Little v Commissioner of Police [2001] NSWIRComm 9 (8 March 2001)

Last Updated: 20 March 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Little v Commissioner of Police [2001] NSWIRComm 9

FILE NUMBER(S): IRC256

HEARING DATE(S): 03/10/2000, 04/10/2000, 05/10/2000, 06/10/2000, 10/10/2000, 11/10/2000, 19/10/2000, 26/10/2000

DECISION DATE: 08/03/2001

PARTIES:

APPLICANT

Geoffrey Bernard William Little

RESPONDENT

Commissioner of Police

JUDGMENT OF: Peterson J

LEGAL REPRESENTATIVES

APPLICANT

Mr A Hatcher of counsel

SOLICITOR

Jones Staff & Co

SYDNEY

RESPONDENT

Mr J J Graves SC, with him Mr G J Willis of counsel

SOLICITOR

Court and Legal Services

NSW Police Service

SYDNEY.

CASES CITED:

LEGISLATION CITED: Police Service Act 1990 ss181E 181D and 181F

Industrial Relations Act 1996 s84

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PETERSON J

DATE: 8 MARCH 2001

Matter No. IRC256 of 2000

GEOFFREY BERNARD WILLIAM LITTLE and COMMISSIONER OF POLICE

Application by Geoffrey Bernard William Little for review of order made under s181D

of the Police Service Act 1990.

DECISION

1    On 14 December 1999 the Commissioner of Police ordered the removal of the applicant, Sergeant Geoffrey B.W. Little, from the New South Wales Police Service. The Commissioner's order was made under s181D(1) of the Police Service Act 1990 ("the PS Act"), which authorises such an order where the Commissioner, taking into account the integrity, conduct, performance and competence of an officer, has formed the opinion that he does not have confidence in the officer's suitability to continue as a police officer. This decision concerns Sergeant Little's application for reinstatement in the Police Service and for the payment of back pay in respect of the period of service lost due to the dismissal.

2    Section 181D is in the following terms:

181D Commissioner may remove police officers

(1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

(2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.

(3) Before making an order under this section, the Commissioner:

(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period.

(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service.

(5) The removal takes effect when the order is made.

(6) (Repealed)

(7) Except as provided by Division 1C:

(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.

In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.

(7A) Nothing in this section, limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.

(7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section.

(8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service.

(9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.

3    A right of review in this Commission of the decision and order of the Commissioner is conferred by s.181E, on the ground that the removal is harsh, unreasonable or unjust. The procedure to be followed in the review is set out in s181F, which is as follows:

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 Police Service,

(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 Police Service 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 Police Service, and the fact that the Commissioner made the order pursuant to section 181D(1)).

The Factual History

4    On 13 October 1999 the Commissioner signed a notice pursuant to s181D(3)(a) of the PS Act, which was served on the applicant on 20 October 1999. That notice was in the following terms:

The Commissioner's Confidence provisions allow for the Commissioner of Police to remove an officer where he has lost confidence in their suitability to remain a Police officer. This is determined by the Commissioner on the basis of one or more of the following criteria: conduct, integrity, performance or competence.

In accordance with Section 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I do not have confidence in your suitability to continue as a police officer taking into account the criteria of your integrity, conduct, performance and competence and on the following grounds:

1. On 18 February 1992, whilst off duty, you revisited the home of a woman you had seen during your shift that day. You then accompanied this woman to a hospital where you professed your views on the woman's condition. Your conduct in this matter was found to be inappropriate and you were counselled accordingly.

2. On 1 June 1993, you were found to be negligent in your duty, in that you failed to maintain strict vigilance whilst escorting a prisoner.

3. In June 1994, a meeting was held during which 4 female work colleagues complained that sexual and suggestive comments were made by you towards them. As a result you received counselling from the EEO branch.

4. On 24 June 1994, a meeting was held in relation to concerns raised at North Sydney Police Station regarding your competence as a supervisor. These concerns resulted in a complaint being initiated and as a result you were removed from your duties as a shift supervisor.

5. In September 1994, you disobeyed a direction not to have any form of conduct with four female officers as a result of an internal investigation. You were departmentally charged with disobedience however this was withdrawn due to new management practices that have been adopted by the Service.

6. Between the 20 October 1995 and 24 November 1995, whilst working at the Mosman Patrol on supervisory duties, five incidents were identified by your work colleagues as being of concern with regard to your approach to officer safety and your lack of knowledge or disregard for police procedure.

7. In March 1995 you breached the copyright of the Police Service Weekly be reproducing and then circulating an article originally published in the Police Service Weekly. On 12 October 1995 you intentionally promoted yourself through the "Smiling Policeman" character in an article published in the Mosman Daily. These acts were contrary to a Directive Memorandum from the North Region Commander, dated 27 September 1994 and acknowledged in writing.

8. You failed to obtain the approval of the Patrol Commander, Dee Why prior to being interviewed for an article which appeared in the Sunday Telegraph on 17 March 1996 contrary to the Directive Memorandum given by the Acting Commander, Dee Why which you had acknowledged in writing.

9. On 17 May 1996, you made a press release concerning a visit to 1996 Convention of the International Police/Law Enforcement Fellowship of Rotarians which included your photograph in uniform. This article appeared in the Northern Beaches Weekender on 17 May 1996. This action was in contravention of a direction given to you by Acting Patrol Commander.

10. On 11 September 1996, you attended a meeting of the Kuring-gai, Evening V.I.E.W. Club at the Killara Golf Club where you narrated your role as the smiling policeman and distributed promotional literature. This action was a contravention of a direction given by the Acting patrol Commander Dee Why that you were not to address any community organisation in you (sic) capacity as a member of the New South Wales Police Service without the written consent of the Patrol Commander.

11. In August 1998, you engaged in conversation on two occasions with a female officer at Harbourside Local Area Command which caused her discomfort. Your actions on these occasions were contrary to Superintendent Jacobsen's direction that you were not to engage in any conversation with female officers which could be miscontrued.

12. Between 7 November 1996 and 27 September 1998, you made four unlawful computer accesses relating to Ms Elizabeth T. . . . nee C . . . . in the New South Wales Police Service Computer System.

13. On 27 November 1998, you were untruthful to Superintendent JACOBSEN when you stated to him that you did not hand a `Smiling Policeman' card to a member of the public.

14. On 8 December 1998, you were untruthful to Inspector WOOLCOTT when you stated during a Record of Interview that you did not recall whether you made any previous accesses to Ms Elizabeth T ... nee C . . . . prior to the 27/9/98.

You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under Section 181D of the Police Service Act 1990.

In accordance with section 181D(3)(b) of the Police Service Act, 1990, prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so.

