Harrison v Commissioner of Police [2006] NSWIRComm 319 (4 October 2006)

Last Updated: 17 November 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Harrison v Commissioner of Police [2006] NSWIRComm 319



FILE NUMBER(S): IRC 6314

HEARING DATE(S): 30/11/2005, 01/12/2005, 05/12/2005, 06/12/2005, 07/12/2005, 08/03/2006, 09/03/2006, 10/03/2006, 21/04/2006

DECISION DATE: 04/10/2006
PARTIES:
Applicant:
Glen Arnold Harrison

Respondent:
Commissioner of Police

JUDGMENT OF: Backman J


LEGAL REPRESENTATIVES

Applicant:
Mr B Docking of counsel
Solicitors:
Oates and Smith Solicitors
Respondent:
Mr P Skinner of counsel
Solicitors:
Legal Services
New South Wales Police


CASES CITED: Bradley George Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Railways (N.S.W.) v Young (1962) 106 CLR 535
Commissioner of Police v Dobbie [2006] NSWIRComm 285
Martin Evans v NSW Police [2005] NSWIRComm 404
See v Hardman & Anor [2002] NSWSC 234
Starr v Commissioner of Police [2001] NSWIRComm 226
Young v The Commissioner for Railways [1962] SR (NSW) 647

LEGISLATION CITED: Evidence Act 1995
Industrial Relations Act 1996
Listening Devices Act 1984
Police Act 1990



JUDGMENT:

- 46 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Backman J

Wednesday, 4 October 2006

Matter No IRC 6314 of 2003

GLEN ARNOLD HARRISON v COMMISSIONER OF POLICE

Application under section 181E of the Police Act 1990 by Glen Arnold Harrison for review of an order of the Commissioner of Police

DECISION
[2006] NSWIRComm 319

1 This is an application for review in relation to the removal of Glen Arnold Harrison (the applicant) from the New South Wales Police following an order issued under s 181D(1) of the Police Act 1990 (the Order) against the applicant by the Commissioner of Police (the Commissioner) on 28 October 2003.

2 The Order which resulted in the applicant's removal from the NSW Police was based on findings made by the Commissioner that the applicant had falsely reported to various persons and prepared documentation containing false and misleading material and improperly arranged for himself to be placed on the NSW Police Service Internal Witness Support Unit programme. These findings related to allegations made by the applicant that he had been threatened by another police officer, Detective Sergeant John Edlund, on 21 May 1997.

3 The applicant seeks reinstatement to his former position, or monetary compensation. The applicant is presently certified as unfit for duty. Nevertheless, he seeks reinstatement in order to permit him to make an application that he be medically discharged from the NSW Police, and to clear his reputation.

Factual background

4 When the Order was issued the applicant was a superintendent employed by the NSW Police. It was acknowledged by the Commissioner in the Statement of Reasons attached to the Order that the applicant was highly regarded by both members of the NSW Police and the wider community. The applicant, at the time of his removal, had been a serving member of the NSW Police for 33 years. At the time when the events, the subject of his removal, took place he was performing relieving duties as the Principal of the NSW Police Academy at Goulburn (the Academy).

5 While working at the Academy on 23 April 1997, the applicant drafted a letter to Mr Edlund advising him that his police computer access had been withdrawn indefinitely. The basis upon which this advice was given was that the NSW Police were investigating Mr Edlund following a complaint that he had used his position as a police officer to assist his wife who apparently conducted a repossession and collection business. The complaint alleged that Mr Edlund was accessing police computer records without appropriate authorisation. At that time, Mr Edlund was a lecturer at the Academy.

6 At about 8.30am on 21 May 1997, Mr Edlund approached the applicant in the grounds of the Academy and sought a meeting with him. The applicant agreed. Mr Edlund apparently wished to raise concerns about the progress of the investigation launched against him. One concern was a perceived lack of confidentiality in relation to the investigation which had resulted in certain details and allegations of illegal computer access made against him having become widely known.

7 The meeting took place about 9.00am on 21 May 1997. Mr Edlund, who had in his possession a tape and a recording device, covertly taped the conversation between himself and the applicant. Following the meeting, the applicant prepared detailed handwritten notes of the conversation, in which he alleged that he had been threatened by Mr Edlund during the meeting. A co-worker, Inspector Connor, who was working in an adjacent office at the time of the meeting, recalled going into the applicant's room as the meeting was concluding. In an interview conducted on 28 May 2001, the Inspector made a number of observations concerning the applicant's demeanour. He said:

I do remember going into the room just as their meeting was concluding. And it was fairly tense. Nothing of a direct nature was said to me about what had occurred at the time, but not long after that John did leave and I can recall Superintendent HARRISON being quite ashen faced. He looked quite white to me. He then said something similar, is there a computer I can use, I need to type something up straight away ... I noticed he had a number of pages of handwritten notes on just a normal pad. He then spent a good hour, hour and a half at least typing up what I could only conclude as the version of what had just occurred in the meeting. He was, looked quite shaken to me and quite intense and focussed on what he was doing. And I asked him is he all right, is there anything I can do. He didn't divulge too much detail at the time to me. Later on I found out what had allegedly occurred ...

and, later:

[I] suppose the best way to describe it, he wasn't himself. He looked shaken and as though he'd experienced some sort of trauma would be the way I would describe it. I wouldn't say he was shaking, but if this makes sense, he wasn't far from it. He looked quite worried.

8 On the same day, the applicant informed Chief Superintendent Mahoney, and the Dean of Studies at the Academy, David Bradley, of the alleged threat made against him by Mr Edlund. He also prepared a formal report which alleged harassment and intimidation by Mr Edlund and faxed it to Internal Affairs Command at about 5.45pm.

9 The following day, 22 May 1997 Chief Superintendent Mahoney informed Mr Edlund that he was suspended forthwith on full pay. Mr Edlund was told that the suspension was ordered because of "implied threats" which he made against the applicant. Mr Edlund immediately denied any threats. At that time Mr Edlund did not reveal that he had covertly tape recorded the meeting with the applicant held on the previous day. His apparent justification for this was that he,

[F]elt under threat and I felt that if I did disclose that I had the tape at that stage, possibly the paperwork wasn't so firmly entrenched that it couldn't have been changed.

10 On 23 May 1997 the applicant composed a letter to Assistant Commissioner Christine Nixon in which he sought that he and his family be placed in the Internal Witness Support Programme and that he be permitted to carry his firearm off duty.

11 In late June or early July 1997 Mr Edlund saw Assistant Commissioner Nixon and presented her with a transcript which purported to transcribe the conversation between the applicant and Mr Edlund on 21 May 1997 which Mr Edlund had covertly recorded. Mr Edlund also handed the Assistant Commissioner a copy of the tape of the alleged original recording which he had made at home. The Assistant Commissioner sent a "covert file" to the then Commissioner of Police, Commissioner Ryan. Sometime in or around the first week of September 1997 Mr Edlund was informed that his suspension from duty was to be lifted. This was done on Assistant Commissioner Nixon's recommendation. On 9 October 1997 Chief Superintendent Mahoney wrote to Mr Edlund informing him that he could return to duty. It seems Mr Edlund did not return to duty. He was medically discharged from the NSW Police in around December 1998.

12 The applicant first became aware of a covert tape recording of the meeting of 21 May 1997 immediately prior to the interview conducted on 6 November 1997 between himself and Inspector Barton. During the interview the applicant was questioned about the contents of the transcript which contained no references to any threat or threats emanating from Mr Edlund either express or implied. The applicant disputed the accuracy of the transcript saying:

There are many aspects of the document that are crossed out in places and to the best of my recollection there is a part right at the end missing.

I pause here to observe that according to the evidence in these proceedings the transcript had been prepared by Mr Edlund within about one to two days of 21 May 1997 on his home computer.

13 The applicant informed Inspector Barton that "at the end of the document" certain words (constituting a threat) were said to him by Mr Edlund at the conclusion of the meeting, "at the doorway". According to the applicant at that point in time Mr Edlund said "just watch yourself". When the applicant enquired "what do you mean by that?", Mr Edlund added "you know what I mean".

