was a "habitual liar". 12. However later in cross-examination, after it was brought to his attention that this comment was not recorded in the record of transcript with Mr Vickery, the applicant changes his version of events, saying his disbelief of Mr Vickery was based on a "gut feeling". This change is a further example of the applicant dissembling and illustrates how inappropriate it was for the applicant to charge Mr Vickery, being a decision based on a "gut feeling" rather than factual evidence. 13. In relation to Mr Attfield, the applicant refused to admit that the reporting of the misappropriation of funds by telephone was a fraud matter and that he did not provide Mr Attfield with the option either to attend a Police Station or receive in the mail a Fraud Assessment Pack. Moreover, in spite of admitting that he had not complied with standard operating procedures, the applicant refused to concede he had acted inappropriately at all until pressed in cross-examination. 14. When the applicant was questioned about fingerprinting Mr Campbell and the fact that he could not be fingerprinted unless it was in relation to an offence, his response was that he made enquiries and this was "clearly not" part of his basic Police training. 15. The Commissioner was aware of the applicant's background and issues encountered whilst being a member of the NSWPF and took those matters into consideration when deciding whether or not to remove him. The Commissioner weighed those matters against the applicant's misconduct and subsequently found that he had still lost trust and confidence in him as a Police Officer. 16. It was the applicant's case that he suffered from mental health conditions. He sought to rely on those conditions as an explanation for his misconduct comprising Allegations 10 and 11. However, there is no expert medical evidence before the Commission stating the applicant was suffering from any mental or psychological illness at the time of the Allegations generally or Allegations 10 and 11 specifically. 17. While the Commissioner took into account the applicant's background and history of mental health, there is no evidence that these matters caused or contributed to any of the conduct of his Allegations and therefore should not be a significant factor in favour of harshness. 18. In her Report, Ms McMaster states the applicant would have been suffering from PTSD or Major Depression between 2010 and 2015. However, in cross-examination, Ms McMaster acknowledged that she had not formed any independent view on this issue and she just read this in "other material". 19. Moreover, Ms McMaster's clinical notes reveal she began treating the applicant in May 2015 – after the incidents giving rise to Allegations 10 and 11. The Commissioner submitted that at no stage has Ms McMaster stated that any alleged mental health issues the applicant may have suffered from has caused or contributed to his conduct which ultimately gave rise to the Allegations put against him. 20. Dr Allnutt's opinion set out in his Report does not state that the applicant was suffering from a mental illness at the time of the Allegations. Nor does Dr Allnutt say if the applicant had a mental illness, it caused any of the conduct described in the Allegations. 21. In relation to the applicant's submission that he has shown remorse and contrition into his conduct and has accepted his wrongdoing, the Commissioner submitted this must be objectively demonstrable remorse and contrition and the acceptance of responsibility: Lawrance. 22. Further, the Commission must differentiate between regret and remorse. In particular, where there is a failure on the part of the applicant to recognise the full scope of his failure to act with integrity, such as through a lack of insight, he is only showing regret and not remorse: Carlin v Commissioner of Police [2018] NSWIRComm 1057 at 243. 23. To the contrary, Mr Pace does not accept responsibility for all Allegations, nor does he show "demonstrable remorse or contrition" in relation to all Allegations. Ms McMaster was specifically asked to express an opinion on the applicant's insight into the Allegations which led to his removal. Ms McMaster's Report states that the applicant had expressed remorse and disappointment in relation to his behaviour directed to Ms Everingham. However, nothing in the Report addresses whether the applicant had expressed remorse in relation to the other Allegations. 24. Moreover, a review of the clinical notes of Ms McMaster's counselling sessions with the applicant shows that she did not record anything about the applicant discussing with her "the nature and detail of the remaining Allegations, let alone, expressing remorse". 25. The Commissioner submitted Ms McMaster did not receive the letter of instructions dated 27 April 2018 attaching the Statement of Reasons until sometime in May 2018 and did not have a counselling session with the applicant after receiving those documents.. Accordingly, Ms McMaster would not have had the opportunity to speak to the applicant about the specific matters contained in the Statement of Reasons and whether he had remorse for the remaining misconduct. 26. In determining the applicant had shown a lack of remorse, the Commissioner also determined he had shown a lack of insight into his conduct. 27. In cross-examination, Ms McMaster noted that in order to show remorse, the applicant had to demonstrate a proper appreciation of the nature and seriousness of his misconduct and accept responsibility for it. She further acknowledged that the applicant in his Response sought to downplay and diminish the seriousness of the Allegations. 28. The Commissioner expressed concern that the applicant considered the Allegations were not serious enough to warrant his removal: Allegation 1 It was the applicant's evidence there was sufficient prima facie evidence regarding the charge of being knowingly carried in a stolen conveyance and that it is not unusual for Police to charge offenders at the time of initial investigation with multiple offences, matters are withdrawn from Court regularly for many reasons and in turn became a failed prosecution. Allegation 2 In saying that he gave Constable Pagano a 'rev up' about not obtaining witness statements whilst he was on sick leave and that Constable Pagano was the Officer in Charge of the investigation, the applicant seems to blame Constable Pagano for the lack of investigation. The applicant also states that he was absent from the workplace on 62 days between 20 February 2014 and 31 May 2014 and was otherwise very unwell and suffering from a psychological illness. Allegation 3 The applicant alleged that he had several conversations with the Police Prosecutor, Ms Rachel Thomas and was advised that a brief was not required. Allegation 4 The applicant states that when he returned from sick leave, he read a COPS dissemination that requested a brief to be prepared. Notwithstanding the COPS system reflects this, the applicant does not recall reading the dissemination and contended Constable Pagano remained as the Officer in Charge. Allegation 5 The applicant states that Mr Attfield attempted to report the fraud to various Sydney Police Stations, all of which could have provided him with a fraud pack. In any event, NSW Fair Trading had said they would take over the investigation and interview witnesses. Allegations 6 and 7 The applicant states that Mr Campbell committed an offence by being intoxicated in a public place. The applicant was not satisfied that Mr Campbell was who he said he was and for the safety of Mr Campbell and the SPAR personnel, Mr Campbell was conveyed to Ballina Police Station.. It was the applicant's evidence that no statements were required from any party. 1. The Commissioner submitted the above submissions and responses from the applicant show a complete lack of insight into the seriousness of his misconduct and on some occasions, "not at all accepting responsibility of his of his misconduct". They essentially reflect his s181D Response. The applicant's dissembling and justification for his conduct are disconnected from the admissions made and show a complete lack of insight into the seriousness of his misconduct and on some occasions, not accepting any responsibility, particularly given he was a Detective Senior Constable with 17 years' experience with the NSWPF. 2. The Commissioner further submitted the applicant cannot: … without more, admit conduct, concede it is serious and then dissemble on the facts and circumstances and seek to inculpate his colleagues. Further, Mr Pace cannot, without risk of the Commission drawing adverse inferences against him, dissemble on (otherwise admitted) facts and circumstances in the witness box. 1. The applicant's cross-examination demonstrates both a lack of insight and his expressions of remorse should be viewed as expressions of convenience. His remorse is related to the position in which he now finds himself as a result of his removal and not regret for the conduct that gave rise to his removal. The applicant fails to take responsibility for his conduct in relation to all the Allegations and submits that in any event, they are not serious enough to warrant his removal. 2. The Commission should accept that the applicant's evidence provides no comfort or confidence that he understands his wrongdoing and could comply with appropriate procedures in the future. Even where the applicant has a positive work history and character references, the Commission is still required to weigh this against the conduct that occurred: Vouden at [533]. 3. The Commissioner referred to the decision in Klazidis v Commissioner of Police [2016] NSWIRComm 1014 at [40] to support the proposition that caution must be exercised against placing too much weight on the evidence of loyal friends and colleagues. In that regard, the Commissioner submitted that little weight can be assigned to character evidence from the distant past from former work colleagues and friends who did not have any involvement in the allegations that gave rise to the applicant's removal. 4. The Commission should note that the applicant's character witnesses acknowledged that the allegations sustained in the s181D order were very serious in nature and the senior Police Officers who gave character evidence on behalf the applicant unequivocally condemned his conduct. 5. In cross-examination, Detective Superintendent Howlett stated that she was "shocked" by Mr Pace's conduct declaring that it was "totally and utterly unacceptable" and "absolutely horrific". She also expressed in forceful terms that had the applicant "been working for me at the time, I probably would have slapped him down and pulled him (into line)". 6. Similarly, the evidence of former Detective Superintendent Rustja was that the matters contained in the s 181D notice caused her "a lot of concern". She also considered that given the applicant's conduct, she believed it was "a step too far" for him return to an operational general duties role. Mitigation 1. In terms of mitigation, the applicant has submitted he has lost the level of income, job security and superannuation benefits as a Police Officer, is a single father and has deferred his University studies. In that regard, the Commissioner submitted that what is relevant is the applicant's financial consequences and economic future: Lawrence at [26(c)]. The applicant earned approximately $55,000 in the first six months of 2018 carrying out a business called Pacey's Maintenance Services. Accordingly, he has not completely lost the level of income he enjoyed prior to his removal when his earnings were approximately $100,000. The Commissioner submitted the fact that the applicant has skills to enable him to continue employment outside the NSWPF "counts against the harshness of the removal". Public interest 1. The Commissioner submitted that public interest considerations weigh heavily against overturning the Commissioner's Order. 