Attached is a copy of your Service history and the facts relating to the matter. Your submission should be delivered to my Office, Level 18, Police Headquarters, 14-24 College Street, Darlinghurst 2010.

(in pars. 12 and 14 I have removed the full name as irrelevant)

5    It will be seen that the notice was served some 10 months or so after the last incident (numbered 14) alleged against the applicant. Further, the list of incidents, on its face, stretches back to 18 February 1992 although one of the complaints by a female work colleague referred to in the third paragraph actually related to events in 1986. This was a point of complaint by counsel for the applicant, Mr A. Hatcher, who submitted the Commissioner had, essentially, dredged up the whole of the history, any single incident of which would not justify dismissal and most of which was exhausted or stale. In any event, it was submitted that the applicant has put forward in evidence a justification for his behaviour in the context of each incident such that the formation by the Commissioner of an opinion that he was unsuitable to continue in the Police Service cannot be sustained. This is particularly so, it was said, in the context where a number of the complaints relate to the capacity to supervise, a matter which may be remedied by either education or demotion.

6    In summary, the Commissioner's case is that the history of the applicant, culminating as it did in reasonably contemporaneous incidents of a serious kind, demonstrates good reason for the formation of a lack of confidence. Further, the submission advanced by Mr Graves SC and Mr Willis of counsel for the Commissioner was that, in very material respects, the details of which I shall turn to in due course, the applicant has lied in his evidence before the Commission and that he has thereby disentitled himself to the benefit of any order. This issue will loom large in the resolution of the case.

7    The reasons advanced by the Commissioner for the formation of his view that he lacked confidence in the applicant are contained in a Statement of Reasons which were annexed to the removal order referred to earlier. The Statement of Reasons is as follows:

There are fourteen grounds set out in my notice to you under s181D(3)(a) of the Police Service Act, 1990. These grounds relate to your conduct and behaviour over the past seven years. I have considered the following matters and taken them into account in reaching my determination.

I have grouped the issues as they appear in the Notice, submission and your written submissions into general categories and I will deal with each category separately.

Issue A - Improper Conduct. This matter arose as a result of a written complaint by a doctor at Royal North Shore Hospital following your accompanying a female patient to the hospital after visiting her home, when you had completed your rostered duty. I have read your explanation of this incident, however I do not accept your conduct as appropriate. You placed yourself in a compromising position, becoming involved in a domestic situation off duty, which an officer of your experience should have been aware, was inappropriate. This resulted in you being counselled by your District Commander concerning the prudence and commonsense of your actions. I have not given this particular aspect a great deal of weight in my determination, however, it tends to discloses (sic) a lack of judgment on your part.

Issues B, D and F. Neglect/Incompetence. The escape of a prisoner whilst under your direct supervision. I have noted your comments in your written submission in which you assert that the design, construction and maintenance of the cell complex was the primary cause for this person escaping. I do not concur with your suggestion. It would appear to me that your failure to exercise due care and diligence was the primary cause for this person's escape. This resulted in you being admonished and directed to attend an in service course in respect to the responsibility of having custody of prisoners. However, I have given only limited weight to this aspect in making my decision.

Your lack of competence as a supervisor and lack of ability to properly relate to staff, which led to the an affect (sic) on morale. Your assertions in your written submissions are in conflict with those provided by a number of supervisors at the then North Sydney Police Station. Your explanation fails to convince me that you have the aptitude and necessary skills to carry out the role of a supervisor. Your commander at that time caused you to be removed from supervisory duties and this tends to affirm the doubts I have identified concerning your suitability.

There are further issues in relation to your competence, which causes me concern. You were loaned to Mosman Patrol and again placed on supervisory duties. This resulted in five separate issues, where it is claimed that your actions completely abrogated your role as a supervisor by placing either yourself or other junior officers working with you in jeopardy. Your procedures were outside accepted Service practice and guidelines. I have noted your explanations in your written submissions and I reject those. The complaints about your conduct and the manner in which you carried out your duties come from various officers. You suggest they are all wrong and you are right. However, the matter was referred to the Service Solicitor who conducted an independent review of these matters, which led to a recommendation that you be considered for action pursuant to s181D. A recommendation of this mature supports the claims made about your lack of suitability and as mentioned, these matters weigh heavily upon my decision.

Issues C and K. Sexual Harassment. There is material before me that suggests your dealings with female officers are completely inappropriate. The claims range from innuendo to outright sexual harassment and involve a number of different officers over an extended period of time. This has caused embarrassment and discomfort to these female officers. You have provided comments in your written submissions that deny or discount these claims of sexual harassment. I do not accept your denials. The material arrayed against you by various officers, supports these contentions, particularly when the EEO Branch, which is external to your command, raises concerns as does your commander about your conduct. I have placed reasonable weight on this aspect in making my determination.

Issue E. Disobedience in respect to the previous issue of Sexual Harassment. An additional factor is that you were directed not to have contract with the female officers involved in the sexual harassment claim. You assert in your written submissions that this further contact was inadvertent However, I do not accept that assertion. I note that disciplinary action be taken against you. This harassment issue causes me concern.

Issues G, H, I and J. Disobedience to directions. There is material before me that suggests you refuse to obey clear directions from your superiors concerning your involvement in the `Smiling Policeman'. This was not on one occasion but continued over a number of years. You have attempted to explain the reasons for your involvement in this matter. I do not accept that your reasons explain your continued disobedience to clear directions that you not be involved. It displays, in my view, a complete disregard for discipline and the authority of your various commanders over a period of time. I have given this aspect a reasonable amount of weight in making my determination.

Issue L. Unlawful Computer Access. There is material before me that suggests you unlawfully accessed the police computer system on a number of occasions in respect of Ms C, who was known to you. You have denied this allegation. I reject your denials on the basis that an investigation was conducted and audits made of your computer access which revealed these accesses. I reject your claim that you had lawful reason to conduct those accesses. I find this aspect disturbing, particularly your lack of acceptance that you acted inappropriately.

Issues M and N. Untruthfulness. There is material before me that discloses that you were untruthful, firstly to your commander who challenged you about handing over a smiling policeman card to a person at the police station counter. Secondly, in relation to your answers to questions asked during an interview in respect to your computer access. You have denied these claims of untruthfulness and discounted them as a lack of recollection. I do not accept your denials on the basis, that after initially denying the allegation, shortly after admitted what you had done. Also, having accessed Ms C's details on six occasions is something that a person would tend to remember, therefore I believe the answer provided in your interview was untrue on that basis.

I note in your written response that you claim you have not been afforded a fair opportunity to respond to the grounds in my Notice. I do not agree, as legislation provides a period of at least 21 days to respond and I have allowed you 46 days to provide your written submissions.