14 Shortly after, on 2 December 1997, Mr Edlund was interviewed about the circumstances of the meeting of 21 May 1997. At the commencement of the interview Mr Edlund was advised by the police interviewers (Inspector Barton and Acting Inspector Nunn) that the alleged taping of the 21 May 1997 conversation was in contravention of the Listening Devices Act 1984 (LD Act). During the interview Mr Edlund was shown the same transcript shown to the applicant in his interview of 6 November 1997. The transcript was headed "Transcript of Taped Conversation Between Superintendent Harrison on Det Sgt Edlund Held in the Principal's Office at the NSW Police Academy about 8.30am on 21 May 1997". Mr Edlund refused to say who had produced the document or how the document came to be produced.

15 In December 1999 Mr Edlund made a written complaint to the Commissioner asserting that he was concerned that allegations that he had made against the applicant (that the applicant had falsely accused him of issuing a threat) had not been investigated by the police. Shortly after an investigation was commenced.

16 On 8 November 2000 Inspector Phil Douglass of the NSW Police caused a microcassette tape, identified as Realistic MC-90 No 52902A7, (said by Mr Edlund to be the original tape upon which the recording was made by him of the 21 May 1997 meeting) to be sent to the Independent Commission Against Corruption (ICAC) for analysis. An employee of the ICAC attached to the Technical Services division, Mr Paul Empson, digitised the signal from the tape and listened to it. He concluded that the tape had not been edited or tampered with.

17 On some undisclosed date a second transcript of the recording of 21 May 1997 was prepared by persons attached to the Police Integrity Commission (PIC).

18 On 2 January 2001 the microcassette tape, earlier sent to the ICAC for analysis, was sent to Mr Peter Garde employed by Unisearch Limited for analysis. This microcassette tape, as earlier observed, was said by Mr Edlund to contain the original recording of the 21 May 1997 meeting. The item was forwarded by Inspector Douglass under cover of letter. Mr Garde was also sent two transcripts, one prepared by Mr Edlund and the second prepared by the PIC. Both purported to transcribe the conversation said to have taken place during the meeting of 21 May 1997. The covering letter sent by Inspector Douglass set out the following information:

Subject	Proposed audio tape analysis
Our Reference	00000969
Exhibit	One (1) micro-cassette tape (similar to a standard MC 60 style audio cassette in regular everyday commercial use).
Background	The subject tape was used to record a conversation which now forms the basis of a current investigation. Although there are no grounds to believe that the integrity of the tape is in question or indeed the contents are in any way edited, it is necessary to establish independently and by way of expert opinion that the tape is authentic.
Desired Objectives	1. To establish that the conversation appearing on the subject tape is a continuous and unedited recording of that conversation. 2. To establish that there is no evidence of tampering or editing of the tape contents or any attempts to tamper or edit the tape or this recording thereon. 3. Generally, to provide opinion about the tape and the conversation recorded thereon.

19 Mr Garde, an electrical engineer and electronics and audio engineering consultant examined the microcassette tape and produced a 4 page report on 21 March 2001. He concluded that, although parts of the recording showed evidence of editing, identified by him as discontinuity points, the remaining information was, "...likely to be reliable, unaffected by editing". Although Mr Garde's attention was not directed to any particular part of the recording, and he was not told that one party to the conversation had alleged that he had been threatened during the conversation, the analysis did not reveal the existence of any threats made by Mr Edlund to the applicant.

20 On 22 March 2001, Inspector Wallace of the NSW Police sent a memorandum to "Deputy Commissioner Moroney" informing him of Mr Edlund's allegations against the applicant namely that he had been falsely accused by the applicant of threatening him during the 21 May 1997 meeting. The Deputy Commissioner was also informed that Mr Edlund had covertly recorded the conversation during the 21 May meeting and that the investigation into Mr Edlund's allegation against the applicant was progressing. Inspector Wallace also referred in the memorandum to the "expert analysis" of the microcassette tape, observing:

Expert analysis of the audio tape that was provided by Edlund claimed to contain a conversation between himself (Edlund) and Superintendent Harrison, has not been conclusive in satisfying its authenticity.

21 On 5 June 2001 Inspector Douglass sent a memorandum to Inspector Wallace in which he recorded the progress of the investigation into Mr Edlund's allegations against the applicant. In relation to Mr Garde's report setting out his analysis of the microcassette tape recording, Inspector Douglass in the memorandum said:

Electronic expert - indicates difficulty in definitive conclusions (because of poor quality) regarding tape and "discontinuities" appearing thereon - can't say conclusively one way or the other"

At the end of the memorandum Inspector Douglass said:

Pending the outcome of the abovementioned interviews and without as yet, the benefit of responses from those involved officers, it is difficult to accurately predict an outcome in this matter. Nevertheless, indications to date suggest a probability of an adverse finding in relation to the conduct of both Superintendent Harrison and Assistant Commissioner Brammer.

(The reference to Assistant Commissioner Brammer and a probability of an adverse finding being made against him was not further explored in the material before me).

22 Notwithstanding the reservations expressed by both Inspector Wallace and Inspector Douglass about the inconclusiveness of the expert analysis of the purported original recording of the 21 May 1997 conversation by way of microcassette tape, the documentation nominating the applicant's removal under s 181D, signed by Assistant Commissioner Adams on 27 November 2002 observed:

The independent audio engineer, Mr GARDE, provided his expert opinion that discontinuities in the recording were at 3 minutes 18 seconds (two occasions), 3 minutes 44 seconds and 13 minutes 43 seconds. As the scientific examination shows that the cassette recording was not edited at the point where Superintendent HARRISON claims the threats were issued, it follows that the alleged threats were never spoken.

Notice under s 181D(3)(a)

23 On 13 February 2003 the applicant was given notice under s 181D(3)(a) of the Police Act by the Commissioner of Police, Commissioner K. E. Moroney that he was considering the applicant's suitability to continue as a police officer having regard to his integrity, on the following grounds:

1. On or about 21 May 1997, at Goulburn, you falsely reported to a member of the academic staff at the NSW Police Academy Mr David BRADLEY, that you had been seriously threatened by Detective Sergeant John EDLUND.

2. On or about 21 May 1997, at Goulburn, you falsely reported to your commanding officer, Chief Superintendent Reg MAHONEY, that you had been seriously threatened by Detective Sergeant John EDLUND.

3. On or about 21 May 1997, at Goulburn, you prepared two documents containing false and misleading material, purporting to be an account of a meeting between yourself and Detective Sergeant John EDLUND that day in which you allege that you were seriously threatened by Detective Sergeant John EDLUND.

4. On 22 May 1997 on the basis of false threats you alleged Detective Sergeant John EDLUND made against you on 21 May 1997, you improperly arranged for yourself to be placed on the NSW Police Service Internal Witness Support Unit program because of the fears for your safety and the safety of your family.

5. On 23 May 1997 you falsely reported to the NSW Police Service, Executive Director of Human Resources, Assistant Commissioner Christine NIXON, that, owing to serious threats made against you by Detective Sergeant John EDLUND on 21 May 1997 you feared for the safety of yourself and your family and as a result sought leave to carry your firearm whilst off-duty.

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 NSW Police Act 1990. In accordance with paragraph 181D(3)(b), 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.

Annexed to this Notice is a submission, which I have read and taken into account in issuing this Notice to you. The submission augments the matters raised in the Notice and any response to the Notice should take into account the submission.

Removal order under s 181D(1)

24 On 6 May 2003 the applicant's solicitors forwarded a response to the Commissioner's s 181D(3)(a) notice in a 9-page submission, offering reasons why the applicant should not be removed.

25 On 23 October 2003 the Commissioner nevertheless determined to remove the applicant from the NSW Police. The Order was in the following terms:

I, Kenneth Edward Moroney, Commissioner of Police, having considered your conduct and integrity, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police.

In reaching my decision, I have taken into account a submission prepared in relation to you, the Notice served upon you pursuant to section 181D(3)(a) of the Police Act, 1990 and the written submissions furnished by you through your solicitor. I have carefully considered the matters raised by you in response to the grounds particularised in the Notice.

The reasons for my decision are annexed hereto under the heading "Statement of Reasons".

Your removal takes effect from the date of this Order.

26 Attached to the Order was a Statement of Reasons which is set out in full below:

I am required to make a determination under S181D(1) of the Police Act 1990 in respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you pursuant to S181D(3)(a) of the Police Act 1990, together with your written submission provided through your solicitor in response to the grounds set out in my Notice.