2. In determining this matter, the Commission is expressly required to have regard to the public interest which is taken to include the interest of maintaining the integrity of the NSWPF. It is essential that a Police Officer acts with integrity in all times, both on and off duty. A Police Officer must also uphold the law both on and off duty. The expression "integrity" as it appears in the Police Act, includes concepts of both personal integrity of the individual officer and institutional integrity of the NSWPF. 3. The Commissioner submitted personal integrity includes consideration of whether the officer is a person of sound moral principle and character which may involve questions of honesty, uprightness and sincerity: Toshack v Commissioner of Police 181 IR 420 at [44] to [49]. The Commissioner's reasons for making the order may include questions of personal integrity as is the case here. 4. The Commissioner further submitted the applicant has not acted with integrity and has repeatedly engaged in misconduct, attempted to conceal his own behaviour and otherwise shown a lack of insight into the seriousness of his misconduct. Simply stated, he has sought to elevate his personal interests over his obligations to the NSWPF and members the public. Such conduct is inimical to that expected of a NSW Police Officer. 5. Section 181E review proceedings also require the Commission to consider, pursuant to section 181F(3), institutional integrity, namely "the interest of maintaining the integrity of the NSW Police Force". This should be understood as including any issues of integrity that arise with respect to the order for removal of the particular officer: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458, Spigelman CJ (Macfarlan and Young JJA agreed) at 469 [72]. Furthermore, as observed 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. It follows that in the circumstances of this particular case, the public interest in maintaining the integrity of the NSWPF is met by the applicant's removal as a Police Officer being upheld by the Commission. 1. The Commissioner also submitted the applicant has failed to demonstrate sufficient insight into his misconduct that would satisfy the Commission that should he be returned to operational policing duties, he would not make the same poor judgements and mistakes or breach critical NSWPF policies. Moreover, the Commission should be concerned that it is not in the public interest that a person be returned to the NSWPF in circumstances where there is a risk a former officer will become compromised again: Paul Gardiner and Commissioner of Police [2009] NSWIRComm 84 at [146]. 2. The Commissioner also submitted the Commission must weigh the arguments regarding harshness against the proven misconduct and public interests of the NSW Police Force: Vouden at [610]. Accordingly, the applicant's REDACTED history of mental health, positive work history and good character evidence must be weighed against the proven Allegations and the public interest. Relief sought 1. The applicant seeks reinstatement to his former position of Detective Senior Constable. However, the relief sought by the applicant has never been clear to the Commissioner until he filed his written submissions at the conclusion of the arbitrated case. This is particularly so in circumstances where the applicant: (a) conceded in cross-examination that he could not be reinstated; and (b) failed to respond, through his solicitors, to correspondence from the Commissioner's solicitors dated 26 September 2018 … asking him to clarify, in light of his evidentiary concession above, and in view of the evidence of Dr Allnutt, if he was seeking compensation in view of the clear medical evidence that he was unfit to perform policing duties. 1. Curiously, notwithstanding both (a) and (b) above, the applicant now submits that he seeks reinstatement to his substantive role in the Child Abuse Squad. Putting aside that he is not entitled to relief in consequence of his removal not being harsh, unjust or unreasonable, even if the Commission were to conclude otherwise, it cannot be seriously disputed that reinstatement is impracticable and should not be granted as a remedy. The applicant's position is incontrovertible on the evidence. Impracticability of reinstatement 1. The fitness of the applicant must be considered as a factor when determining whether or not reinstatement is practicable. Shortly stated, if a person is not fit to perform work in accordance with a reinstatement order, then such an order is impracticable. 2. The Commissioner submitted the evidence "establishes a clear impracticability of reinstatement". The unchallenged evidence of Dr Allnutt was that the applicant is not fit to perform the role of Detective Senior Constable either in the Child Abuse Squad or in general duties because the risk of a relapse in his mental health "is too significant", particularly given his previous history. 3. Dr Allnutt states that the applicant "would be diagnosed with recurrent depressive disorder and recurrent chronic post-traumatic stress disorder" and that he would be "at risk, of experiencing a relapse in his depression and post-traumatic stress symptoms if he returns to a work environment in the NSWPF that exposes him to significant trauma, REDACTED but also other trauma." Dr Allnutt concludes: His risk of relapse would be less if he did not return to the NSW Police Force and works in an environment that does not expose him to human trauma. 1. Moreover, Dr Allnutt considers the applicant is not fit to return to his former position in the Child Sexual Abuse squad or any alternative position in general duties because he would be exposed to the same triggers that were related to his previous symptoms. 2. Dr Allnutt was not required by the applicant for cross-examination. Accordingly, Dr Allnutt's medical opinion must be taken to be evidence the applicant accepts without qualification. 3. The Commissioner further submitted that Dr Allnutt's conclusion was not inconsistent with the evidence given by Ms McMaster in cross-examination. Notwithstanding Ms McMaster's Report stating the applicant was fit, she qualified that statement cross-examination by first stating she had no expert knowledge of the requirements of the role of a Police Officer and secondly, in the course of the following exchange: Q. And you say, "However it is my opinion that there are no psychological barriers to Mr Pace being reinstated to work he had previously been employed in". Just pausing there. When you say reinstated to work he had been previously employed in, you certainly understand for your discussions with Mr Pace, he had been previously employed in the Child Abuse Squad? A. It was very clear in all documentation that he was never to return to that squad Q. Right, so when you say to Mr Pace being reinstated to the work he had previously been employed in, what you're not referring to there is the job of working in the Child Abuse Squad? A. That's right. Q. So can I take it then that reinstatement to the work he'd been previously employed in was not the substantive role but some other role as a Police Officer? A. Yes. Q. Okay? A. And I would also assume that if he were reinstated there would be some sort of appropriate return to work program and consultation around what work was appropriate for him. But he no longer had a mental illness, so there's no reason to preclude him from employment. 1. Ms McMaster also expressed an opinion in cross-examination that the applicant would be subject to risk of relapse if he is further exposed to significant trauma. The following exchange ensued: Now, pausing there, there's nothing there which you disagree with, would you reproaches agree, that if he is returning to a work environment that exposes Mr Pace to significant trauma, there is a risk of relapse? A. Yes, but what this doesn't identify is how much that risk is. … Q. Now, if you go to the last sentence in part (a) of the report Dr Allnutt says, "His risk of relapse would be less if he did not return to the NSW Police Force and works in an environment that does not expose him to human trauma." Do you see that? A. Yes. Q. You would agree with that proposition? A. Yeah, it's a statistical proposition. 1. Ms McMaster also agreed with the proposition that given the nature of Police duties, the applicant would, all things being equal, be subjected to an equal or higher risk of relapse of PTSD and/or major depressive illness if he was reinstated to a role which involved general duties: Q. If Mr Pace is simply reinstated to a role which involves general duties, based on the material which I have taken you through earlier about the nature of the duties which are performed and the potential exposure to traumatic stressors which may occur very quickly, do you accept if he was returned to a general duties role there would be, all things being equal, a higher risk of relapse of PTSD and/or major depressive illness? A. Yes, of course there is, like every other Police Officer on the force who's had depression. … Q. So if Mr Pace is reinstated, even with all good intentions by eliminating or minimising his risk to obvious triggers to relapse such as traumatic events, because of the inherent unpredictability in the nature of Police duties you could not rule out that there might be other triggers which may exacerbate his pre-existing vulnerability or lead to a relapse of the conditions of PTSD or major depressive disorder? A. Yes just like any other Police Officer on the force at the moment who has a mental health issue. 1. The Commissioner submitted Ms McMaster's opinion was that the applicant is not currently able to perform the full range of duties and responsibilities of the position he was performing prior to his removal, namely, a general duties Police Officer attached to the Child Abuse Squad. In that regard, Ms McMaster's opinion is entirely consistent with the evidence of Dr Allnutt who concluded that the applicant is not presently fit to return to policing duties in any capacity – a conclusion that the applicant accepts, notwithstanding his submissions make it clear that he is seeking reinstatement. 2. Ms McMaster's opinion is also consistent with the character evidence of former Detective Superintendent Rustja who opined that given the applicant's deficiencies in performing basic general duties, it was not appropriate that he return to a general duties operational role. 3. The evidence before the Commission concerning reinstatement is clear. It is impracticable to restore the status quo ante in circumstances where the applicant is not fit to perform the duties of the position he occupied as at the date of his removal. 4. Following the reasoning of the High Court in Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; 118 FCR 395; 113 IR 461, it is necessary for the Commission to consider whether, if an order for reinstatement is made, the Commissioner is able to comply with that order. 