Having considered the material contained in your written submissions, I believe you have failed to negate the issues raised in the grounds and I do not accept them as a valid rebuttal of the issues raised in respect of you. I have formed the view, based on weighing up the material provided to me, in contrast to your denials, that you have, over an extended period displayed a lack of competence to carry out the duties of a senior police officer. You have shown an inappropriate attitude and demeanour towards female officers, shown a continued disregard to the orders of your superiors and abrogated your responsibilities as a police officer. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service.

8    I turn first to the aspect of the applicant's case which criticises the approach of the Commissioner in relying upon an accumulation of events over a long period of years as justifying the formation of his relevant lack of confidence. It seems to me that to expunge the applicant's history in the context of a case such as this is quite impossible. It may be, in an appropriate case, that a reference to history is uninstructive. However, where over the years it is seen that there has arisen a continual series of events, each of which may have required and received appropriate attention at the time, there may be a culmination of that history in events which cause a re-examination of it as a whole. Even though each incident might, arguably, not warrant dismissal, there may remain room for the formation of a view that the person has demonstrated repeatedly failings which cause, and justify, a loss of confidence. This may be the more so where the nature of the incidents is similar.

9    Nevertheless, certain issues were not relied upon, I think correctly, by the Commissioner as contributing much weight to the reasons for dismissal. I do not intend to gainsay that view. The matters of substance which arise justify an examination of them in isolation. If they support dismissal the other matters are not required as additional matter justifying dismissal; if they do not, the other matters will not achieve the result sought by the Commissioner.

10    In the present case, the re-examination of that history was provoked by particular incidents relating to the applicant's allegedly unlawful accessing of the COPS system, a computerised system of recording criminal and other records, and other information. There had also been some recent difficulty arising over what was thought by the Police Service to be his use, contrary to direction, of what was referred to as his "smiling policeman" persona. Each of these events, in my opinion, were matters of substance which required examination. They were not trivial issues for all of which the applicant had an acceptable explanation. In addition, a difficulty arises as the result of the evidence given in the proceedings concerning an alleged breach of instruction concerning contact with a certain female police officer.

11    Before dealing with the particulars of these events, it is necessary to consider, in general terms, the nature of the problems advanced and their juxtaposition with the relief available should the applicant succeed. The problems raised against the applicant relate to his conduct, his relationships with female police officers, his supervisory abilities and insofar as the evidence given in the case is concerned, his honesty. The evidence on the matter of supervision satisfies me that the applicant had serious and repeated difficulties with the supervision of staff under him such that I would not order his reinstatement into a supervisory position, were there any other course available, without appropriate remediation. Counsel for the applicant and the Police Commissioner agreed that the power to order reinstatement in these proceedings would not include the power to order reinstatement in a position below that occupied at the time of dismissal. That is to say, if the Commission were persuaded that reinstatement were necessary but that it were preferable to a rank without supervisory responsibilities, such an order would not be available as a matter of jurisdiction. It follows that were the applicant successful in the proceedings but found seriously wanting in respect to supervision, the only remedy involving reinstatement would be to order reinstatement to his former position leaving the Police Commissioner to take such steps as he might be advised with respect to, in effect, demotion.

12    The consequences for the applicant of dismissal from the Police Service are considerable indeed. His age of 53 years obviously affects his future prospects of finding suitable work. Apart from any difficulties in that regard, however, there would be experienced a substantial reduction in the superannuation benefit which would otherwise operate should he be able to remain in the Service until age 60. He would then receive either a fortnightly pension of $1,606.40 or lump sum benefits totalling over $484,000. However, as a dismissed officer the entitlement is $103,000, a portion of which must be preserved until age 55.

13    In the ordinary course of reinstatement matters a penalty of that kind seems to me to be a most material fact in determining whether a dismissal was harsh, unreasonable or unjust (s.84 of the Industrial Relations Act 1996). However, while the same test applies under s.181E of the PS Act, such considerations seem to have less significance in the context of a statutory regime which confers upon the Police Commissioner a power to terminate the services of an officer in whom he has lost confidence. If the loss of confidence is justified, the penalty is the loss of employment with such consequences as that might visit upon the officer, variable as it may be depending upon the length of service. On the other hand, if the loss of confidence cannot be justified, the employment of the officer must be maintained. Leaving aside the matter of supervision referred to in par. 11 hereof, there does not seem to be room for a middle view that the Commissioner was justified in forming the loss of confidence in suitability to continue as a police officer but that dismissal would be harsh, unreasonable or unjust, meaning that the person be restored to the Police Service. Such a result would seemingly defeat the clear object of the statutory scheme.

14    Another matter of importance to mention in the context of relief is an undertaking offered by the applicant to resign (or retire) upon his attaining 55 years of age; this would ensure the reduction in his entitlement to superannuation would be substantially lessened. The Commissioner's submission, which I consider partly correct, is that under the statutory scheme I have no jurisdiction to receive the undertaking. I take that view because of the particular purpose of the proceedings, which is to review the Commissioner's order. In such a review it seems to me there may be `jurisdiction' to receive such an undertaking but only where the Commission has otherwise determined to find in the favour of the applicant

15    Section 181F(3) appears to take into account this difference with the Commissioner's confidence provisions by requiring the Commission to have regard to:

(a) The interest of the applicant, and

(b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to s.181D(1).

16    There are in my view at least two obvious competing public interest considerations arising in a case such as this. They are:

(1) To ensure both that police officers are not denied natural justice and that any dismissal was justified. There is a public interest in ensuring that police officers, whose role is vital to the maintenance of a peaceful and stable community, are not lightly found wanting and cast aside.

(2) That persons whose conduct warrants exclusion from the Police Service are not retained after the Police Commissioner has exercised his statutory right to dismiss.

Where the substance of allegations made is satisfied, it is unnecessary to resort to any examination of process and it may be that some procedural failure cannot suffice to justify any interference with the ultimate sanction.

17    I turn to the particular matters which seem to me to constitute the substance of the complaints made in the proceedings about the applicant. In relation to the COPS system issue, it is necessary to give some background. Each police officer with authority to access the COPS computer records (the applicant was authorised) was entitled to do so only under strict guidelines. The applicant had signed as read and understood a Statement of Responsibility which indicated in part that "Access . . . is authorised for the performance of duties only. Information is not to be put to any personal use". Other notices from the Commissioner to police warned that preferment of a departmental charge would be the minimum disciplinary action taken for unauthorised use. It seems that the accesses in question here would carry a maximum penalty of $500.00. Dismissal seems to have been reserved in the policy for the worst type of case: access and release of information for a corrupt purpose. A charge was laid against the applicant re these accesses but they were withdrawn apparently on advice that they should be dealt with under new staff management practices, which involve proceedings such as this.