The grounds set out in my Notice to you, refer to your conduct and integrity and relate to the following matters:

On 21 May 1997, at the NSW Police Academy, you met with Detective Sergeant John Edlund and discussed aspects of an internal police investigation which was then underway into Sergeant Edlund's conduct. Following that meeting, on or about 21 May 1997, at Goulburn, you falsely reported to a member of the academic staff at the NSW Police Academy, Mr David Bradley, that you had been seriously threatened by Detective Sergeant John Edlund.

Further, on or about 21 May 1997, at Goulburn, you falsely reported to your commanding officer, Chief Superintendent Reg Mahoney, that you had been seriously threatened by Detective Sergeant John Edlund.

Further, on or about 21 May 1997, at Goulburn, you prepared two documents containing false and misleading material, purporting to be an account of a meeting between yourself and Detective Sergeant John Edlund that day, in which you allege you were seriously threatened by Detective Sergeant John Edlund.

These documents are a formal report by you titled, "Complaint by Superintendent G A Harrison, Police Academy Goulburn concerning the comments, allegations and implied threats by Sergeant J Edlund of the Police Academy, Goulburn on 21 May 1997" and alleged contemporaneous notes made by you. You faxed these documents to the Internal Affairs Command.

On 22 May 1997, on the basis of false threats you alleged Detective Sergeant John Edlund made against you on 21 May 1997, you improperly arranged for yourself to be placed on the NSW Police Service Internal Witness Support Unit program because of alleged fears for your safety and the safety of your family.

The recommendation to place you on the Internal Witness Support Unit program was made by Chief Inspector C J Smith in a report dated 28 May 1997 and approved on or about 30 August 1997.

On 23 May 1997, you falsely reported to the NSW Police Service Executive Director of Human Resources, Assistant Commissioner Christine Nixon, that, owing to the serious threats made against you by Detective Sergeant John Edlund on 21 May 1997, you feared for the safety of yourself and your family and as a result sought leave to carry your firearm whilst off duty.

This application was made by you in a formal report dated 23 May 1997 and titled, "Application by Superintendent G A Harrison, No. 14338 for approval to carry firearm whilst off duty". Your application was approved by Assistant Commissioner Nixon.

As a result of your actions, Detective Sergeant Edlund was "stood down" by Chief Superintendent Mahoney. Further, Edlund was escorted from the Academy premises and later directed not to attend any part of the Goulburn Police Station other than the public area of the inquiry office. He was later suspended from duty.

Other than to later meet with Mr Mahoney, at which time he was informed his position at the Academy had been devolved and he was to be transferred, Detective Sergeant Edlund never returned to duty, retiring medically unfit on 3 December 1998.

Detective Sergeant Edlund recorded the conversation between you and he at the NSW Police Academy on 21 May 1997.

On 4 July 2001, you were interviewed at the City East Region Office. In recalling the conversation and the nature of the threats allegedly made to you by Detective Sergeant Edlund, you stated:

"As he was, as he was just about to go out the door he stopped at about half a metre away, stopped, turned around at me and glared at me and just said, "Watch yourself", and I said, "What do you mean by that?" He said, "You know what I mean." It was very quiet, it was very low and deliberate. It wasn't said loudly, it was very quiet, very deliberate, very precise and, and a real glaring and extremely anger fashion, and I said, "What do you mean by that?" He said, "You know what I mean" and he just left. And it was that, that really caused me a great deal of concern."

Mr Edlund maintains he made no such threats. The tape of the conversation has recorded no such threats or conversation.

The tape of the conversation was examined by Mr Paul Empson on behalf of the Independent Commission Against Corruption. He concluded the tape appeared to be authentic and there was no evidence that the conversation recorded had been edited or altered in any way.

The tape of the conversation was also examined by Mr Peter Garde of Unisearch Limited at the campus of the University of New South Wales. Whilst Mr Garde identified "discontinuities" or "significant possible edit points", it was established, at the time you attributed to Detective Sergeant Edlund having threatened you, there are no possible edit points.

I have taken into careful consideration your response to the S181D(3)(a) "Show Cause" Notice. I particularly note you have maintained the alleged threats were made by Detective Sergeant Edlund. You have stated the reasons for consideration of your removal, as set out in the Notice, are denied as being untrue and have no basis in fact. I note you have claimed procedural fairness has been denied you, however you were supplied with a copy of the "Commissioner's Confidence Submission", which contained the documents upon which I based my decision to issue the S181D(3)(a) Notice. In respect of that, I note previous explanation given you (by way of record of interview) for the matters set out in the Notice were taken into account by me and were included in the "Commissioner's Confidence Submission".

I am fully aware of the high opinion and esteem in which you are held by members of the NSW Police and members of the community, however I have balanced that with your seniority and senior position within New South Wales Police and the conduct as set out in this document.

As I have stated, I have carefully reviewed all of the material associated with this matter. There are claims and counter claims which, if nothing else, adds to the burden of the decision making process. However, having due regard to the weight of the matters disclosed herein, I am obliged to exercise my statutory responsibility and I indicate that I have lost confidence in your suitability to remain a member of the New South Wales Police. I therefore remove you from your position as a police officer.

Relevant legal principles

27 The power of this Commission to review an order made under s 181D of the Police Act is found in s 181E of that Act. The section provides:

Section 181E(1) A police officer who is removed from NSW Police by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust.
(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.
(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant’s suitability to continue as a police officer, as referred to in section 181D (1).

28 Section 181F of the Police Act governs the procedure to be followed by the Commission when conducting a review under s 181E. Section 181F provides:

Section 181F(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 NSW Police,

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

29 Section 181G is also relevant. That section applies the unfair dismissal provisions under Chapter 2 of Part 6 of the Industrial Relations Act 1996 to applications for review under s 181E.

30 In Martin Evans v NSW Police [2005] NSWIRComm 404, Boland J adopted the approach to a review under s 181E set out by the Full Bench in Bradley George Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159. It is convenient to set out the extract in full:

[101] Part 6 Chapter 2 of the Industrial Relations Act encompasses the legislative provisions relating to unfair dismissals. That those provisions have application, albeit modified, in relation to reviews under Part 9 Division 1C of the Police Act has been affirmed in prior decisions of the Commission at both first instance and appellate level. For example, in Newton (No 2) at 80, the Full Bench of the Commission stated:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications.

[102] Further, in Little (No 2) at 237 the Full Bench cited with approval the observations of Walton J in Van Huisstede (No 1) where his Honour stated at para [212]:

Section 181G applies to the provisions of the Industrial Relations Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the Industrial Relations Act , it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act .

[103] In endorsing the above observations, the Full Bench in Little (No 2) said at [65]:

We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act. That provision has the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Part 6 of Chapter 2 of the Industrial Relations Act in such a manner as to import the provisions of Part 6 to the review proceedings together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act, except where expressly excluded by the provisions of s 181G(1).

[104] We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s 181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s 181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest.

It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply.

31 In a comment on the above extract from Hosemans v Commissioner of Police, Boland J said:

[35] It is now a matter of settled law that any decision by the Commissioner of Police to remove a police officer under s 181D of the Police Act because the Commissioner has lost confidence in that officer, is reviewable in a similar manner as dismissals are otherwise reviewable under Part 6 of Chapter 2 of the Industrial Relations Act. That means any consideration of the decision to remove an officer is not confined to the question of whether the Police Commissioner in doing so was justified on objective grounds, but rather whether, having regard to all the relevant circumstances, the removal was harsh, unreasonable or unjust as that test has been developed and applied within the jurisprudence of this Commission over many years. That is how I have approached this matter.

32 In the recent decision of Commissioner of Police v Dobbie [2006] NSWIRComm 285, the Full Bench endorsed the approach set out in Hosemans v Commissioner of Police (No 2) to a review by the Commission of an Order made under s 181D:

[29] The decision of the Full Bench in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 at [134]-[136] is clear authority for the proposition that the Commission's task in undertaking a review of any order made under s 181D of the Police Act was to undertake the review and make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the Commissioner's decision was correct at the time it was made.

33 Hosemans v Commissioner of Police (No 2) also dealt with issues of onus and burden of proof:

[131] The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s 181B of the Police Act was 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 s 181F(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 s 181F and does not offend s 181F(2).