5. In the particular circumstances of this case, neither party could practically comply with a reinstatement order, as it would place both parties in contravention of the respective statutory duties they owe, leaving both parties in the untenable position of deciding whether to act in contravention of an order of this Commission, or in contravention of their statutory duties. Such a possibility highlights the impracticability of a reinstatement order. The Commissioner further submitted: The impracticability can be further illustrated by way of hypothetical. If Mr Pace is reinstated to the position of Detective Senior Constable attached to the Child Abuse Squad, but performing general duties, based on the medical evidence adduced in these proceedings (including by Mr Pace himself), it is apparent that Mr Pace will be unfit to perform work in that position. That would enliven the Commissioner's powers under s. 94B of the Police Act, permitting the Commissioner to terminate the employment again by way of medical discharge. Mr Pace would not be entitled to seek review of any such dismissal from this Commission: Cottle v Commissioner of Police [2017] NSWIRComm 1055 Mr Pace would then find himself back in precisely the same position in which he presently finds himself. This underscores the very impracticability of ordering reinstatement. 1. The Commission should not ignore the objective evidence in the form of independent and unchallenged medical evidence that the applicant is unfit to perform the duties of a Police Officer. Reinstatement is clearly impracticable and no such order by way of relief should be made. The Commissioner further submitted that in the circumstances of this particular case, reemployment is equally not available and is an inappropriate remedy on the following grounds: 1. The unchallenged medical evidence of Dr Allnutt is that the applicant cannot perform policing duties and if he does so, he faces a risk of relapse in respect of his mental health. In that regard, Ms McMaster's evidence is of no assistance as she concedes she has no knowledge of the duties or roles that a Police Officer may be fit to perform. Dr Allnutt's evidence conclusively determines that Ms McMaster would not be able to do so; and 2. The applicant has led no evidence at all about any alternative positions that are available and suitable for reemployment. It was open to the applicant to summons this information and he did not do so. Accordingly, there is no evidence whatsoever before the Commission of any alternative positions available and suitable in which the applicant could be redeployed. In the absence of suitable evidence, the Commission is unable to make any such order. Compensation 1. The Commissioner submitted it was open for the Commission to award compensation to the applicant. In terms of quantum, the Commissioner submitted s89(5) of the Industrial Relations Act 1996 limits compensation to an amount not exceeding six months' salary. In determining compensation, the Commission must consider the applicant's attempts to find alternative employment and any remuneration so earned. 2. The Commissioner noted the applicant had sought to mitigate his loss through self-employment and the evidence before the Commission was that in the first six months of self-employment, his income was equal to or exceeded that which he would have earned as a Police Officer. Hence, compensation if awarded should be at the lower end of the scale. Reinstatement or re-employment with alternative disciplinary action? 1. The applicant's submission that he be reinstated with some alternative disciplinary action must be rejected on the grounds that the Commission is not empowered to make such an order. The Commissioner is the only person with the statutory authority to impose disciplinary action on Police Officers. If, however and contrary to the above, the Commission determines the applicant's removal is harsh and he is reinstated or re-employed, it would then be open for the Commissioner to take disciplinary action against him under s. 173 of the Police Act in respect of his admitted and proven misconduct. 2. Moreover, s181G(1)(d) of the Police Act makes it clear that section 89 of the Industrial Relations Act applies to these proceedings (subject to modification that is inconsequential for present purposes). That provision sets out the orders that the Commission can make exhaustively. It does not permit reinstatement subject to particular conditions, and in particular, it does not permit reinstatement subject to a further order that the Commissioner, in effect, impose alternative disciplinary action in consequence of the misconduct. Commissioner's Conclusion 1. The reliability of the applicant and the confidence which must necessarily be bestowed upon him in the course of his duties is such that his misconduct has destroyed the relationship of trust and confidence of the Commissioner. This is the kind of case which falls within the discretion considered by the Full Federal Court in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192. 2. On the evidence, the Commissioner submitted the applicant has plainly engaged in serious misconduct. Despite having had an extensive period of time to reflect on his behaviour, it is apparent that the applicant still does not accept that his behaviour was improper or inappropriate in any way. His conduct, together with his deliberate or at least negligent disregard for his obligations as a member of the NSWPF to adhere with policy and the law will undermine public confidence if he is reinstated. 3. The Commissioner further submitted the applicant's attempts to put his own interests above his obligations as a Police Officer are illustrative of his unsuitability to serve the community as a sworn officer. His conduct has brought the reputation of the NSWPF into disrepute. The Commissioner submitted the application should be dismissed. Consideration 1. In determining this matter, I have considered the severity of the penalty inflicted on the applicant for his misconduct having regard to relevant mitigating circumstances, including his personal and economic circumstances. Legislative matrix 1. Section 181(F)(1)(a) of the Police Act requires the Commission to consider the Commissioner's Reasons for the applicant's removal, which are set out in the Statement of Reasons that accompanied the Order dated and served on 11 December 2017. The Statement sets out four incidents covering 11 allegations that occurred between February 2014 and March 2015. I have considered the Commissioner's Reasons. 2. The onus then falls the applicant to make out a case that the Commissioner's decision to remove him was harsh, unreasonable or unjust as required by s 181F(1)(b) of the Police Act. I have considered the applicant's case. 3. Finally, the Commission is required to consider the case presented by the Commissioner in answer to the applicant's case as required by s 181F(1)(c). I have considered the case presented by the Commissioner in answer to the applicant's case. Allegation findings 1. Following consideration of the Commissioner's Reasons, the applicant's case that his removal was harsh, unreasonable or unjust and the case presented by the Commissioner in answer to the applicant's case, I make the following findings: 1. Vickery allegations Allegation 1 On 20 February 2014, the applicant should not have charged Mr Vickery with an offence under s154A(1)(b) of the Crimes Act 1900 given the lack of evidence available to him at that time. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to s 7 of the Police Act and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics. Allegation 2 Between 20 February 2014, when the applicant arrested and charged Mr Vickery, and 31 May 2014, when he commenced a period of leave, the applicant failed to adequately investigate the offence in regards to whether or not, on 20 February 2014, Mr Vickery knew that the conveyance he was being transported in was stolen. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990, Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1, and the NSW Police Force Handbook. 1. Allegations 1 and 2 are sustained. There is no evidence to support the proposition that Mr Vickery had knowledge that the Volkswagen Passat had been stolen and that he had been knowingly carried in a stolen vehicle. On the material before the Commission, there was sufficient time between 20 February and 31 May 2014 for the applicant to properly investigate whether or not on 20 February 2014 Mr Vickery knew the vehicle that he was travelling in had been stolen. 2. In his investigation interview, the applicant acknowledged Mr Vickery had provided him with information that corroborated his version of events. His contention that Mr Vickery was "a habitual liar" has no evidentiary basis and in any event, is no excuse for not conducting a proper investigation. 3. The circumstances related to Allegation 1 had the capacity to cause the NSWPF severe reputational damage. Public trust and confidence in the NSWPF is a critical factor in the administration of justice. 4. The applicant's conduct in relation to Allegations 1 and 2 was in breach of subsection 7(e) of the Police Act (strives for citizen and Police personal satisfaction) and 7(h) (ensures that authority is exercised responsibly). 5. Further, his conduct also represents a breach of the NSW Police Force Code of Conduct and Ethics (Point 2 – act with care and diligence when on duty and Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties). Allegation 3 Between 18 April 2014 and 31 May 2014, the applicant took no steps to prepare the criminal brief of evidence against Mr Vickery, despite his obligation to do so and his being on notice of his obligation to do so. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990 and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. There also appear to be grounds on which it could be concluded that your conduct was contrary to the Brief Preparation Guide, and the NSW Police Force Handbook. Allegation 4 There appear to be reasonable grounds on which it could be concluded, and the balance of probabilities, all over regard to the seriousness of the allegation, that between 1 August 2014 and 17 October 2014, you failed to adequately finalise the criminal brief of evidence against Mr Vickery. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990 and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1, and the Brief Preparation Guide and the NSW Police Force Handbook, is set out above in relation to Allegation 3. 1. Allegations 3 and 4 are sustained. In determining these particular allegations, I prefer the evidence of Constable Pagano that the applicant resumed the role of OIC when he returned from sick leave on 1 August 2014, over that of the applicant. I have also considered the evidence of Senior Constable Kennedy, including her Godfrey Report. I also prefer the evidence of Senior Constable Kennedy over that of the applicant. 2. It is clear on the material before the Commission that between 18 April and 31 May 2014 when he commenced a period of sick leave, the applicant was required to take the necessary steps to prepare the requisite brief of evidence. The applicant should have been alert to the fact there was a chance that Mr Vickery may change his plea as he is entitled to do under the criminal justice system. 