18    The accesses concerned a female with whom the applicant had been engaging for some years in what he recognised was a disastrous personal relationship. The female, referred to herein as "Ms C.", he described as young and beautiful but also abusive of him, in both the verbal and physical senses. The applicant, in his evidence, recognised that this relationship was a significant factor in leading him to his present state.

19    The two incidents which illustrate his conduct in this respect concern firstly an access undertaken for the purpose of checking whether Police at another station, who apparently had the responsibility to serve Federal or Family Court summonses in relation to some proceedings involving Ms C. had undertaken that task. Mr Little's evidence was that he considered himself as responding to a complaint that the Police Service had failed to comply with its duty and that he accordingly should have made the access. I find that justification unacceptable. The complaint was not made to him as a person who bore any responsibility for the matter. It was not his responsibility but rather his interest. He chose to do the wrong thing rather than to pursue on a proper basis the information he was seeking.

20    The second COPS incident concerned a visit by Ms C. and another male friend to Ashfield Police Station apparently to make a complaint about the applicant's conduct, after he had some discussion with that couple in the car park of an Ashfield restaurant. Whatever there happened, the applicant preceded the couple to Ashfield Police Station where he, followed by the couple, met Probationary Constable Adam Brogan (now a Commonwealth police officer) who, on becoming aware that there was an issue, Ms C. being very annoyed and upset, separated them and then interviewed them separately. He interviewed the couple who he thought had the view that the applicant, being a member of the Police Service, would receive some favourable treatment. Constable Brogan's oral evidence included:

A. . . . They I think were under the impression that maybe I was not carrying out my duties because of the nature of the incident.

Q. What happened, just tell us what happened?

A. They both stormed out. Her partner was intoxicated at the time. They both stormed out of the police station and threw offensive words at myself and threatened me also on the way out of the police station.

Q. To leave the police station what route did they have to take in relation to the place where you left Mr Little?

A. The room is to the left of the police station so the door I suppose is facing Mr Little. Mr Little is sitting sideways to the door, so they would see Mr Little and turn left to go out the side door of the police station.

Q. After they left you what did you do?

A. I tried to the best I could, I followed them outside near the front door of the police station to try and stop them from, not stop them, try to talk to them further about the event in (sic) which they did not want to discuss.

Q. At that point in time where is Mr Little?

A. Still seated in the front of the police station. I then came back into the police station and sat next to Mr Little and had a conversation with him.

Q. In the course of that conversation he identified himself as a Sergeant of police?

A. He produced his card to indicate, yes, yes.

Q. What then happened?

A. A conversation took place. I then said to Mr Little could we go elsewhere to discuss what had occurred that evening. He agreed do that and said yes. We then went to the rear of the police station where a ERISP and a computer were located.

Q. When you say ERISP?

A. Yeah, the electronic recording machine, interview machine and we continued to have a further conversation.

Q. May I ask just shortly what was the purpose, given as I understand it you initiated it, of you taking Mr Little into an interview room in the circumstances that Miss C had left, why did you do that?

A. Because the situation was brought to me at the police station. I was at that time the OIC of the matter, officer in charge of that initial complaint. It was my job as a police officer to investigate what had occurred. Both parties, Miss C and her friend, had left the station. It was my job to talk to Mr Little and discover what had occurred.

Q. Once in the room with the ERISP machine and the computer what took place?

A. We had a further conversation about what had occurred that evening. We, Mr Little expressed to me that he had had previous problems with Miss C. He also indicated to me that, he stated to me that she was a compulsive liar, that she had a problem, that he and Miss C had been involved in incidents in the past that were quite serious and quite lengthy.

Q. Then, without giving us every detail, but give us the important detail, what is the next step, if any?

A. Mr Little then said to me, go to the computer and look up Miss C and you will find that she is a compulsive liar. You will see on the system that I have had various numbers of complaints and events created through other police against her and himself. I said to Mr Little no I wouldn't do that. It is at that time that Mr Little sat over to, sat in front of the computer and accessed the COPS computer mainframe.

Q. Can you tell us the reason you said to Mr Little in relation to his request of you that you wouldn't be doing that, you wouldn't be accessing the computer?

A. At that time of the investigation I didn't believe that it was appropriate with Mr Little in the room as well to look up those details at that time.

Q. What did you regard as being inappropriate given Mr Little's presence, why did that presence make it inappropriate?

A. For me to look up that information?

Q. Yes,

A. Because I didn't particularly want Mr Little to have access to the information. That information that I would get out is for my purpose and for my investigation.

Q. But Mr Little was a police officer, a sergeant of police?

A. That's correct.

Q. What is the difficulty or reservation you had?

A. The reservation is that he was off duty at the time. I am aware that a police officer is always on duty. He was off duty at that time. I was the OIC in charge of that matter at the time. I felt it necessary to conduct my enquiries in an area that was away from Mr Little because Mr Little was personally involved with the matter.

Q. Then what did you do or say when you say Mr Little go to the computer and commenced to get into the data base?

A. I did not say anything to Mr Little. He took it upon himself to access the system and look up the information. I formed the opinion that it was not up to myself to remind Mr Little of what he was doing at the time.

Q. Do you say that having reference to your rank and his rank, is that what you mean by that?

A. I would be lying if I said, there was that aspect but I don't - okay, that was probably 40 per cent of it, I would say. I didn't feel the need to tell him not to access that information. Mr Little is well aware of the information on the COPS mainframe. Now, every police officer is responsible for their own actions that they undertake. He in my opinion, carried out that action inappropriately. It was not up to myself to remind him of that.

Q. I understand that, thank you. You left the room but, was there a purpose in leaving the room?

A. Yes. I left the room to go and see my supervisor located at the front of the station and get the duty officer, being Ken McFarlane.

Q. After making contact with Sergeant McFarlane did you return to the room in which Mr Little was sitting?

A. Yes, that's correct.

Q. What did you see when you returned to that room?

A. Mr Little sitting in front of the computer system looking through various events from Miss C.

21    The applicant's explanation was that he did access the COPS system, but in company with Constable Brogan and with his consent. In response to Inspector Woolcott's Directive Memorandum requiring him to outline the position in this respect the applicant wrote:

I deny I have improperly accessed information in the Service's Computer system. I accessed the information in the presence of those Police whom I believed to be investigating this matter in an endeavour to properly assist those Police in their potential inquiries, and in response to what I perceived were certain vexatious and frivolous allegations being made against me at the time by Ms C.