34 In Starr v Commissioner of Police [2001] NSWIRComm 226, Walton J, Vice-President applied the standard of proof set out in Briginshaw v Briginshaw (1938) 60 CLR 336 to allegations by the Commissioner of misconduct as the foundation for a removal order under s 181D. At [184] of his decision in Starr his Honour said:

[T]he applicant submitted that the Briginshaw standard should be applied in these proceedings to the assessment of any finding of alleged serious misconduct or criminal behaviour: see Wang v Crestell Industries at 463 - 464. The Commissioner did not address this question and, as such, I will approach this matter in the manner set out in Briginshaw.

35 In these proceedings the grounds which formed the basis for the applicant's removal under s 181D involved allegations of serious misconduct, namely various instances of false and improper conduct on the part of the applicant. I intend to apply the standard of proof set out in Briginshaw in considering here whether the applicant's removal was harsh, unreasonable or unjust under s 181E: see Dixon J in Briginshaw at 362 and 363.

Consideration

36 The issue as to whether the applicant's removal was harsh, unreasonable or unjust requires a consideration of whether the five allegations of false conduct set out in the s 181D(3)(a) notice can be established on the material before the Commissioner as well as on the evidence before this Commission. The standard of proof is the civil standard but, consistently with the Briginshaw test, "... weight is given to the presumption of innocence and exactness of proof is expected": at 363. The Commissioner in written submissions before this Commission conceded the appropriateness of applying the Briginshaw test to the issue of misconduct alleged against the applicant. The Commissioner submitted that a decision by the Commission to "...overturn" the s 181D Order turns on whether the Commission is satisfied that the alleged misconduct on the part of the applicant is made out. The Commissioner contends in this regard that the "exactness of proof" referred to by Dixon J in Briginshaw is, "abundantly made out" on the materials that were before him.

37 The applicant relies on a number of issues in support of his application that his removal was harsh, unreasonable or unjust. In my opinion these issues may be narrowed to the circumstances of the covert tape recording by Mr Edlund of the 21 May 1997 meeting. That recording was the principal piece of evidence before the Commissioner upon which he formed his view that the applicant should be removed under s 181D. The material before the Commissioner concerning the events of 21 May 1997 consisted of a 22 page document (referred to in these proceedings as the "Commissioner's Confidence Submission (CCS)) with numerous attachments. I have used this material together with other material tendered into evidence during these proceedings to detail the relevant factual background set out earlier in this decision. What emerges from this material is that the Commissioner's attention was directed to the microcassette tape recording with the focus on whether Mr Harrison's allegations against Mr Edlund were borne out by the recording.

38 The Commissioner's decision to remove the applicant was based primarily upon the material in the CCS and the conclusions expressed therein about the contents of the microcassette tape recording. The applicant, after the meeting of 21 May 1997 alleged that Mr Edlund had threatened him. The applicant was unaware at that time that Mr Edlund had covertly taped the conversation that allegedly occurred at the meeting. This revelation, as well as the tape itself, was not made public by Mr Edlund until some considerable time after the 21 May meeting when he presented an alleged copy of the tape recording as well as a transcript prepared by him to Assistant Commissioner Nixon sometime in July 1997.

39 At a much later stage, in November 2000, a microcassette tape purporting to contain the original recording of the 21 May 1997 meeting was handed over to the ICAC for the purpose of analysing the tape for any evidence of editing or tampering. The analysis was done by Mr Paul Empson, who during his evidence in these proceedings effectively conceded that he was not qualified to give any considered opinion as to the authenticity of the tape. I will discuss this issue in detail later in this decision. The same microcassette tape was forwarded to Mr Garde, an electrical engineer, with expertise in tape authentication, for analysis. Mr Garde's somewhat equivocal conclusion was that although there was evidence of editing in the recording there were only a few edit points where the removal of information was likely to be limited so that the remaining information was "...unlikely to have been changed by the editing process" and, that what remained was, "...likely to be reliable, unaffected by the editing". Mr Garde's evidence and his conclusions will also be discussed in detail later in this decision.

40 At least two senior police officers involved in the investigation into the alleged false conduct of the applicant considered that Mr Garde's findings were inconclusive in relation to whether the microcassette tape recording was an authentic account of the conversation. In the CCS however, Mr Garde's findings, in particular, were presented with a greater of degree of certainty. The CCS records:

The independent audio engineer, Mr GARDE, provided his expert opinion that discontinuities in the recording were at 3minutes 18 seconds (two occasions), 3 minutes 44 seconds and 13 minutes 43 seconds. As the scientific examination shows that the cassette recording was not edited at the point where Superintendent HARRISON claims the threats were issued, it follows that the alleged threats were never spoken.

41 In the Statement of Reasons attached to the Order, the critical issue as to the tape's authenticity (and whether or not Mr Edlund threatened the applicant during the conversation) was disposed of in the following brief observation:

Mr Edlund maintains he made no such threats. The tape of the conversation has recorded no such threats or conversation.

The tape of the conversation was examined by Mr Paul Empson on behalf of the Independent Commission Against Corruption. He concluded the tape appeared to be authentic and there was no evidence that the conversation recorded had been edited or altered in any way.

The tape of the conversation was also examined by Mr Peter Garde of Unisearch Limited at the campus of the University of New South Wales. Whilst Mr Garde identified 'discontinuities' or 'significant possible edit points', it was established, at the time you attributed to Detective Sergeant Edlund having threatened you, there are no possible edit points.

42 The real issue in contest between the applicant and Mr Edlund once the existence of the microcassette tape recording was revealed was, simply stated, whether the allegation against the applicant that he, in effect had fabricated his claim of being threatened by Mr Edlund, was correct. It was then incumbent upon those investigating the veracity of the respective claims made by both the applicant and Mr Edlund to ascertain that the contents of the microcassette tape were reliable and to take appropriate steps to ensure that the tape was properly and competently examined as to whether it was an authentic recording.

43 The parties to the proceedings have identified three key points in relation to the microcassette tape recording. These issues are; the continuity of the tape recording, its reliability, and, the expert evidence concerning the authenticity of the tape recording. I propose to examine each of these issues in turn.

Continuity of the tape

44 The Commissioner contends that arguments concerning continuity generally arise in criminal proceedings in relation to the analysis of an item. In the present circumstances according to the Commissioner, the actual item, namely the microcassette tape, not its analysis, is the critical evidence. I note that the Commission's attention was not directed to any authorities which may have dealt with this contention. For my part I see no difference between the relevance of continuity evidence tendered in either civil or criminal proceedings. The Commissioner also contends that it is not necessary in any event for the purpose of establishing the continuity of an item to prove every link in the chain of custody. The basis upon which this second contention is advanced relies on the judgment of the Full Bench of the Supreme Court in Young v The Commissioner for Railways [1962] SR (NSW) 647. According to the Commissioner that judgment concerned the issue of proof of the blood alcohol level of a deceased person by adducing evidence of the analysis of the sample taken by a doctor during the autopsy and later handed in a labelled jar to the Coroner's Department and after that to a Health Department analyst. Brereton J considered two methods of establishing that the blood sample taken by the doctor was the same sample analysed by the Health Department analyst. His Honour said (at 651):

Where it is necessary to establish that an article received by one person is identical with an article despatched by another, there are two ways of doing so. The first is to trace the article from hand to hand and to do so it is usually necessary to call every person who had it in custody from the point of origin to the end of its journey. The second method, possibly not available in criminal trials where this sort of problem most commonly arises because it involves some element of uncertainty, is to identify the object received with the object despatched by its physical characteristics. It might perhaps be possible to call a witness who had seen the article in both places to say that the one received was identical to the one sent. It is also, I think, permissible to elicit a physical description from the sender, a similar description from the receiver and then to invite the jury to consider whether the points of resemblance are sufficiently distinctive to enable them to conclude that the article received was identical with the one despatched.

45 Later in the judgment (at 653) Brereton J expanded upon the second method of proof:

It is clear that an article which is itself not sufficiently distinctive to be capable of identification, may be made identifiable by the attachment to it of something else which is identifiable. There were no proven significant features about the bottle or its contents, but if there were attached to it something positively identifiable, then it could perhaps be said that there was evidence of identity of the composite article; that is to say, the labelled bottle.

However, in order to determine whether in this case the label provided such evidence it would not be sufficient simply to establish what was written on it was identical with what [the doctor] wrote on the label re attached to his sample. It is necessary to consider whether the label was itself distinctive and not one of many such labels attachable to any bottle regardless of contents.