3. The applicant had prepared the charges against Mr Vickery on 3 March 2014. He listed himself on the relevant documentation as the OIC. Upon the applicant's return from sick leave on 1 August 2014, Sergeant Woolf directed Constable Pagano to return the relevant case file to the applicant through the internal mail system. On the material before the Commission, it is clear that the applicant became the OIC once more from 1 August 2014. 4. On the evidence before the Commission, the applicant sent an email to Mr Vickery's solicitor on 1 October 2014. It must follow that on the balance of probability, the applicant was aware and accepted that from at least that date, that he was now the OIC once more. A copy of the email was also sent to Constable Pagano. 5. Any doubt as to whether the applicant was the OIC for the purposes of the Vickery brief was dispelled when the applicant submitted an email request to be rostered for Local Court duties on 17 October 2014, the day of the scheduled Vickery hearing. Yet, between his return to work on 1 August and the 17 October 2014 hearing date, the applicant took no action to finalise the criminal brief against Mr Vickery. There is no medical evidence to support the proposition that the applicant was not fit for work at this time. 6. The applicant's conduct in relation to both Allegations 3 and 4 was also in breach of subsection 7(e) of the Police Act (strives for citizen and Police personal satisfaction) and 7(h) (ensures that authority is exercised responsibly). His conduct also represents a breach of the NSW Police Force Code of Conduct and Ethics (Point 2 – act with care and diligence when on duty and Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties). 7. Having read the NSW Police Brief Preparation Guide, and the NSW Police Force Handbook, the applicant's failings are an obvious breach of the Brief Preparation Guide and the Police Handbook. 8. A primary role of policing includes the gathering of evidence, information or statements obtained from witnesses and suspects during the course of a particular investigation. 9. Relevant to this matter, the Brief Preparation Guide is a comprehensive document which provides Police Officers with the procedures to be adopted by Police when dealing with statements, brief preparation and court procedure. The Brief Preparation Guide specifically focuses upon Police obligations set out in the Criminal Procedure Act 1986, Local Court Rules 2009, the Evidence Act 1995, the Crimes (Sentencing Procedure) Act 1999 and other documents such as the Police Handbook together with various Standard Operating Procedures developed by the NSWPF. The Brief Preparation Guide also deals with failed prosecutions. 10. The Brief Preparation Guide relevantly states: All Police involved in a matter are required to prepare a statement. It is the responsibility of the officer in charge of the matter to ensure that these statements are prepared and incorporated in the brief of evidence. A statement should be made while an event is fresh and a person's memory, at the time or soon after the event; meaning, within days not weeks. Accordingly, statements should always be made at the earliest possible opportunity after the incident occurred. 1. Sadly, the applicant's conduct in failing to initiate a criminal brief of evidence between 18 April and 31 May 2014, a period of more than six weeks prior to him commencing sick leave, shows scant regard to the requirements of "good policing" and professionalism which the Brief Preparation Guide is designed to promote. In the event he was unable to prepare the brief during this time consistent with the requirements of the Brief Preparation Guide, the applicant should have approached a senior officer. 2. The brief of evidence must contain statements from all people involved in the particular matter and contain admissible evidence dealing with all the elements of the alleged offence. The Brief Preparation Guide also warns Police Officers that a Court will generally expect a brief evidence to be completed and served four weeks after a plea of not guilty is entered. 3. The Brief Preparation Guide also sets out the various responsibilities of the Officer in Charge of a case. 4. The Police Handbook is also a comprehensive reference document which deals with a multitude of issues and mandatory procedures that a Police Officer may encounter on a daily basis. Clear guidelines for the protection of detained persons are also set out under for the information of Police Officers under the Custody Section of the Police Handbook. 2. Failure to investigate Jones fraud matter allegation Allegation 5 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that, in March 2014, you failed to adequately investigate a fraud matter. In particular, it appears that you failed to adhere to Standard Operating Procedures relating to fraud matters and failed to complete a COPS event in a timely fashion. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsection 7(e) of the Police Act 1990 and Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. There also appear to be grounds on which it could be concluded that your conduct was contrary to the NSW Police Force Handbook, the NSW Police Force COPS User Guide, and the Crime Recording Standard Policy. 1. The applicant made admissions concerning his failure to adhere to Standard Operating Procedures and enter the relevant COPS Entry in a timely manner. However, notwithstanding those admissions, the applicant denied that he had failed to properly investigate the Jones fraud matter. 2. On the material before the Commission, Allegation 5 is sustained. The Police Handbook sets out in considerable detail the requirements of Police Officers upon the receipt of a fraud report. Reports may be received in person, by telephone or mail. They may also be recorded via the COPS system as an event or case or through the Australian Cybercrime Online Reporting Network. In this matter, the applicant received the fraud report by telephone on 19 March 2014. The relevant COPS Event was not created until 3:15pm on 21 March 2014. 3. In his Response dated 27 May 2014, the applicant made no attempt to explain his failure to enter the matter into the COPS system when the report was received on 19 March 2014. The applicant also failed to explain his failure to follow the Standard Operating Procedures related to fraud matters, particularly the Fraud Assessment Pack which according to the Police Handbook must be completed "before an investigation can be launched". The applicant's response also failed to explain the reasons why no statements were taken from any of the alleged victims prior to interviewing the accused. 4. The applicant's submission that the matter was subsequently handed over to Fair Trading for investigation is in my view an irrelevant consideration on his part. Standard Operating Procedures have a purpose and serve to protect the interests of Police Officers and the integrity of the NSWPF. They also serve to ensure public confidence. 5. The Police Handbook provides that when a person reports a fraud by telephone, the caller is given the choice of either attending any Police station convenient to them or being sent the Fraud Assessment Pack for completion and return. Here, the applicant claims that for certain reasons he was dealing with Mr Attfield by email. There is no evidence before the Commission to suggest that the applicant was unable to send the relevant Fraud Assessment Pack to Mr Attfield's address by mail or by other means. 6. The NSW Police Force COPS User Guide is "a performance support aid for general users of the COPS system". The COPS system is a central computer-based repository of information relevant to policing including the details of any persons, incidents, organisations, locations, objects and vehicles that are of interest to Police. It is a valuable aid for Police investigations and has a valuable intelligence capability. It also provides important case, custody and records management as well as various Court and charge management records. 7. The practical utility of the User Guide to Police work and the integrity of information contained in COPS requires Police Officers to record all reports of crime, victim and witness details in a timely manner and where possible, before the conclusion of the submitting officer's shift. Late entry or non-compliance has the capacity to hinder the efficiency of Police operations. 8. The NSW Police Crime Recording Standard Policy has the following objectives: * Provide clear guidelines to Officers when recording crime and other incidents in COPS through EVENTS and INCIDENTS; * Ensure the accurate recording of crime and other incidents for operational, analytical and statistical purposes; * Improve clarity and promote greater consistency between Commands and recording of crime and other incidents; * Ensure community confidence in NSW crime statistics; and * Comply with the National Crime Recording Standard and meet national crime statistical requirements. 1. Regrettably, the material before the Commission supports the Commissioner's determination that the applicant's conduct in relation to Allegation 5 was a further breach of subsection 7(e) of the Police Act (strives for citizen and Police personal satisfaction) and 7(h) (ensures that authority is exercised responsibly). His conduct also represents a breach of the NSW Police Force Code of Conduct and Ethics (Point 2 – act with care and diligence when on duty and Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties). The Allegation is sustained. 3. Unlawful arrest of Mr Campbell Allegation 6 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 24 April 2014 you unlawfully arrested Mr Campbell. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to Points 2 and 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1. There also appear to be grounds on which it could be concluded that your conduct was contrary to section 7 of the Police Act 1990, Point 6 of the NSW Police Force Code of Conduct and Ethics, of the Law Enforcement (Powers and Responsibilities) Act 2005, the NSW Police Force Handbook, and the Code of Practice for CRIME. 1. This allegation is sustained. On the material before the Commission, there is overwhelming evidence in support of the proposition that the applicant unlawfully arrested Mr Campbell at the Ballina Spar Supermarket on 24 April 2014. Knowledge of a Police Officer's powers of arrest is a basic principle of policing. On the material before the Commission, the applicant's conduct was in breach of the following: 1. Subsection 7(c) of the Police Act (preserves the rights and freedoms of individuals) and 7(h) (ensures that authority is exercised responsibly); 2. NSW Police Force Code of Conduct and Ethics (Point 6 - comply with the law whether on or off duty at all times); 3. Section 99 of the Law Enforcement (Powers and Responsibilities) Act which sets out the powers available to Police Officers to arrest without warrant; 4. The Police Handbook, which sets out comprehensively a Police Officer's statutory powers of arrest without a warrant; and 5. The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) which provides members the public as well as members of the NSWPF with a succinct reference to the powers of Police when investigating offences. 