22    While Constable Brogan's initial written statement created a different impression, I accept that the applicant accessed the COPS system while Constable Brogan was in the room. However, I have concluded that where the evidence between this constable and the applicant differs I prefer the evidence of the constable. I consider it facile for the applicant to contend that he was undertaking the process with Constable Brogan's consent. For a Police Sergeant of many years experience to be engaging in this exercise in the presence of a first year constable in the circumstances indicated by Constable Brogan, does not leave room for any implication of consent from the constable. He could have offered some criticism of the applicant's actions but, in the context of the hierarchical structure in the Police Service, I accept his explanation as entirely plausible. I consider that the applicant was undertaking the access to the COPS system not for the purpose of legitimate police work, which was the function in this matter of the constable. Again he was seeking to access the system for the purpose of obtaining what I consider to have been a personal advantage as a disputant in the matter with Ms C.

23    I accept that the applicant was subjected to considerable stress by the circumstances of his relationship with Ms C. However, I consider the applicant to have permitted his personal difficulties to have overborne his duty in these incidents. The consequences for him were unquestionably difficult but in this matter as in a number of other matters, the applicant appears to me to have decided to pursue a course which he knew to be contrary to the Commissioner's instructions and his duty, when reasonable alternatives might well have been pursued.

24    The nature of the breaches involved here was raised and it was submitted that they were to be considered in the scheme of the penalties able to be imposed for them, which are relatively insignificant. True that may be, they nevertheless raise questions going to the integrity of the officer involved, in the sense that they concern the willingness of the officer to adhere to his employment undertakings and not permit his personal interests to hold sway over his professional obligations. I can see no reason why the Commissioner would not be entitled to weigh these matters in considering the suitability of the applicant to remain in the Service. Should they raise doubts in that respect, in my opinion it would be silly to be required to ignore them for the reason they may have carried a different penalty in other circumstances or, indeed that they were deferred for consideration in this very context.

25    I have mentioned already my views about the applicant's supervisory difficulties. A considerable amount of evidence went to these matters and requires some reference, although because of the views I have formed in relation to the issues concerning conduct I do not find it necessary to deal with the supervisory problems in detail. However, it is necessary to flesh the issues out to a reasonable degree. I consider the evidence illustrates that the applicant's supervisory difficulties were legion. In 1994 he took a position with respect to procedural matters at the North Sydney Police Station which, in effect, put him at odds with the other thirteen supervisors. While this was, of itself, not so much concerned with direct supervision of staff and his relationship with them, it illustrated how his approach to supervision was markedly different from others and helps to explain the fact that he had repeated difficulties over time in his supervision of staff.

26    A meeting was initiated as the result of a memorandum from the applicant to the North Sydney Patrol Commander which sought a discussion by the sergeants at the station about identified failures to comply with certain administrative procedures. It is not to overstate the result as a disaster for the applicant. However correct his criticisms of compliance, the other supervisors interpreted his memo as an attack upon their performance. They responded in a predictable fashion; the attack was turned upon the applicant as a criticism of his supervisory abilities. The nature of that criticism again is illustrated by Sergeant Eyre's evidence as follows:

A. Yes. Sergeant Little, as a supervisor of subordinates, did not have their respect. He did not have the ability to properly lead them. He did not have the ability to properly supervise them. He did not have any ability to recognise their needs. He did not recognise their goals within the Service. He was - he bullied them. He made life a misery for them. He got one constable to a stage where the constable called him out into the back lane and wanted to fight. It just - we would come in to take over a shift on the next day that Sergeant Little had left to find the shift in utter turmoil. Constables were going off sick and were actually sickened because of what transpired during their shift. I mean, they would go out in the road and be face to face with traumatic experiences and then to come into the station and there is a need for them to relax, have a cup of coffee or whatever, and then be confronted by Sergeant Little and his ability or inability to recognise their needs certainly classed him as a very poor supervisor, a very poor leader in that respect. So I can't think of one thing where Sergeant Little, as a supervisor of others, excelled.

Q. Was that an opinion that you held prior to this meeting in June of 1994?

A. It would have been, yes.

Q. Did you ever take any action at all in relation to that feeling as you saw it?

A. Only in verbal discussions with the patrol commander, nothing written.

Q. You have given an example of how you tried to encourage him in terms of his dealings with his subordinates in relation to Constable Anderson, for example, in apologising to him. Did you attempt to counsel him in any other ways?

A. I have had many discussions with Sergeant Little when he was a sergeant and we tried to do it in a civil manner over a cup of coffee. I did relief as a station controller there at one stage and I saw fit to call him into the office and have a formal discussion with him, and I think I would regard that as a counselling session, because he just was not toeing the line. He showed a need or I recognised a need to try and bring him back into line, but it really is quite futile trying to talk to the man, because he just does not seem to accept any criticism, and whatever criticism, however that discussion ended, there was no recognisable difference in his attitude towards his work.

The first answer in this series refers to the staff returning to the station to be `confronted' by the applicant; this refers to the applicant's attempts to ensure that administrative procedures, such as record keeping unconnected with their recent pressures, were completed.

27    In answer to an enquiry why he did not take any formal action in relation to Sergeant Little's conduct he said:

I felt that his failings as I saw them were not, not that serious enough to warrant an investigation into his inabilities and I perhaps felt that to make a written complaint I would need to have some firm evidence that he was totally dangerous in some of the directions he was giving, and I don't feel as though I had enough there to make that complaint. I mean, I quite liked Geoff Little as a person. We could sit down and have an intelligent conversation as long as it was not police work, and I enjoyed his company, and it is not my - I would certainly get no enjoyment out of making complaints. I have never had to make complaints against another police officer.

28    I have to say that the observation by Sergeant Eyre that the applicant does not seem to accept criticism was made out in the course of the applicant's evidence. It is of course not unreasonable for a person accused of particular behaviour to make a defence to the claims. Here though, the impression I gained from the giving of the evidence was that the applicant regarded himself as in step and his critics as out of step on every issue raised. There was only limited indication of any willingness to accept his errors and to move forward from that position; there was also a persistence in arguing the case, sometimes somewhat vociferously, from the witness box. That itself may not be so problematical, were it not for the fact that on so many matters I find the applicant at fault.