46 It emerged in the facts before Brereton J that the label on the jar containing the blood sample was not produced in evidence and the trial judge had rejected oral evidence as to its contents. No evidence had therefore been adduced at first instance which could have identified the vessel (the jar) containing the blood sample. The doctor who originally took the blood sample was not permitted in evidence to say what he had written on the label. The Health Department analyst could not therefore give evidence as to the results of his analysis because there was a "breach in the chain of identification". The matter went on appeal to the High Court: Commissioner for Railways (N.S.W.) v Young (1962) 106 CLR 535. Windeyer J commented on the state of the evidence in relation to the issue of the continuity of the blood sample (at 558):

As the evidence stood in this case what was written on the label could not establish what was in the bottle even if the bottle had been produced. Counsel for the appellant argued that McDonald could have been permitted to say what was written on the bottle the contents of which he examined if only Doctor Sheldon had been permitted to say what had been written on the bottle into which he had put blood of the deceased. That, I have no doubt, is so. If the writings corresponded the jury might, in the circumstances, infer that the blood that McDonald examined was the sample that had been labelled and sealed at the autopsy. I do not agree that to enable the jury to infer identity any greater description of the bottle was required or any exact tracing of its movements and whereabouts from the time it left the morgue till the time McDonald got it. The question was simply: was it the same sample of blood? That would have been for the jury to say, if there were any evidence before them. It was not something that had to be proved beyond reasonable doubt, nor was it necessary that every possibility that it was not the same blood should have been eliminated. The respondent's attitude on this aspect seemed to me quite mistaken.

47 The continuity of the microcassette tape recording is in issue before the Commission in these proceedings. The recording was said by Mr Edlund to be the original record of the conversation between the applicant and himself on 21 May 1997. This is challenged by the applicant. This aspect was of course central to the Commissioner's consideration under s 181D.

48 The microcassette tape recording, on the evidence, remained in Mr Edlund's possession from 21 May 1997 until about 1 November 2000 when it was apparently handed over to the ICAC for analysis. On some undisclosed date the PIC personnel copied the recording, and produced a transcript. This transcript differs significantly at the beginning of the transcribed record from the transcript which Mr Edlund said he prepared of the original recording; as well as from the transcript prepared by Mr Garde. In the PIC transcript the voice of Mr Edlund is recorded as counting from 4 to 10. In addition, the beginning of the conversation is apparently duplicated on a copy of the recording. The counting sequence and the duplication is absent from the other two transcripts as well as from the microcassette tape recording provided to Mr Garde on 2 January 2001. These absences suggest some form of interference with the tape at least inadvertently, by Mr Edlund. The reason advanced in the PIC transcript for the duplication of the first part of the conversation appears on the first page of that transcript as:

[It would appear that the original tape has been removed at this point as the above transcript is repeated again below].

49 In evidence before the Commission Mr Edlund was played one of the copy tapes of the alleged original microcassette tape recording which he said he had made within 1 to 2 days of 21 May 1997. This copy contained the counting sequence spoken by Mr Edlund at the beginning of the recording. He was then asked about the absence of the counting sequence on the alleged original microcassette tape recording at the time it was analysed by Mr Garde in 2001:

DOCKING: Q. I'll best as I can recall what I just played to you on a tape, is you testing the device in the way you have described in the first line of paragraph 18?
A. I can't recall whether I did that or not, or whether that, I don't know if that is on the original tape or if that is on the copy. Do you want me to explain?

Q. I am just wanting you to answer the question. You said you don't know if that is you testing it or not?
A. That is my voice, but I don't know if I am testing the mini recorder or the recorder that was taping the mini recorder the following day.

Q. Another option is when you copied the micro cassette?
A. I am not sure.

Q. Testing on 17 May or testing in the way you described, used a hi-fi at home and made some tapes?
A. Yes.

Q. You are not able to say which is the correct option, are you?
A. No.

Q. Can you tell the Court apart from counting 1 through to 10, how else you say you tested the device on 21 May 1997?
A. I was really testing to see the batteries because I had not used the tape recorder for some considerable time so I turned it on to see if the wheels turned in it and turned it off. I didn't appreciate the importance of what I did in the end run.

Q. Are you now saying you have an independent recollection, you know what that means, of how you tested the device on 21 May 1997?
A. Yes.

Q. And that independent recollection still means that there are two options for the counting. One is you counted and tested it on 21 May 1997 or option 2 you did that when you made the recordings at home using a hi-fi?
A. Yes.

Q. Well, I am happy to play the MFI that Mr Skinner has played to Mr Harrison, just the beginning of it?

DOCKING: Could it be played from zero to 22 seconds and stop there.

Q. Now, no counting appears on the CD. You can assume that is the copy made by ICAC after you produced Exhibit G on 14 July 2005, will you make that assumption?
A. Well, I have already said I don't know if I tested it by saying one, two, three or four or tested that on to the copy, I am just not sure.

Q. Zero seconds to 20 seconds was just played on MFI L. I am told it went to 22 seconds no counting could be heard?
A. Right.

Q. Is this what you did, Mr Edlund, you deleted off Exhibit G the counting?
A. I don't know, I purposely have not purposely deleted anything, and I don't think I have done it accidentally.

Q. You are not excluding that you did it accidentally?
A. Yes.

50 Mr Garde was asked about the absences of the counting sequence on the microcassette tape which he was given to analyse (Ex G in the proceedings) on 2 January 2001:

Q. It was on there to begin with as shown that it was on the TDK or compact cassette, it means it has been removed off the micro cassette, doesn't it?
A. Yes.

51 The reference immediately above to the "TDK or compact cassette" was a reference to one of the purported copies of the microcassette tape made by Mr Edlund. In his evidence Mr Edlund explained that he made several copies of the recording of the 21 May 1997 conversation at his home, on or within 1 to 2 days of that date, apparently using his own equipment. Moreover, according to his evidence he has since misplaced some of those copies and doesn't now recall how many copies were actually made, although he thought he made about four or five copies. In cross-examination he said he had one copy made of the microcassette tape and thereafter made "several copies" from that copy. He was asked during the proceedings if the microcassette tape still contained the entire conversation of 21 May 1997. He said, "as far as I know. I haven't listened to it again". Mr Edlund was then asked further questions about that particular issue. That portion of the transcript is extracted below:

Q. You understand there is a fundamental difference between saying it is the microcassette as opposed to saying it is an original recording which has not been changed, over recorded or tampered with; do you understand that distinction?
A. Yes.

Q. And what was very carefully led from you, does it mean that even if that was the microcassette tape, exhibit G, used you allow for the option that it no longer has the original sounds recorded on it?
A. If someone else has tampered with it, it may not have everything on it.

Q. You know it doesn't have everything on it don't you Mr Harrison - Edlund?
A. If I was Mr Harrison I might answer that differently. I do not know that.

Q. But you can turn to her Honour under oath and say exhibit G has all of the words spoken by you on exhibit G as spoken to you on 21 May 1997?
A. I could if it was played to me.

Q. When is the last time you have listened to it, being the microcassette exhibit G, or any copy?
A. Probably about 1999 I think it would be.

Q. Why then?
A. I can pinpoint the time because I was starting to get sick at that time, and I mean gravely ill, I didn't have the flu or something. And I was quite beside myself that the Police Department had done nothing in relation to my allegation and that Mr Harrison was progressed unhindered in his career, and I was sitting at home twiddling my thumbs. And I was rather obsessed with that and I do remember playing a copy of the tape at some stage during that time when I was fairly sick.

Q. Where is that copy now?
A. I don't know.

Q. You had handed over any copy to the police before 1999?
A. I had made several copies which has been already canvassed here this morning.

Q. Can you answer my question. Any copy provided to the New South Wales Police had already been handed over before you listening to the copy you just described in 1999?
A. I don't understand the question. You said the copy. There were a number of copies.

Q. And not all of those copies have been produced to the Court have they?
A. No, they haven't.

Q. Have you lost some of them?
A. I think I have. I can't find them.

Q. Or did you dispose of them because it would have exposed you as having edited the tape after that meeting on 21 May 1997?
A. Absolutely not.

Q. Let's now attend to the question. When you listened to this copy in 1999 you had already handed over a copy or copies to the New South Wales Police?
A. I had.

Q. Do you say after this listening to a copy on 1999 you ever handed over any further copy to the New South Wales Police?
A. Not to the New South Wales Police I didn't, no.