1. The NSW Police Force Code of Conduct and Ethics provides an ethical framework for Police when dealing with suspects by reinforcing the need for all Police Officers to act with honesty and integrity when investigating offences. The Code of Conduct and Ethics also has the capacity to protect Police Officers against false allegations of corruption. 2. Both the Code of Practice and the NSW Police Force Code of Conduct and Ethics require Police Officers to act in accordance with a set of values including: 1. integrity is placed above all; 2. the rule of law is upheld; 3. authority is exercised responsibly; and 4. the rights and freedoms of individuals are preserved 1. The Code of Practice also sets out s 99 of the Law Enforcement (Powers and Responsibilities) Act. Any arrest made by a Police Officer in contravention of the Act, as was the clear case when the applicant arrested is Mr Campbell, is unlawful. 2. The applicant's obligations with respect to the Police Handbook direction which sets out the mandatory arrangements that apply to Aboriginal persons in custody are also relevant to this particular allegation. Those obligations are critical to the safety of Aboriginal persons in custody and a basic tenet of good policing. Mr Campbell was a vulnerable person pursuant to cl 24 of the Law Enforcement (Powers and Responsibilities) Regulation and on all the evidence, the applicant was aware of this fact. There is no excuse for non-compliance by any Police Officer. Allegation 7 There appears to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation that you failed to adequately investigate the report that Mr Campbell was harassing staff at the SPAR supermarket or refusing to leave on request. 1. The applicant's response to this Allegation was, shortly stated, that no statements were required from any party. 2. Relevantly, the applicant's COPS Entry made five days after Mr Campbell's arrest states Mr Campbell was harassing staff and those staff became concerned that he was "hanging around" to commit offences. Mr Campbell was later searched, handcuffed, arrested and conveyed to Ballina Police Station where he was subsequently detained for a period of time. 3. Mr Campbell was arrested absent the applicant speaking to any of the SPAR Supermarket employees or taking statements from them. The allegation is sustained and represents a further breach of the Police Act, particularly subsections 7(b) (upholds the rule of law), 7(c) (preserves the rights and freedoms of individuals) and 7(h) (ensures that authority is exercised responsibly). 4. The applicant's conduct also represents a further breach of the NSW Police Force Code of Conduct and Ethics (Point 2 – act with care and diligence when on duty and Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties) together with breach of subsection 7(c) (preserves the rights and freedoms of individuals) and 7(h) (ensures that authority is exercised responsibly) of the Police Act. Allegation 8 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation that you failed to comply with legislation and NSW Police Force policies and procedures when managing the custody of Mr Campbell by: * not immediately creating a Custody Record for Mr Campbell; * not contacting a support for Mr Campbell, despite knowing he was a 'vulnerable person' for the purposes of clause 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005; and * not notifying the Aboriginal Legal Service (NSW/ACT) of Mr Campbell's detention. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to Point 3 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 1, and subsections 7 (c) and 7(h) of the Police Act 1990 and Point 6 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 6. There also appear to be grounds on which it could be concluded that your conduct was contrary to section 131 of the Law Enforcement (Powers and Responsibilities) Act 2005 and the Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence). 1. This Allegation is sustained. The applicant failed to immediately create a Custody Record for Mr Campbell upon his arrest. As mentioned above, Mr Campbell was a vulnerable person pursuant to cl 24 of the Law Enforcement (Powers and Responsibilities) Regulation. The applicant also failed to contact and advise the Aboriginal Legal Service of Mr Campbell's arrest and detention. 2. The applicant's obligations and those of all Police Officers with respect to the Police Handbook direction which sets the arrangements that apply to Aboriginal persons in custody are also relevant to this particular allegation. Adherence to those obligations is critical for the safety of Aboriginal persons in custody and basic to good policing, particularly given Mr Campbell was a vulnerable person pursuant to the Law Enforcement (Powers and Responsibilities) Regulation. 3. The applicant's conduct in relation to Allegation 8 was in breach of subsection 7(e) of the Police Act (strives for citizen and Police personal satisfaction) and 7(h) (ensures that authority is exercised responsibly). Further, his conduct also represents a breach of the NSW Police Force Code of Conduct and Ethics (Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties). 4. There is also evidence before the Commission to support the proposition that the applicant's conduct was contrary to section 131 of the Law Enforcement (Powers and Responsibilities) Act and the Code of Practice for CRIME. Allegation 9 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that you falsified an official COPS record on 28 April 2014 relation to the arrest of Mr Campbell. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, and Points 2,3 and 6 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegations 1 and 6. 1. The COPS Event subject to this Allegation was made on 29 April 2014, some five days after Mr Campbell's arrest and stated: POI was hanging around the shopping centre at West Ballina harassing staff from the shop called SPAR. The staff became concerned he was hanging around to commit offences. POI searched and moved on. No issues arising. 1. The applicant's COPS Entry, on the evidence before the Commission and the applicant himself, fails to disclose the fact that the applicant on 24 April 2014, searched, arrested, handcuffed and conveyed Mr Campbell to Ballina Police Station where he was subsequently detained. 2. The applicant's response concerning the adequacy of his COPS Entry was that he simply forgot those details and could offer no other alternative explanation. He also claimed Mr Campbell was handcuffed for his own safety and was arrested so that his identity could be confirmed. In my view, it is highly improbable that a Police Officer could simply forget significant events such as those imposed on Mr Campbell just five days earlier. 3. The applicant's COPS Entry cannot be an oversight as claimed. Important details are missing and the entry fails reflected what actually occurred. Accuracy in Police matters is paramount. Mr Campbell was not "simply searched and told to move on". Other matters did arise to the detriment of Mr Campbell. He was arrested and taken to Ballina Police Station where an attempt was made to fingerprint him. The applicant's evidentiary explanation was considered by the Commissioner who determined the COPS Entry was not an oversight and was made to cover the unlawful arrest of Mr Campbell. On the material before the Commission, balanced against the civil standard of proof, the applicant's explanation is plainly implausible. 4. For his part, the applicant claimed that at this particular time, he was suffering much stress. Unfortunately for the applicant, there is no medical evidence to support the proposition that the time of this and the other Allegations, he was suffering from PTSD or another depressive illness. 5. The Commission notes that during the course of his investigation interview, the applicant agreed that the Police power of arrest should be a last resort. The applicant also agreed with the proposition that Mr Campbell did not commit any offence when he first arrived at the supermarket. Nor did Mr Campbell commit any offence after he arrived at the supermarket. 6. On the balance of probabilities, I find this allegation sustained. During the course of his cross-examination concerning this particular allegation, the applicant made an emotional plea that he was not a corrupt Police Officer. In that regard, I note counsel for the Commissioner placed on the record that "no one is suggesting you are a corrupt Police Officer Mr Pace, so let me make it clear". I endorse the views of both the applicant and the Commissioner's counsel. Prior to the series of incidents that gave rise to his removal, there is nothing whatsoever before the Commission to suggest that the applicant was not a highly respected, hard-working and dedicated member of the NSWPF. 7. The applicant's conduct represents a further breach of the Police Act, particularly subsections 7(a) (places integrity above all), 7(b) (upholds the rule of law) and 7(c) (preserves the rights and freedoms of individuals) and 7(h) (ensures that authority is exercised responsibly). 8. The applicant's conduct also represents breach of the NSW Police Force Code of Conduct and Ethics (Point 1 - behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty, Point 2 – act with care and diligence when on duty, Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties and Point 6 – comply with the law whether on or off duty. 9. As canvassed above, COPS requires Police Officers to record all reports of crime, victim and witness details in a timely manner and where possible, before the conclusion of the submitting officer's shift. It is an important mandatory NSWPF policy and standard operational procedure. 10. Police work may be impeded where a COPS Entry is delayed. Breach of the COPS requirements represents a breach of a lawful order – the order that COPS Entry is must be submitted promptly. It must follow that the applicant's conduct under this Allegation is prima facie, neglect of duty pursuant to s 201 of the Police Act. 11. The applicant's conduct subject to Allegation 9 represents a further breach of the Police Act, particularly subsections 7(b) (upholds the rule of law), 7(c) (preserves the rights and freedoms of individuals) and 7(h) (ensures that authority is exercised responsibly). It also represents a further breach of the NSW Police Force Code of Conduct and Ethics (Point 2 – act with care and diligence when on duty and Point 3 - know and comply with all policies, procedures and guidelines that relate to their duties). 4. Conduct towards Ms Everingham 1. In determining Allegations 10 and 11, I have closely considered the materials submitted by both the applicant and the Commissioner. Allegation 10 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 26 March 2015 you acted in a threatening, abusive and intimidatory manner towards Leah Everingham,(sic) to fear for her safety when you: * attended the Riverside Gym at around 2:45pm on 26 March 2015 and verbally abused Ms Everingham and prevented her from entering her workplace; * attended the Riverside Gym at around 6:30pm on 26 March 2015 and followed her to her car, banged on her window, leaned into the car window and tried to grab the keys; and * attended Ballina Police Station at around 7:30pm on 26 March 2015 and interfered with their interview with on-duty Police. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to the Police Act 1990, the Police Regulation 2008 (in force at the time), Point1 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegations 9, and Point 6 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegation 6. Allegation 11 There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 26 March 2015, you improperly interfered with, or hindered, an investigation by another Police Officer when you entered Ballina Police Station and interrupted interview between Senior Constable Bransgrove and Ms Everingham. In the circumstances, there appear to be grounds on which it could be concluded that your conduct was contrary to subsections 7(a), (b) and (c) of the Police Act 1990, Clause 9 of the Police Regulation 2008 (in force at the time) as set out above in Allegation 10, Point 1 of the NSW Police Force Code of Conduct and Ethics, as set out above in relation to Allegations 9, the NSW Police Force Conflict of Interest Policy, and the Crimes Act 1900. 1. The Allegations concerning the Everingham incident are extremely serious. In 2010, the Council of Australian Governments established a 12 year plan to reduce the incidence of domestic violence against women and their children. The NSWPF itself is actively involved in incidents of domestic violence in the community. In 2012, the NSWPF Domestic and Family Violence Standard Operating Procedures were introduced. 2. The "Forward" to the Domestic Violence Procedures relevantly states: Domestic and family violence does not discriminate. It impacts people of different genders, all ages and cultures. It occurs across every Local Area Command and without a doubt takes the most Police time to investigate compared to other personal violence crime types. The investigation of domestic and family violence is complex due to the unpredictability, interpersonal nature of incident(s), and associated risk factors for Police and victims. … Where there is evidence a domestic violence incident has occurred; is occurring; or is imminent, Police will take action to ensure the victim and their family are afforded immediate protection. …. These Standard Operating Procedures provide contemporary advice regarding the methodology for an effective investigation and reflect the commitment of the NSW Police Force to encourage reporting of domestic violence and to drive down incidence of personal violence. Change in applicant's case following his Response to Commissioner's Reasons for removal 1. The applicant's evidence in relation to Allegation 10 concerning domestic violence was that he understood the seriousness of his actions. The applicant's Response in relation to Allegations 10 and 11 was quite brief and he did not deny them. The applicant's view concerning the seriousness of the allegations and his conduct was reflected in the following exchange at the commencement of cross-examination in relation to Allegations 10 and 11: Q. You've read the background to allegations 10 and 11 in preparing your response, correct? A. Yes. Q. And in your response you don't deny any of the matters contained in the background, do you? A. No. Q. Do you agree domestic - someone reporting an incident of domestic violence to a Police station is a serious issue, do you accept that? A. Yes, I do. 1. In further cross-examination, the applicant initially agreed with the proposition that the contents of the various Police Statements made by Ms Everingham, her mother, father and Ms Macdonald were factual: Q. So just through your experience as a Police officer, you're aware how serious an allegation of domestic violence is. Do you agree with that? A. Yes. Q. Ms Leah Everingham is your ex-girlfriend? A. Correct. Q. Who made allegations against you of domestic violence. Do you accept that? A. Correct. Q. Tell me if you need to take a break, Mr Pace. A. No. Q. In retrospect, you feel a lot of shame about how you dealt with the situation. Would you agree? A. Yes, I did. Q. And I'm not trying to prolong this any longer than I have to, but you also understand from Ms Everingham's point of view how she felt because you've read her statement in these proceedings. Do you accept that? A. Yes. Q. And you've read the statement of her father. Yes? A. (No verbal reply) Q. Yes? A. Yes. Q. And you've read the statement of her mother. Yes? A. Yes. Q. And you've also read the statement of her friend Lindsay MacDonald? A. Yes. Q. And everything contained in those statements you haven't denied because they're true, correct? A. Yes. 1. The applicant agreed with the proposition that the Commissioner of Police can only make a decision to remove a Police Officer from the NSWPF after he has received and considered the relevant Response. He further agreed that when the allegations were first put to him, he was given the opportunity to make the relevant Response and in correspondence dated 17 July 2017 to the Commissioner of Police, he set out his version of events concerning the 11 Allegations relied upon for his removal: Q. And when the allegations were put to you, you were given the opportunity to put your version of events forward. A. Correct. Q. And set out what you agreed with and what you disagreed with, do you accept that? A. Yes. Q. And in your response, when these allegations are made, you don't actually say that you agree or disagree; in fact, what you simply acknowledge is that you understood the seriousness of your actions. A. Yes. Q. And that's in paragraph 123. A. Correct. 1. The applicant's evidence was that he understood the allegations, accepted that they had been made and had in fact occurred: Q. Now, in understanding the seriousness of your actions, do you accept what you're saying there is that you understood the allegations and you accepted the allegations that had been made, and in fact occurred, and the incidents in fact occurred, and that's why you're acknowledging and understanding the seriousness of what occurred. A. Yes. 1. In response to questions that his Response conveyed that he had admitted the allegations, the applicant agreed with the proposition that he was now seeking to deny certain aspects of those allegations. The following exchange subsequently ensued: Q. Based on your response, did you seek to - you understood that you were conveying that you were admitting to the allegations that had - those allegations. A. Mr Seck, I've never denied anywhere my actions on that night. As to the contents of everything that's taken place, there's a lot more to it. Do I deny speaking with her? No, absolutely not. Do I deny having an argument? I've never denied that. Q. Mr Pace, I know this is very difficult-- A. Well, I don't understand what you're saying. I've answered it. Q. No, what I'm saying to you is this; you're seeking now to deny aspects of the allegations that have been made against you. A. Correct. Q. All right. And so I'm putting to you that if you're denying those aspects of those allegations - I'm not saying all of them, but aspects of those allegations - you haven't clearly identified that you were denying aspects of those allegations in your response. Do you accept that? A. I accept that, yes. Q. And you said no-one's heard your version of events. Now, do you accept your version of events are only coming out for the first time today in the witness box? A. Yes, because it-- Q. Yeah. And-- A. Yes. Q. But you weren't denied the opportunity to put those version of events to the Commissioner of Police to take into account in making his decision; do you accept that? A. Yes. Q. Now, if you're trying to save your job, and you're contesting aspects of the allegations which are being made against you, and you knew the seriousness of the allegations, there'd be no reason for you to accept those allegations unless they in fact occurred, correct? A. Well, again, Mr Seck, I haven't denied-- Q. You've denied aspects - you've just agreed, you've denied aspects of those allegations today in the witness box. A. I've denied aspects of her statement, or her evidence. Q. Well, no. I put to you the specific allegations and you said you'd rejected them. So let me put them to you again. A. Yes. Q. It says here that you engaged - you acted in a threatening and abusive and intimidatory manner towards Ms Everingham. You reject that allegation. A. Yes I do. Q. Now, that's a finding which is made by the Commissioner. A. Yes. Q. Now, that's a finding which is made by the Commissioner. A. Yes. Q. Now, you don't actually say that in your response, that you reject that. A. No I don't. Q. Then it says here that you verbally abused Ms Everingham. Now, you deny that allegation, right? A. I'm saying there was a lot of arguments going back and forth. Q. Well, let me be clear about this. Do you accept or do you deny that you verbally abused Ms Everingham-- A. No. 1. In further cross-examination, the applicant agreed with the proposition that if he denied certain allegations, such denials should have been included in his Response which the Commissioner had sought prior to determining whether or not to remove him from the NSWPF: Q. I've just read out the allegations to you. So let me do it step by step, and you can read it in front of you as we go along. Okay, so go to page 24 of the show cause notice. Allegation 10. A. Yes. Q. You have that in front of you. So the allegation is you acted in a threatening, abusive and intimidatory manner towards Leah Everingham. Do you accept or reject that allegation? A. I reject that. Q. Then the next part, "It appears you caused Ms Everingham to fear for her safety when you attended Riverside Gym at around 2.45pm and verbally abused Ms Everingham." Do you accept verbally abusing her? A. No I don't accept verbally abusing her at all. And I don't accept that she was in fear of her safety at all. Q. So you reject that allegation as well. A. Correct. Q. Do you reject the allegation that you prevented her from entering the workplace? A. Yes. Q. Now, go to the next bullet point on page 25. A. Yes. Q. It said, "Attended the Riverside Gym at around 6.30pm on 26 March and followed her to her car, banged on her window, leaned into the car window and tried to grab her keys." Now, let's take it step by step. Do you deny following her to the car? A. I deny that. Q. I'm doing it step by step, just so there's no-- A. Well, I'll tell you why, because the car's parked directly outside, so there's no way in the world you can follow her, so no, I deny that. Q. And do you deny banging on her window? A. I knocked on her window. Q. Do you deny leaning into the car window and trying to grab her car keys? A. I deny touching her car keys. I don't deny leaning on the window sill like this, which is clearly shown on the footage. Q. Do you deny trying to grab the car keys? A. Absolutely. Q. Now, I've just taken you to-- A. Yes. Q. --the key parts of the allegation. We'll come back to the part at the Police station. Now, you accept those denials are not contained in the response document. A. Yes I do. Q. Why are they not contained in the response document? A. Because I thought that the matter was dealt with, Mr Seck. I didn't know how to address it. It was something I seriously, still to this day, wouldn't have the faintest idea how to even address any of them. My response was simply that it was dealt with, and it was dealt with by the Court, and I didn't know how to deal with it. … Q. Well, you said had you known that you should have put a full report in. You knew, in putting on your response, what the Commissioner was asking you to do was to put everything you wanted to put for the Commissioner to take into account in determining whether or not to remove you from the Police Force, agreed? A. Yes. 1. Sections 181(D)(3) and 181(D)(4) of the Police Act relevantly provide: (3) Before making an order under this section, the Commissioner: (a) must give the Police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a Police officer, and (b) must give the Police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the Police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the Police officer from the NSW Police Force. (Emphasis added) 1. Sections 181(D)(3) and 181(D)(4) require the Commissioner to make available to the applicant all documents and other material relevant to the Commissioner's decision to make the order, except to the extent to which Regulations under the Act might otherwise provide. 