29    The poor relationship of the applicant with his staff seems to me to be at the root of the difficulties he had at Mosman Station, each of which was the subject of evidence. These referred to the investigation of a robbery; the matter of breath testing drivers of motor vehicles; the dealing with a potentially dangerous person who was refusing to leave his room after an assault upon his mother and the dealing with a person alleged to have assaulted his wife at the Zoo, while apparently the subject of an apprehended violence order. Each of these issues demonstrated a difference of professional opinion which one would think might be resolved in favour of the supervisor pending a higher police authority's involvement. For my part, the evidence did not disclose any solid reason for concern about the applicant's methods, save perhaps for the Zoo case; but even that is merely a disagreement about a professional question. However, the incidents do reveal a major problem of supervision which, even in the context of a disciplined service, reflects an authoritarian rule so strict as to cause a form of rejection of the applicant by the staff, with a concomitant reduction, if not elimination, of the ability to supervise and control. This was counterproductive in the extreme from the point of view of the applicant yet, as I understood his position, he did not recognise this. I formed the impression that he did not appreciate the fundamental of human relationships, that respect must be earned; he seemed to me to have proceeded on the basis that his rank alone was sufficient and yet it palpably was not.

30    Another principal aspect of his behaviour which came under scrutiny in the proceedings relates to events recorded in 1994, but extending back to 1986, in the context of his relationship with, or attitude to, female members of the Police Service with whom he worked. Consistently with his approach in the evidence generally, I found his evidence in respect of these matters quite troubling.

31    These allegations were raised in June 1994 at a training day held at the North Sydney Station. One event was the holding of a meeting of constables to consider a number of problems they were having with the applicant. A number of complaints were trivial but were considered by the Senior Constable chairing the meeting to have a potential to affect the efficient operation of the Station. His report of that meeting also contained the following:

"Some female police, known to me, have also expressed their concerns about `borderline' sexual harassment comments made by Sgt. Little. I have witnessed two such occasions. These police have refrained from making complaints up to this point."

32    That report led to the issue of a directive memorandum from Detective Inspector Smith to the Senior Constable calling for details of those complaints.

33    A number of incidents were raised in the evidence, the fine details of which I do not intend to relate. Before dealing with the substance of those matters it is useful to give some umbrella evidence which seems to me to be most relevant to these matters. Sergeant Eyre, gave this evidence in cross-examination:

Q. Can I suggest to you that you had never observed anything in Sergeant Little's conduct towards female officers which was inappropriate or, for example, different to your own conduct towards female officers?

A. I could not agree with that. Sergeant Little's reputation with females, whether they be female fellow police officers or whether they be members of the public, was certainly - he was attracted to them and maybe a little bit overly so.

Q. Would you say that the extent of his conduct with those female officers was any different to your own?

A. Probably a little bit more, yes.

Q. A little bit more what?

A. I would have to explain here, and I did not really want to get into this line, but Sergeant Little repulsed females, repulsed them. Females just did not want anything to do with Sergeant Little.

Q. They disliked him for whatever reason?

A. Yes.

Q. And things which might have been said or done by any other officer which would have been accepted by them, was found to be offensive when it came from Sergeant Little?

A. Yes.

34    Sergeant Eyre's views in this matter are consistent with my perception of the reactions in their evidence of the female police officers who gave evidence against the applicant on these issues, to which I now turn.

35    The first concerned Constable Patterson, to whom a complaint was made by another (male) police officer that the applicant had made offensive remarks to him concerning her appearance at a police social function in 1986. The details of the alleged observation were not relayed to her. When she raised the matter with the applicant his response was "Well if you wear those sort of clothes you deserve those sort of comments". This matter was very old and the actual words used by the applicant to the other male officer are not in evidence. Regrettably however, it was the first in what seems to have been a continuum of incidents which upset female police officers.

36    The second complaint was made by Constable Anson and concerned matters such as the applicant straightening the service number on the breast of her jumper and, on another occasion, staring at her jacket buttons in the vicinity of the breasts and remarking to her "These are too big". She was appalled by these events. After another incident between her and the applicant, Sergeant Eyre suggested to the latter that he should apologise. He did so and, after offering his hand in a handshake, took Constable Anson's hand, turned it over and kissed the back of it. This she found offensive and repulsive.

37    A complaint involving Constable Guthrie concerned an incident at North Sydney Police Station when she was leaving an upper floor for lunch. Thinking that the applicant was intending to access the lift, she held the lift door open and said words to the effect "Are you going down?" to which the applicant replied "Oh, I'd love to go down with you".

38    The next incident concerned Constable Watt (married name Chrystal but referred to herein by maiden name) who had made a number of complaints, including that the applicant had made comments to her such as "Hello my lovely"; "If I was 20 years younger I would take you home with me" and "Just admit to me you're beautiful". This was said with such intensity that she felt embarrassed by it. She also complained that he asked unwanted questions about her private life. Constable Watt was in the habit of wearing perfume. The applicant's response, he said as a means of bringing to her attention her excess, was to move close to her and begin `sniffing' for 15 or 20 seconds. This occurred on `countless' occasions. It does not appear that the applicant offered any other type of corrective comment regarding the wearing of perfume.

39    It was Detective Inspector Smith's task to investigate these matters. In a directive memorandum calling for a comprehensive report from the applicant, he referred to the adoption by the NSW Police Service of this definition of `sex-based harassment' as:

Verbal or physical conduct of a sexual nature which the perpetrator knew, or should have known, was offensive to the victim.

40    The applicant's response to the direction was lengthy and it does not bear repeating in full, but some excerpts are important. It made a general denial of any harassment and claimed the victim was the applicant of "sexual harassment in reverse". Some excerpts are:

5. In respect of (a) Senior Constable Guthrie:

Her claim I said; "Oh I'd love to go down with you" is absolutely right, with a slight variation, and said `off the cuff'' in total innocence.

6. She, I and another Member of the Service entered the lift to `go down' to the Ground Floor and in the repartee of the moment, in response to some frivolous comment I said; "I love to go down (in the lift) with Guthrie".

7. I do not know whether Senior Constable Guthrie wants to avoid her responsibilities, but she owes me a lunch. I have known her for a long time and I am aware she spent a long time off for `Stress'.

8. Since our little sojourn in the Exhibit Room, where I found she was quite elusive, all I seemed to be hearing from her, was about her leaving the Police shortly and starting up a magazine. I do not believe she has any allegience to the Service, or to anyone in particular within the Service.

9. In the office, or somewhere later, she did say to me that my comments could be considered as `sexual harassment'. My reply to her was; "It is your filthy mind, not my comments". I further said; "In any event, you do not appeal to me in that way". Possibly I should not have said that either.

13. In respect of (c) Constable Anson:

Constable Anson is a naughty little Constable to whom I do NOT make `sex based' comments. I only make `Sergeant Supervisor based comments' to her.

14. Constable Anson is at times a discipline problem, she is mischievous, and is playing mind games with the Sergeant (me), and `having a lend' of the System. It is this sort of conduct which makes a farce of `Equal Opportunity' and is conduct which falls within the parameters of `Sexual Harassment in Reverse'.