Q. Who, by name are you saying after 1999's listening by you to the copy did you hand over a copy to?
A. From memory I think I handed a copy to my solicitor David Tyler of JC Walsh and Co.

Q. Is that the only person you say after your listening in 1999 that you handed over a copy to?
A. I think I may have handed a copy to Inspector Douglass.

52 In the evidence that followed Mr Edlund recalled those persons to whom he had given copies of the microcassette tape recording. The copy that Mr Edlund thought he may have handed to Inspector Douglass, he said was handed over sometime in July 2000.

53 The evidence in these proceedings also revealed that Mr Edlund lost the original recording device used to record the 21 May 1997 conversation. This device therefore was never tested or otherwise examined by any independent party. The significance of this omission will be explained later in this decision. During his evidence Mr Edlund was shown another recording device. A label affixed to that device contained the words:

Do not use this tape as it chewed up a minute or two of the Harrison tape when I tested it the evening of 4 July 2005. The tape wouldn't rewind so I rewound it manually.

54 The tape referred to on the label was according to Mr Edlund the microcassette tape alleged to contain the original 21 May 1997 conversation. This tape as earlier observed had been returned to Mr Edlund following the ICAC analysis by Mr Empson. Mr Edlund said he wrote the message on the label shortly before he produced the microcassette tape of the conversation under summons. He explained in his evidence his reasons for doing so:

Q: What does it refer to when you say "I tested it the evening of 4 July 2005"?
A: I was going to listen to the tape again, because I don't know where I've got the copies, so I started to tape it, but within a very short time I realised the tape was being chewed up. So I stopped and rewound it.

Q: I rewound the tape manually. What do you mean by that?
A: I stuck a pair of scissors in and I turned the wheel to draw the tape back out and it straightened out.

Q: Sorry, just to be very clear, you stuck scissors into where?
A: Into the wheel, one of the wheels of the two tapes.

55 This activity constituted the second occasion when Mr Edlund may have interfered with the microcassette tape and thereby damaged the integrity of the recording.

56 It is apparent from this evidence that a continuous and unbroken chain of custody of what is alleged to be the original recording of the 21 May 1997 conversation can not be established. It could not be said with any reasonable degree of satisfaction that both Mr Empson and Mr Garde had an accurate record of the 21 May 1997 conversation when the microcassette tape was presented to them for analysis. The integrity of the recording was compromised from the moment Mr Edlund placed the microcassette tape into his home equipment to make copies. During this process the recording was altered as confirmed by the PIC transcript. In addition, Mr Empson conducted a cursory examination of the microcassette tape. The respondent contends that this was a preliminary examination only. This is surprising especially in light of the actions of the police investigating Mr Edlund's allegation against the applicant by returning the microcassette tape to Mr Edlund in the middle of the investigation. That investigation concerned serious allegations of misconduct against the applicant that were strongly disputed by him. The absence of the counting sequence on the microcassette tape recording when it was analysed by Mr Garde suggests interference with the recording, inadvertently or otherwise, by Mr Edlund.

Reliability of the microcassette tape recording

57 All of the matters which I have considered above are also relevant in my opinion to the issue of the reliability of the microcassette tape recording as an accurate record of the 21 May 1997 conversation. I adopt my analysis and findings concerning the issue of continuity in my analysis here in relation to the reliability of the recording.

58 In addition to those matters that I have already considered above, there are a number of other indications which in my opinion affect the reliability of the recording. There were, for example, discrepancies between the accounts given by the applicant and Mr Edlund of the conversation. There were also found to be discontinuities in the record of the conversation, for example, Mr Garde noted two discontinuity points (anomalies) at the end of the recording at the precise point where the threat was alleged to have been made.

59 The applicant in submissions points to numerous inconsistencies in the accounts given by both parties to the conversation. I intend to mention a few by way of illustration. First, the applicant said in a record of interview that during the conversation Mr Edlund's hands on occasion went in and out of the pockets of a leather jacket he was wearing. The applicant surmised from this activity that at the critical time when the threat was issued Mr Edlund may have put his hand over the microphone. Mr Edlund, on the other hand, maintains that he secreted the listening device inside an A-4 size black leather folder which he had either on his lap or had placed on the floor. Secondly, at the end of the conversation Mr Edlund said "Allright, thanks for talking to me". According to Mr Edlund he then opened the door in order to leave the room. He then saw Inspector Connor who greeted him. On the tape recording, however, no sound consistent with opening a door can be heard. This suggests, according to the applicant, that the recording had been edited at that point. Thirdly, there are two anomalies (discontinuities) appearing at the end of the conversation at the point where the applicant alleged he was threatened by Mr Edlund. Both these anomalies are described in the PIC report as "unintelligible", and in Mr Garde's transcript as "indistinct". Mr Garde conceded in cross-examination that he did not provide an explanation for the presence of the anomalies. Indeed, in his report he did not advert to them at all. Mr Garde's evidence was, however, that a discontinuity (identified in his transcript as "indistinct") in the recording may be indicative of a possible edit point. The gap in time between the words "Allright, thanks for talking to me" followed by the first discontinuity, and then the voice of Inspector Connor saying "John" is three seconds. The applicant submits that this was insufficient time for Mr Edlund to have walked from where he was standing in the office, open the door into the foyer area (at which point according to the applicant Mr Edlund lent backwards) and utter the implied threat.

60 Whether or not in this last mentioned illustration 3 seconds was sufficient time, it was in my view worthy of further investigation. It was an anomaly in the recording at the precise point when Mr Edlund was alleged to have uttered the critical words. It is unfortunate that Mr Garde's attention was not directed first to the fact that a threat was alleged to have been made during the conversation, and, secondly to that part of the recording where it was alleged to have been made. The presence of discontinuities in both the PIC and Garde transcripts may well have, if Mr Garde had been informed, been subjected to closer analysis. All of these matters to which I have referred in my consideration of the issues of continuity and reliability of the microcassette tape recording, including Mr Edlund's tampering (I use the word here in a neutral sense) of the recording on probably two occasions, should have alerted those persons investigating the allegations to the importance of adopting a cautious approach to the contents of the recording and of taking careful and precise steps to confirm its accuracy or otherwise.

61 The accuracy or authenticity of the recording could only be ascertained by experts in tape authentication, provided such persons were in receipt of the necessary instructions. In my opinion this did not happen. Mr Empson was not qualified to give an opinion on the authenticity of the recording and Mr Garde's analysis was unsatisfactory, in my view largely because his instructions were not sufficiently comprehensive. As a result the material before the Commissioner which formed the basis for the decision to remove the applicant was inadequate, in relation to the critical piece of evidence against the applicant.

62 I turn now to consider the evidence of Mr Empson and Mr Garde.

The expert evidence

63 Mr Empson, an employee of the ICAC working in the Technical Services division was given the microcassette tape recording on 8 November 2000 for the purpose, he says, of "verification". He digitised the signal and stored it on a computer for analysis. He produced, on the same day, a half page report consisting of four short paragraphs. It is useful to reproduce Mr Empson's report in full:

1. Technical Services received a microcassette tape for verification on Thurs 2nd Nov. 2000. The tape was a Realistic MC-90 with the identification No. 52902A7 on the spine and the letter "H" on side B.
On receipt I removed the safety tabs from the tape to prevent accidental recording and played it on our player. The signal was digitised and stored on our computer work station for analysis.

2. When listening to the tape the content appears to be two males talking about police business. When analysing the stored waveforms there are definite start and stop switching pulses at the correct places and although there are various clicks and pops during the conversation they do not match the signature pulses and the continuity of the conversation is not altered.

3. In my considered opinion the tape has not been edited or tampered with.

4. Submitted for your information and subsequent report the NSW Police Service.

64 The report it may be readily observed fails to indicate Mr Empson's qualifications, if any, in audio tape authentication. It also fails to indicate whether Mr Empson had any experience in audio tape authentication. It emerged in evidence before the Commission that Mr Empson had neither the necessary qualifications nor experience. Nor did he have the requisite specialised knowledge upon which to base his opinion that the recording had not been edited or tampered with.

65 The Commissioner through his counsel, in submissions before the Commission, asserts that Mr Empson's analysis was "preliminary" or a "pre-emptive review". If this were so, as I observed earlier, the actions of those investigating the allegations against the applicant in handing the microcassette recording back to Mr Edlund after it was analysed by Mr Empson are surprising and, I would add, at odds with an intention to conduct a preliminary review.