2. Pursuant to s 181F, the applicant has at all times the burden of establishing that his removal was harsh, unreasonable or unjust. Critically, s181F dictates how the Commission is to conduct the review and provides a strict three step process: 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. (Emphasis added) 1. Accordingly, the Commission must first consider the Commissioner's Reasons for removing the Police Officer. The Commission must subsequently consider the Police Officer's case as filed pursuant to the directions made or varied by consent or by the grant of leave, why the removal is harsh, unreasonable or unjust. Finally, the Commission must consider the Commissioner's case in reply, as filed pursuant to the directions made or varied by consent or by the grant of leave. 2. Directions of the Commission for the filing and serving of evidence are binding and require the parties' compliance. 3. Section 181F(1)(a)-(c) are mandatory provisions. Section 181F(1)(b) requires the Commission to consider, and only consider, the case presented by an applicant as to why the removal is harsh, unreasonable or unjust. That case must be confined to the evidence filed and served pursuant to any directions made by the Commission or, where leave may have been granted. 4. Given the Commissioner is required under s181(D)(3)(b) to take into consideration written submissions received from the Police Officer following the "show cause" period of at least 21 days and, the mandatory obligation of the Commissioner under s181(D)(3)(c), to consider those submissions prior to the making of any Order, it seems that the intention of Parliament was that an applicant is simply unable to change an aspect of his or her Response and evidentiary case as filed absent further directions being made or varied by consent or by the grant of leave. The legislative scheme would become unworkable if an applicant was allowed multiple attempts to put the written case why removal is harsh, unreasonable or unjust. 5. Accordingly, it is impermissible for an applicant to depart from their 181(D)(3)(b) case without further directions or leave being sought and granted. Otherwise, the process of show cause and review would be ongoing which does not seem to be the intention of Parliament. Put alternatively, absent leave or a variation in directions, an applicant only has "one shot" to state why the removal is harsh, unreasonable or unjust. 6. In circumstances where an applicant has not presented a response to a particular reason(s) of the Commissioner, it is not permissible to subsequently provide a "response" during the course of arbitration without first obtaining leave from the Commission, because s181(D)(3) contemplates that the Police Officer must make his written submission in relation to the Removal Order within at least 21 days after the Show Cause Notice has been received. Determination of Allegation 10 1. Allegation 10 is sustained. I accept, on balance, the version of events provided by Ms Everingham. The applicant put his foot against the gym door so as to prevent her from opening it. She also stated the applicant pushed the door closed when she made a further attempt to enter. 2. I have examined the CCTV video footage of this incident that took place on 26 March 2015 a number of times and against the backdrop of the civil standard of proof, I am comfortably satisfied that the applicant made several attempts to prevent Ms Everingham from entering her workplace. I make that finding. 3. The CCTV evidence shows the applicant placing his foot in front of the gym door in an attempt to prevent Ms Everingham from entering her workplace. It most certainly shows the applicant closing the door on several occasions at times when Ms Everingham was attempting to open it. 4. In cross-examination, the applicant did not deny that he had placed his foot in front of the door, but stated he could not recall doing so -despite his confirmation that he had viewed the CCTV footage that showed him placing his foot in front of the gym door. 5. On the evidentiary material before the Commission, I prefer the account of the incident given to Police by Ms Everingham and Ms MacDonald. I have determined that it is more probable than not that at or around 6:30 pm, the applicant followed Ms Everingham to her car, banged on her car window, then leaned into the car window attempting to grab her keys. 6. The Commission notes again that the applicant has sought to rely upon his mental health state at the time of the incident to explain his conduct. However, there is no medical evidence before the Commission to support the applicant's case he was suffering mental illness at the time of the Everingham incidents and was not responsible for his behaviour that gave rise to Allegations 10 and 11. 7. On the material before the Commission, the Commissioner correctly determined the applicant's conduct was contrary to the Police Act 1990, the then Police Regulation 2008, Point1 of the NSW Police Force Code of Conduct and Ethics and Point 6 of the NSW Police Force Code of Conduct and Ethics. Determination of Allegation 11 1. In relation to the allegation that at or around 7:30 pm on 26 March 2015, the applicant attended Ballina Police Station and interfered with Ms Everingham's interview with on-duty Police, Senior Constable Bransgrove and Leading Senior Constable Wilks, the entirety of the evidence against the applicant is compelling. I prefer the evidence of Senior Constable Bransgrove over that of the applicant. This particular allegation is sustained. 2. The applicant's conduct is inexcusable and runs counter to the community's confidence in the integrity of NSWPF members in the performance of their duties. 3. On the material before the Commission, the Commissioner has correctly determined the applicant's conduct was contrary to subsections 7(a), (b) and (c) of the Police Act 1990, Clause 9 of the then Police Regulation 2008, Point 1 of the NSW Police Force Code of Conduct and Ethics, the NSW Police Force Conflict of Interest Policy, and the Crimes Act 1900. Character Evidence 1. I have considered the character evidence submitted in support of the applicant. It is fair to observe that none of the applicant's character witnesses had worked with him in recent times. 2. Detective Superintendent Howlett supported the applicant being reinstated to the NSWPF. She considered the applicant performed the role of Detective Sergeant in the JIRT at the time she was Manager to a very high standard that was not subject to complaint. 3. In relation to the Everingham incident, the Detective Superintendent considered the applicant's conduct was "totally and utterly unacceptable". She also confirmed that when asked to provide her character reference she was not provided with the two-volume Commissioner's Reasons documents which accompanied his show cause Notice. 4. Similarly, Detective Inspector Goddard provided a positive reference in support of the applicant's work. However, he also had not read the Commissioner's Reasons documents. In cross-examination, the Detective Inspector agreed with the proposition that it was ultimately a matter for the Commissioner to determine whether the allegations put against the applicant warranted his removal from the NSWPF. 5. Ms Rustja, a former Detective Superintendent and Commander of the Child Abuse Squad considered the allegations were totally inconsistent with the applicant's behaviour and work when he was a member of the Ballina JIRT. She urged the Commissioner to take account of the applicant's mental health and consider an alternative non-operational role rather than removal. 6. In cross-examination, Ms Rustja stated she had read the applicant's 181D Notice but was not given the Commissioner's Reasons documents. 7. All character witnesses were adamant that the applicant's conduct was out of character. Public interest 1. The Police Act sets out prescriptions as to 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 must further have regard to the public interest. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. Public interest is partly defined under s 181F(3)(b) to include the interest of maintaining the integrity of the NSWPF. 2. The public interest of maintaining the integrity of the NSWPF is taken to include the fact that the Commissioner has made an order pursuant to section 181D (1). 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. It is clear that the requirement to consider the Commissioner's reasons necessarily includes in it a consideration of the processes followed by the Commissioner in coming to the decision to issue the Order: Vouden at [508]-[509]. In terms of process, the applicant has raised no procedural concerns or deficiencies. 4. The public interest clearly lies and is properly served by the maintenance of a Police Force where the Commissioner can expect all officers to be the subject of strong discipline and compliance with all policies and procedures. It should be noted that NSWPF policies and procedures amount to a lawful direction to obey. 5. In this matter, the applicant had a long history of good policing. However, the breadth of the allegations that gave rise to his removal from the NSWPF are very serious and constitute a pattern of misconduct rather than a "one-off" event which may have been dealt with differently by the Commissioner and on review by the Commission. 6. Clearly, the public interest is not served by requiring the Commissioner of Police to retain an officer who has breached disciplinary requirements and has failed to comply with basic policies and procedures on a number of occasions. Medical Evidence 1. The applicant has urged the Commission to take into account the fact that he was suffering mental illness at the time of the incidents that subsequently led to his removal. The applicant sought to rely on the Report of Ms McMasters, a psychologist, whereas the Commissioner obtained a Report from Dr Allnutt, a forensic psychiatrist. 2. Dr Allnutt was not required for cross-examination by the applicant and his Report was admitted into evidence without objection. Accordingly, there is no medical evidence before the Commission to support the proposition that the applicant was suffering mental illness in the form of PTSD or depressive illness at the time of the four incidents that occurred between February 2014 and March 2015. Nor is there medical evidence that would support the applicant's reinstatement. 