18. I did kiss her hand in what I thought was a moment of `gallantry' (is chivalry totally dead? I know that ALL is not fair in love and war). She did not complain to me, or Sergeant EYRE at the time, or anyone else. For some reason, she has been induced, or canvassed to offer up this `terrible' allegation.

24. In respect of (d) Constable Watt:

I am surprised to read the allegation. Constable Watt is a nice, compliant and hard working Constable who has my admiration and respect. We have spoken about her academic background and once on the car together we discussed all manner of things philosophical. I do not recollect she being offended, or injured emotionally in any way. She did not say anything to me nor did she complain, as far as I know, to anyone in authority.

25. Constable Watt attends work regularly `reeking' of perfume, possibly too much. It enters the Station before her, follows her around, and stays behind after she has long departed.

26. I have commented on this to her, the smell is lovely and I have asked her what it is. She told me, and further informed me it cost $50.00 a bottle. I have always considered my comments to her complimentary. She has not complained to me and only in the current bizarre turn of events, does this matter raise it's rather irrelevant, ugly head. If a male was wearing the same sort of aftershave, I would be saying exactly same things.

28. As I have mentioned in the complementary report submitted this date, it is `I' who is the victim of `Harassment', rather than the itemised alleged `victims'. It does not appear to me that there is much substance in any of the so-called complaints and which can only be described as `pulling a very long bow' or `a very thin straw'.

29. I deny emphatically, that any of my dealings with my Staff, senior, peers or subordinates, male or female, black, brown or brindle, is in contravention of E.E.O. or could be construed as `Sexual Harassment' in the terms of the definition "Verbal or physical conduct of a sexual nature which the perpetrator knew, or should have known, was offensive to the victim".

41    The position taken by the applicant in that report to Detective Inspector Smith is generally consistent with the oral evidence he gave. However, that evidence often seemed to confirm, even if somewhat indirectly, an allegation; an example is his evidence given in denial of the jacket buttons allegation:

Q. The location of the buttons as Senior Constable Vesper asserts were close to the location of a woman's breasts?

A. Of course, the buttons are like nipples, yes, but am I to be constrained to make a comment about something like I said not so much out of order? Am I deprived of the ability to be able to make some reference to an enquiry, because it is a distinct enquiry of me was are they making these jackets with these large buttons now because it seemed like an inappropriate button to wear. (sic)

42    Another example is the evidence given in relation to the lift incident:

Q. Do you accept that "I would love to go down with you" or "I would like to go down with you" can bear a sexual innuendo?

A. May I say once in the lift --.

Q. No, I am speaking generally. Do you accept it is capable of bearing a sexual innuendo?

A. If you had a perverted mind you could take it that way. I say with equal weight there is a perfectly innocent response to a perfectly innocent question.

Q. You say to his Honour in response to Senior Constable Guthrie's perfectly reasonable and polite enquiry you responded in terms?

A. In turn, absolutely.

Q. You meant to convey no meaning other than "I would like to go down in the lift"?

A. "I would like to go down with you", "I would like to go down with you, Kim."

Q. Completely asexual but nevertheless heart felt response?

A. Warm, friendly, to someone for whom I had no sexual interest whatsoever I might add.

Q. It took you by surprise when in response to your words: "Oh I would like to go down with you", your colleagues said: "You had better be very careful what you say and who you say it to"?

A. You are absolutely right.

. . . .

Q. Do you say that when you recovered your composure in the presence of Ruddy and those other people you did not say "Kim, Kim, Kim, I meant nothing by it. I was appreciative of your enquiry", or in your words, did you not protest your innocence to her?

A. I think I said something about a joke.

. . . .

Q. Did you protest?

A. Yes, I did, I made a response like "come off the grass" or something to that effect. That was my response. I was surprised, I was an astounded it was an issue.

. . . .

Q. You had intended the remark you made to the female police officer Guthrie as a sexual innuendo, didn't you?

A. No, I have no control over how she is going to take it but, knowing her, it was an off the cuff and flippant remark.

Q. I suggest you intended that to be an expression used to convey a sexual innuendo?

A. I say it was not, not on my mind, in my response she should interpret it in that way as a female friend; she was a friend, we had been working together in the same office for weeks.

Q. I will ask you again. It was your intention for her to take what you said in a sexual way, that being manifest by what you said to Sergeant Ruddy, namely: "You can't even have a joke any more"?

A. I disagree with that, sir.

43    Having heard the police officers involved give their evidence of the offence to them caused by the applicant and taking into account his contemporaneous response and his evidence in these proceedings, I can only conclude that the applicant has either no capacity or no willingness to understand the difficulty which his behaviour was causing with female staff.

44    Following this Detective Inspector Smith interviewed the applicant on 4 August 1994, during which he gave this direction (and got the reply set out):

Q.4 You are also directed not to have any form of contact whatsoever with any of the four female police officers that are involved in this investigation. Do you understand that?

A. Yes, there is absolutely no likelihood or possibility.

45    However, only shortly after receiving that direction there was contact in the following circumstances. The applicant was due to return from holiday leave to his work at Manly. He attended North Sydney Police Station to collect from safe storage his police appointments (gun, handcuffs and baton) to be ready to resume work on Wednesday of that week. He there came into contact with Constable Watt in circumstances about which their evidence strongly differs. Constable Watt made a report, to which she adhered in her evidence, which contained the following:

He said "Do you have a minute?"

I said "What is this in regards to Sergeant"

He said "Come out here for a minute I want to have a word

with you"

I proceeded to a small outdoor area adjacent to the muster room where there were two other Constables standing. I felt that this was an appropriate place as I was not alone. As I went outside, the Sergeant followed.

He then said "you and I are good friends aren't we"

I said "I don't know about good friends"

He said "I mean, we aren't enemies"

I said "I don't have any enemies that I know of"

At this point, the two other Constables left the enclosed area. As they were leaving, I signalled to one of them by mouthing "don't leave", but he did not understand me and left.

He said "I know that I'm not supposed to talk to you about

this matter but, have I done anything to offend you"

I just looked at him.

He proceeded to say "I haven't made any sexual advances towards you. I thought that you and I were good friends".

I just looked at him not knowing what to say.

He then said "People are trying to cause problems for me. I already have a complaint against me that has been going for years"

I said "Oh have you"

He said "yes"

He then went on to say "I know that I used to . . . (he then sniffed the air several times . . . ) I thought you smelt nice and so I told you, I didn't think you would be offended by it. You are an intelligent girl and I thought you would have realised this".

He then said "Has someone told you to put in a complaint against me"

I said "No of course not"

I felt extremely intimidated by the Sergeant and replied "I informed a senior officer of a few situations and the matter was taken further".