66 The applicant in the proceedings before the Commission called Dr Jo Tibbetts, an electrical engineer. Dr Tibbetts produced a report which evaluated the reports of Mr Empson and Mr Garde. Dr Tibbetts' curriculum vitae shows that she is highly qualified as an expert in the field of audio tape authentication. In her report Dr Tibbetts made the following observations on Mr Empson's report:

Appendix B contains Mr Empson's Report titled "Tape Analysis" that is referred to in this analysis of the Validity of Technical Documentation.

This report is not in the format that would be expected of a scientific investigation.

Mr Empson stated that he received 'the tape for verification' but did not define what verification means. Mr Empson gave no specifications of equipment or methods used to play or digitise the recording. Mr Empson gave no specifications of side of the tape or location of the recording that was investigated. Mr Empson stated that he 'analysed the stored waveforms' but doesn't specify what analysis was done. Mr Empson stated that there were 'definite start and stop switching pulses at the correct places' but doesn't specify quantitatively their position or characteristics or how they were identified. Mr Empson referred to the 'signature pulses' as if they were the 'start and stop switching pulses' but he would need to test the recorder of the tape to determine if what he was seeing matched the signature of the proposed recorder. Mr Empson referred to 'clicks and pops' but he gave no indication of further investigation to determine their characteristic and hence potential source. Mr Empson stated that the 'continuity of conversation was not altered' but did not undertake the thorough investigation required to support

The main failing in this report as a scientific document is that the scientific method of hypothesis, experiment, analysis, and verification does not appear to have been adhered to and certainly was not documented in this report. The second failing of this report was that no valid theory or practical information was provided to enable it to be verified by a scientist. The third failing was that the technique that appeared to be selected was based on assumptions that may not be valid.

This report by Mr Empson is easy to follow by a layperson but it does not conform to the norms of scientific reporting and it is not scientifically valid or conclusive. In other words the conclusions were not substantiated in his report.

In summary this report is not in an acceptable format expected to represent a scientific investigation. The procedures used were not specified. Assertions made were not referenced. Assumption, conjecture and unjustified assertions were made to derive most of the conclusions in place of scientifically derived and tested fact. There was no scientific reasoning behind the conclusions obtained; as the scientific method apparently was not used.

67 Despite the serious shortcomings in the report, as illustrated by Dr Tibbetts' commentary extracted above, and not withstanding Mr Empson's lack of qualifications and experience in the field of audio tape authentication, it seems the Commissioner in deciding to remove the applicant attached weight to Mr Empson's conclusion that the recording had not been edited or tampered with. In the Statement of Reasons which has been set out in full earlier in this decision the Commissioner says:

The tape of the conversation was examined by Mr Empson on behalf of the Independent Commission Against Corruption. He concluded the tape appeared to be authentic and there was no evidence that the conversation recorded had been edited or altered in any way.

68 Mr Garde was provided with the microcassette tape recording for analysis on 2 January 2001. This was after the microcassette tape had been returned to Mr Edlund, following Mr Empson's analysis at the ICAC. His instructions were set out in a memorandum signed by Inspector Douglass, on 2 January 2001. This memorandum has been produced earlier in this decision.

69 The memorandum does not advise Mr Garde that the recording was alleged to have been tampered with by reason of the apparent absence from the recording of an implied threat said to have been made by Mr Edlund. Nor does the memorandum indicate the particular point in the recording that the impugned conversation containing the threat was alleged to have taken place.

70 It was largely accepted by the parties that Mr Garde, an electrical engineer, was qualified to analyse the microcassette tape recording with a view to testing its authenticity. Dr Tibbetts however appeared to have some reservations about his expertise. She commented:

In summary: although Mr Garde has extensive experience in Electrical Engineering and is highly regarded in his field; he has not indicated in his CV or report that he has the level of specialised expertise that is necessary to enable him to effectively carry out this type of investigation. This kind of experience in Information Source Credibility, Speech Signal Processing or Speech Science would be essential to counteract his lack of formal postgraduate (PhD) education and training in this specialised area.

71 Mr Garde produced a four and one half page report. In that report he identified a number of discontinuities in the recording which he said could be indicative of editing points. Although, as earlier mentioned Mr Garde identified two discontinuities in the transcript he later prepared of the recording, at the precise point where the threat by Mr Edlund was alleged to have been made, he provided no comment on any of those discontinuities.

72 His conclusions on the last page of the report are set out below:

An MC-90 microcassette tape containing a recording of a conversation between two males was examined. The recording was of only average quality, presumably because it was made under surreptitious circumstances. It is normal for such a recording to contain noises and other artefacts not present in professional recordings. It was found that at least a large portion of the recording was authentic even though some possible edit points were identified. The most significant possible edit points were called recording discontinuities. If the recording has in fact been edited it is likely that the editing consists of the removal of part of the original recording at those points. The amount removed is likely to be limited otherwise the conversation would become disjointed. In this situation, and with the possible editing limited to so few edit points, the information contained in the remaining material is unlikely to have been changed by the editing process. That is, while some information may have been edited out, what remains is likely to be reliable, unaffected by the editing.

73 In his evidence before the Commission Mr Garde explained the methodology he utilised in testing the microcassette tape. He said he first undertook a visual examination and then underwent a procedure called "critical listening". He also maintained that he performed wave form analysis although there is no mention of any such analysis in his report. Mr Garde also agreed in cross-examination that Inspector Douglass did not draw his attention to any particular part of the recording. As I have earlier observed, the failure to do this meant that Mr Garde would not have specifically focused on that part of the recording where the threat was said to have been made. This is unfortunate as it might have resulted in a more thorough analysis of that section of the tape, or even of the tape as a whole.

74 Mr Garde also said that he was not provided with the recording device on which the alleged original recording was made. He was shown an article by an acknowledged expert in the field of tape authentication, Mr Steve Cain. In that article Mr Cain states that it is, "essential in all tape authentication exams to obtain the original recorder and tape, as copies cannot normally be authenticated". Mr Garde agreed with the statement.

75 Mr Garde's attention was also directed in cross-examination to his identification of the two anomalies in his transcript at the end of the recording. Mr Garde's response, that he had never provided an explanation for the anomalies, is recorded in the following exchange during cross-examination:

Q. And you have never provided any explanation have you as to why there is two places that are unintelligible at that point in the recorded conversation have you?
A. No.

Q. And you provide no explanation even now why you record in your transcript adopted in this court you have two indistincts?
A. Right.

Q. You can't provide any explanation?
A. What sort of explanation are you wanting me to provide?

Q. You cannot provide any explanation why in each of those two places what is captured on the tape you tested is unintelligible?
A. Yes. I don't understand what is on the tape at those points is what I am saying.

Q. In your report you provided no explanation why at those two points what was captured is unintelligible?
A. No, I didn't provide any other reasons why any other indistincts in my transcript was why it was indistinct.

76 Dr Tibbetts in her report provided a lengthy commentary on Mr Garde's report. Her conclusion is set out in full below:

Although Mr. Peter Garde is a highly respected and senior Professional Electrical Engineer, he has not shown in this report titled "Integrity Examination of Recording" that he has the specialised technical and speech science expertise that is required to effectively and independently carry out a forensic Information Source Credibility process.

The report produced by Mr Garde is not suitable as primary technical documentation on Forensic Information Source Credibility or Audio Tape Authentication because it does not follow the expected format of scientific reporting. In his report, Mr. Garde failed to substantiate the methods he used either academically or scientifically. He also failed to define the procedures he used; practically, scientifically or mathematically. He also failed to specify important parameters implicit in the procedures he used and implicit in processing speech.

Mr Garde appeared to select a procedure that is part of a small subset of preliminary tests involved in information source credibility without consideration of current methodology used in Forensic circles or of world's best practise.

The main failing in this report as a scientific document is that the procedures used were not specified, and especially not to the degree that would enable a fellow scientist to replicate them. The second failing was that the scientific method of hypothesis, experiment, analysis, and verification does not appear to have been adhered to and certainly was not documented in this report. The third failing of this report was that assumption, conjecture and unjustified assertions were made to derive most of the conclusions in place of scientifically valid and tested fact.