3. The medical evidence does not support a conclusion that the applicant was not responsible for his behaviour between February 2014 and March 2015 because he was suffering a PTSD or depressive illness episode 4. On the material before the Commission, there appears to be no impediment that would have prevented the applicant's solicitors from obtaining an expert medical opinion particularly in circumstances where a psychologist's opinion was obtained. Jones v Dunkel inference 1. The applicant urged the Commission to draw a Jones v Dunkel inference in relation to the Commissioner not calling Ms Everingham to give evidence. Accordingly, the Commission should determine the evidence of the applicant is preferred to the untested accounts of Ms Everingham relied upon by the Commissioner. The onus of proof falls to the applicant. 2. The rule in Jones v Dunkel is that an inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. That inference is that the evidence, if adduced, would not have assisted the party's case. The rule is expressed in the following way by Odgers in Uniform Evidence Law , 7th edition, Law Book Co, 2006 at page 176: ... while it may (depending on all the circumstances) be appropriate to conclude that evidence already adduced by an opponent which might have been contradicted by the uncalled evidence may be more readily accepted, and inferences open on the opponent's evidence more readily drawn, the failure cannot fill an evidentiary gap in the opponent's case. 1. The rule in Jones v Dunkel is discretionary. It is also clear the rule does not require a party to call a witness to give evidence that is substantially already before the Commission and given by another witness in the proceeding (Senior Constable Bransgrove) or, as was also the case here, set out in the Commissioner's Reasons documents. 2. At the outset, it should be noted that the Commissioner considered the applicant's Response to Allegations 10 and 11 and determined that he admitted those allegations. It was not until the applicant's cross-examination that the Commissioner became aware for the first time that his conduct subject to Allegation 10 was not admitted. 3. Against that backdrop, the Commissioner was entitled to take the view that as Allegation 10 was admitted conduct prior to the applicant's cross-examination, there was no requirement to call Ms Everingham, her parents or Ms Macdonald. No attempts were made to seek directions or request that Ms Everingham and others be called. 4. In her Police Statement sworn on 28 March 2015, Ms Everingham set out in considerable detail the incident subject to Allegations 10 and 11. She also described her relationship with the applicant as "turbulent". On balance, her evidence was that she held a fear in respect of the applicant's conduct against her. 5. Ms Everingham described in her Police Statement the applicant's adverse conduct that she observed after one breakup with the applicant: Darryl started attending my work premises. He would turn up whilst on duty, coming (sic) to my house in uniform, stand out the front of my premises and yell abuse at me. He would park the work truck at the front of my place of work, come in and hang around. 1. As stated above, Ms Everingham's Police Statement was attached to Senior Constable Bransgrove's statement. 2. The applicant was at all times aware of the veracity and tone of the Police Statement and had ample opportunity to call Ms Everingham as a witness in these proceedings. He did not do so. 3. Moreover, I do not consider any particular matter has been raised in evidence which placed an obligation on the Commissioner to call Ms Everingham who, on a material before the Commission, has done nothing wrong. Unlike the majority of the Commissioner's witnesses, Ms Everingham was neither a Police Officer nor a medical expert. There is also no material before the Commission to suggest that she would "fall within" the "camp" of the Commissioner or applicant. 4. Consistent with the rule in Jones v Dunkel, an unfavourable inference cannot be drawn solely on the basis that a witness was not called. There must be a basis elsewhere in evidence to support that inference. In the circumstances of the present case, it was not unreasonable for the Commissioner not to call Ms Everingham. Her evidence was squarely before the Commission. Her Police Statement sets out her sworn account of what occurred. 5. In circumstances where a party considers a witness's evidence to be critical, is open for that party to call that particular witness. Where the particular witness does not wish to co-operate, a party can seek an order that the witness attend proceedings. The reasons why the applicant did not call Ms Everingham to test her Police Statement evidence, are unknown. In the alternative, it may have been possible for the applicant to approach the Commissioner to arrange for Ms Everingham's presence. 6. The directions made by the Commission on 25 June 2018 provided for the Commissioner to file medical evidence and any lay witness evidence in relation that medical evidence. Neither the applicant nor the Commissioner sought directions to be made for the filing of any other evidence. In s181D proceedings, the applicant bears the onus of proof and he had ample opportunity to call Ms Everingham or other witnesses in relation to Allegations 10 and 11 in order to prove the conduct as alleged relied upon by the Commissioner did not occur. 7. There is no Jones v Dunkel inference available because there was no unexplained failure to call Ms Everingham. Disposition of the matter 1. At the outset, it must be said that the provisions of the Police Act regulate the NSWPF as a disciplined force so as to ensure that at all times, public confidence in the integrity of its Officers in the performance of their duties is maintained. 2. Sections 173 and 181 of the Police Act operate to maintain that public confidence by ensuring that individual Police Officers do not jeopardise public confidence by their conduct, nor neglect the performance of their Police duty, nor abuse their powers. In Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 at 412, Justice Brennan expressed the importance of public confidence and integrity of officers: 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. It must follow that a sworn NSW Police Officer must accept without question the levels and standards of discipline that apply within the NSWPF. 1. Pursuant to s181F of the Police Act, the Commission is required to consider sequentially the reasons for the Commissioner's decision to remove an Officer from the NSWPF and the cases put respectively for the applicant and the Commissioner as to whether the removal was harsh, unjust or unreasonable. 2. Section181F(3) of the Act requires the Commission, in part, to have regard to the interests of the applicant and the public interest in circumstances where the public interest is taken to include the interests of maintaining the integrity of the NSWPF. 3. The fact that the Commissioner has made an order pursuant to s 181D(1)) does not diminish the obligation on the Commission to determine whether the removal of a Police officer was harsh, unreasonable or unjust. They are disjunctive terms. 4. Section 181G relevantly provides the provisions of the Industrial Relations Act, subject to certain modifications, apply to an application for a review in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act. It follows that the meaning of the words "harsh, unreasonable or unjust" in review proceedings under the Police Act 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]. 5. Notwithstanding the requirements of s 181F(1)(a), the Commission must consider the statutory tripartite test, that is, whether the removal was harsh, unreasonable or unjust. Section 181F(2) expressly states the applicant has at all times the burden of establishing that the removal of the applicant from the NSWPF is harsh, unreasonable or unjust. Accordingly, an application must fail in circumstances where an applicant cannot demonstrate that the order to remove was harsh, unreasonable or unjust. 6. In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465, McHugh and Gummow JJ stated: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 1. The determination whether the applicant's removal was harsh, unreasonable or unjust, the Commission is required have regard to the effect of the removal decision on the applicant. The applicant was a career Police officer. He, like other career officers removed by the Commissioner, is seriously affected. However, unlike the majority of officers removed, the applicant may be able to mitigate some of his financial loss through the small business that he established shortly after his removal. 2. In his opening submissions, the applicant pressed that his removal was harsh. 3. The question of harshness was subject to consideration by Walton J in Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25 at [606] to [610]: [606] It is against this background and the findings earlier made in this decision as to the seriousness of the applicant's misconduct that an overall assessment as to 'harshness' must be undertaken by the Commission. [607] As earlier mentioned, that consideration requires an evaluation as to whether the removal of the applicant was harsh because of his personal and economic circumstances or because it was disproportionate to the gravity of the misconduct (in itself or when examined in the light of the personal and economic circumstances of the applicant). [608] I have earlier discussed the applicant's personal and economic circumstances and the consequences of his removal. He joined the Police Force as a late career change. … [609] The applicant's past good service record and references attesting to his personal character, work ethic and performance, as earlier found, are also factors which contribute (in favour of the applicant) to an assessment of whether his removal was harsh. [610] Those conclusions do not necessarily result, however, in a finding that the removal was harsh. They must be balanced or weighed against earlier findings as to the seriousness of the applicant's conduct and public interest considerations arising under s 181F(3)(b). 1. This application constitutes a fresh review of the applicant's case. However, having considered all the evidence and submissions before the Commission, I am unable to determine that the applicant in the circumstances of this case has carried his onus to prove, on review that his removal was harsh. Nor am I able to determine his removal was unreasonable or unjust. 2. Regrettably, the evidence before the Commission was that the applicant had engaged in serious misconduct. In those circumstances, I am unable to determine that the applicant's removal was disproportionate to the gravity of his misconduct. The application for review pursuant to s 181E of the Police Act by Darryl Pace is dismissed. The Commissioner's removal order stands. Orders 1. The Orders I make in this matter are: 1. The application for review pursuant to s 181E of the Police Act by Darryl Pace is dismissed; 2. Pursuant to s 164A of the Industrial Relations Act 1996, until further Order of the Commission, there shall be no publication or broadcast of the redacted material as described above in paragraph 3 of this Decision; and 3. Where any of the redacted material referred to paragraph 3 of this Decision is contained in other evidentiary documents relied upon or filed in the Commission or transcript, there shall be no publication or broadcast of that material. J D Stanton Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2020