He said "I know who it would have been"

He then said "Are you willing to go to the High court and say what you have just said to me"

I said "Your kidding aren't you?"

At this time I was feeling rather threatened by his QUIZZING of the complaint that I initially made against him. I was tongue-tied and did not know what to say, if anything.

He then finished the conversation when another Constable returned to this area by saying "I just want to let you know that you and I will always be friends, I hold you in high regard".

With that he left."

46    The applicant's version of these events was that he was in the police station not to see Constable Watt but simply to collect his appointments which were secured there. He did not see her within the police station but stepped into the garden area to find that she was already there present with two other male officers. His oral evidence included this:

Q. On 26 September 1994 do you say to his Honour that you sought out Constable Watt to speak with her?

A. No, sir.

Q. Did she say to you, "What is this in regards to, Sergeant"?

A. I don't recall her saying that to me, sir.

Q. Did you say to her, "Come out here", indicating the internal courtyard, "For a minute, I want to have a word with you." Did you say that to her?

A. I don't recall saying that to her, sir.

Q. Had you said those words to her in the muster room and referring to the internal courtyard, those words would have been in the teeth of the direction you were given by Inspector Smith, wouldn't they?

A. That starts to get, starts to become to be defined to the directive from the Inspector, yes, sir, I would agree with that.

Q. Did you and Constable Watt move from the muster room to a small outdoor adjacent area?

A. I remember being with a group of police in the courtyard, suddenly seeing Constable Watt there in the group, making the comment to her I thought we were friends she said they told me to submit a report, that's my recollection of that incident.

Q. Do you say that it's your memory that constable Watt was standing with and talking to the other officers?

A. It was in the group. I hadn't seen her, she is a small woman, she had big men there, suddenly she is there.

Q. You walked up to the group of officers in the internal courtyard and spoke those words to Constable Watt?

A. I went to the group and saw here and said to her, I thought we were friends, I was charged with misconduct over this and this matter was withdrawn, it was withdrawn, the Police Service did not progress this matter and the matter was dismissed, that is how strong this matter was, sir.

47    I mention that the applicant was departmentally charged about this incident but the charge was withdrawn on the date it was to be heard by the Police Tribunal. The applicant had denied the charge at the time. It appears that internal advice was received by the Police Service that it was a matter which might be better managed under "the Employee Management Scheme". No further action was taken until the matter was raised in the context of the s.181D notice, some five years after the event. In the normal course one would be inclined to think that this issue was spent and that the behaviour of the Police Service in that regard could be treated as causing the incident to be de minimus, if not condoned.

48    However that issue relates directly to the underlying incidents the subject of complaint from the female police officers. Those incidents and the evidence surrounding them illustrate a pattern of behaviour which seems to me to have been well established. It involved often the repeated use of language which is capable of having a double meaning. I have no doubt that on each such occasion, its use was deliberate. Obviously, the behaviour of the applicant in this regard ought to have been regarded as unacceptable and requiring attention. Inappropriate as this style of conduct was, most of the incidents concerned events which were either stale, as in the 1986 incident, or tending that way. Looked at now in isolation, I consider the Commissioner would have little chance of succeeding with a termination based upon them; the prospect of a finding of harshness would then appear great.

49    However, the situation now faced is that there is evidence before the Commission from the two parties to the incident concerning the allegation of disobedience of orders and there arises what is an unavoidable need to resolve the matter on the basis of this evidence. My conclusion on this issue is that I prefer Constable Watt's evidence to that of the applicant.

50    My preference for the evidence of Constable Watt arises not merely from a preference of one recollection over another but the rejection of one version of events in favour of the other. I found Constable Watt's evidence to be plausible, unaffected by any apparent desire to be vindictive, given calmly and rationally and, most important, convincingly. On the other hand, apart from the tendency to adopt an argumentative approach in his evidence as earlier referred to, the consequence of which was that he was frequently unresponsive to questions put to him, I found much of the applicant's evidence to be internally inconsistent, less plausible and, on critical issues, unconvincing. As I have recorded, I have preferred the evidence also of Constable Brogan on an issue of substance which, indeed, provoked the inquiry into the applicant's suitability.

51    I turn now to the final issue raised against the applicant with which I intend to deal. The applicant developed at an early stage in his police career a public reputation for his happy, smiling demeanour as a policeman on point duty within the City of Sydney. This was fostered by him over the years and utilised in the context of his activities within the Service. He used a business card which identified him, with a photo, as the "smiling policeman". This appears to have been a reflection of a desire to develop and maintain a high public profile. This caused some criticism of him within the Police Service and indeed in the evidence in this case. There are issues in the case about whether the applicant breached various directions to the effect that he not adopt or utilise this persona without specific prior approval. The specific allegation was that he was untruthful to Superintendent Jacobsen by denying he had handed out his business card to persons at the front desk of his station. Regrettably, this incident too involved a play on words of a kind which one would prefer not to see in disciplinary matters but which arose often in this case. On balance I consider a finding that his conduct did amount to lying should not be made, although I come to that view solely on the papers. It seems to me that what was accepted as a denial that he was handing out his card might have been intended to refer to a criticism he was wasting time. The subsequent admission that he had handed out the card tends to support that.

52    I have understood Mr. Hatcher to have asked me to be cautious in the expression of any view I take contrary to the applicant in regard to his evidence and I intend to accede to that request. My preference of Constable Watt's evidence over that of the applicant has serious consequences. I consider that the submissions for the Commissioner in this regard are insurmountable and that the effect of the resolution of that conflict alone against the applicant is that I could not reasonably differ from the view and conclusion of the Commissioner of Police as to suitability to continue in the Police Service.

53    The failings which have been identified in the applicant's conduct do not go only to his supervisory role as a sergeant of police. Had they done so, there may have been some reason to consider reinstatement in employment with an opportunity being provided to the Commissioner to consider retraining or demotion. However, taking into account all the features of this case, I have come to the conclusion that the Commissioner was justified in forming the opinion that the applicant should be removed from the Service. I do not shrink from stating that such a decision has been difficult to arrive at, given the good service in many respects of the applicant. Many of those features of good service were referred to in the character evidence tendered in the proceedings. There was also reference to a number of functions which did not involve supervision, such as community policing, which the applicant performed more than adequately. However, the problems which have arisen in this matter and dealt with in this decision, particularly with the issue of the applicant's contact with Constable Watt, mean that the applicant has not established that his dismissal was harsh, unreasonable or unjust and make it necessary that I refrain from making any order in the applicant's favour. Accordingly I order that the application be dismissed.

LAST UPDATED: 12/03/2001