These and other discrepancies in Mr. Garde's documentation, procedures and results, that are outlined in the body of this report, have lead me to conclude his investigation was inadequate.

In summary, the report titled "Integrity Examination of Recording" by Mr Peter Garde is not suitable as a scientific report on ISC or indeed any scientific investigation. The procedures used were not specified. Assertions made were not referenced. Assumption, conjecture and unjustified assertions were made to derive most of the conclusions in place of scientifically derived and tested fact.

There was no scientific reasoning behind the conclusions obtained as the scientific method apparently was not used.

The treatment of ISC theory in this report is non existent and not academically valid in its presentation. Referencing was not included for the assertions made. Appropriate methods were not presented, discussed or justified. Decisions were made on the theoretical approach without authoritative justification. There was no specification in the report of a valid theoretical approach to ISC being selected or followed.

The implementation specified in this report is not at an acceptable level for a scientific investigation. Scientific Methodology appeared not to be used. Assertions were not backed up with scientific testing or authoritative references. Mr Garde appeared to use a very crude inconclusive listening technique without valid further investigation to come to his conclusions about tape authenticity.

It was beyond the scope of this investigation to check the validity of Mr Garde's result and conclusions but the methods he appeared to use to identify discontinuities and anomalies in the tape were very crude and not reliable to any scientific standing. That these anomalies were not investigated further is a serious lapse in Mr Garde's investigation.

Note that if Mr Garde's conclusion from his report, that discontinuities were found that could indicate potential edit points, is correct then his findings are that whether tampering occurred on that tape is inconclusive using Mr Garde's methodology. A police report on 16/07/01 stated that further consultant with Mr Garde indicated that he had altered his conclusion to say the tape had not been tampered with. If Mr Garde did say this then where is the scientific testing that produced this different conclusion. Until the existence of discontinuities is explained scientifically and the tape and equipment thoroughly and scientifically tested; no definite conclusion can be derived about the validity or integrity of the tape in question.

77 Dr Tibbetts concluded that Mr Garde's report was inadequate, his methodology "very crude and not reliable to any scientific standard" and, his findings as to whether tampering occurred, inconclusive. In the proceedings before the Commission Mr Garde was asked in re-examination about his style of preparation of an expert report in the context of Dr Tibbetts' criticisms. He said:

I think this is something that changes over time. I think probably in my more recent reports I'm getting towards Dr Tibbitts' direction, shall we say; but this is - one reason for this is now, of course, you simply press a button and the form pops out and it takes you two and a half seconds, whereas five years ago you were just moving out, I suppose, of dot matrix printer technology or low resolution laser technology.

78 This response seems to be a concession from Mr Garde that his recent reports are more in conformity with Dr Tibbetts' views of what constitutes a scientifically valid technical report. The fact that techniques of tape authentication have improved over the last 5 or so years does not necessarily provide support however for an assertion that the analysis performed by Mr Garde in 2001 was nevertheless adequate. It should be emphasised here that Dr Tibbetts did not analyse the microcassette tape recording. The evidence suggests this was because of prohibitive cost and time constraints. Dr Tibbetts is however highly qualified in the field of audio tape authentication as her curriculum vitae discloses, and, in my opinion her observations on the methodology used by both Mr Empson and Mr Garde must be given weight. In any event as I have earlier commented both Mr Empson's and Mr Garde's analysis of the recording was compromised by at least one instance and probably two of inadvertent tampering with the recording, by Mr Edlund.

79 Taking all these matters into account I am not satisfied that the analyses of the microcassette tape recording revealed that the recording had not been edited or otherwise tampered with at the point where a threat was alleged to have been made. More precisely, given Mr Empson's lack of expertise and given the inadequacies in the methodologies adopted by both Mr Empson and Mr Garde during their respective analyses, as well as Mr Garde's equivocal conclusions, the only reasonable inference available is that their results were unreliable and inconclusive. At some stage during the course of the investigations into the allegations against the applicant it seems, for reasons not explicable to me, that an initial view that the expert analysis was inconclusive, changed and the final conclusion presented to the Commissioner in the CCS extracted below was quite different:

As the scientific examination shows that the cassette recording was not edited at the point where Superintendent Harrison claims the threats were issued, it follows that the alleged threats were never spoken.

80 I find, given the material available to the investigators at the time the CCS was prepared and when the Commissioner decided to remove the applicant, that the conclusion that the alleged threats were never spoken was not reasonably available. I make this finding after having taken into account a progress report of the investigation signed by Inspector Douglass on 16 July 2001, in which the Inspector claimed:

Further work on transcript being arranged. In light of responses by Supt Harrison during interview on the 4.7.01 and after consultation with Mr Garde regarding same, integrity of tape not considered to be in question.

81 Dr Tibbetts in her report provided the following comments in relation to the Inspector's claim:

A police report on 16/07/01 stated that further consultant (sic) with Mr Garde indicated that he had altered his conclusion to say that the tape had not been tampered with. If Mr Garde did say this then where is the scientific testing that produced this different conclusion. Until the existence of discontinuities is explained scientifically and the tape and equipment thoroughly and scientifically tested; no definite conclusion can be derived about the validity or integrity of the tape in question.

82 I endorse the comments of Dr Tibbetts. The Inspector's claim should therefore be accorded little or no weight.

83 For the reasons discussed in this decision I find that the microcassette tape recording, which was the central piece of evidence upon which the Commissioner acted to order the applicant's removal under s 181D, was neither reliable nor properly the subject of expert analysis. Early interference with the recording by Mr Edlund, inconsistent accounts of the conversation given by the participants, the existence of discontinuities at the precise point at which the alleged threat was said to have been made, and, the failure to verify the authenticity of the recording by the experts as well as deficiencies in the analysis of the recording, could not have provided the Commissioner with the "exactness of proof" required under the Briginshaw test to justify the conclusion that the applicant had engaged in the five nominated instances of alleged misconduct. Other material before the Commissioner depended upon the reliability of the recording and an adequate expert analysis of the recording to establish to the requisite standard that the applicant had engaged in misconduct.

Lawful interest

84 Given my findings it becomes unnecessary to consider the other issues relied upon by the applicant to show that his removal was harsh, unreasonable or unjust. I do not have to consider, for example, whether Mr Edlund had a lawful interest to record the conversation as required under s 5(3)(b)(i) of the Listening Devices Act, when he covertly recorded the 21 May 1997 conversation. I would add for completeness, however, that I seriously doubt that Mr Edlund could avail himself of the exemption under that section.

85 In a record of interview dated 23 April 1997 between Mr Edlund and Superintendent Hobden of the NSW Police annexed to the CCS, Mr Edlund is informed that an internal investigation is underway into an allegation that an Inspector Matt Casey has been victimised by senior members of the NSW Police as a consequence of his providing information to an inquiry into aspects of management at the Academy. At Q10 Mr Edlund is asked the following question:

I am aware that you were subject of an investigation as a consequence of an anonymous complaint that related to the conduct of Inspector Casey concerning misuse of travelling allowance, inappropriate entires in car diaries and other financial based issues. Can you tell us when you first became aware of that complaint?

Mr Edlund gave the following lengthy response in which he indicated his understanding of the applicant's involvement in the investigation:

Yes, In January and February, 1995 I performed rotational duties at Kogarah Detectives Office and on my return to the Academy in about March that year, Casey was still in charge of the Detectives training and a short time after that he was removed from those duties and the then Inspector Harrison became the Commander of that area. I had met Harrison on a number of occasions in favourable circumstances. I certainly did not expect the type of attitude that he displayed towards me when he arrived here at that time. At the time I was on restricted duties, due to a diagnosis of epilepsy which had affected me somewhat. Harrison's attitude was totally devoid of any consideration and or compassion. He removed me from teaching duties which I had been cleared to perform by the Police Medical Officer, he accused me of hiding plans which I had formulated for a complicated scenario which had been used in the MMI Course. As I said, he forbade me to give lectures and put me in charge of preparing rosters for a team of about twelve people. I found it most inappropriate for a Detective Sergeant to be performing these duties when the teaching staff was short and the course was in disarray. Although seeking an explanation I was never given one. It is now apparent to me that at this stage this man had undertaken an investigation into me and I believe had formed beliefs which caused him to act in this manner. Sometime after that I was at a Hotel with members of the staff and I can remember Detective Sergeant Lawson being there and Detective Sergeant Pegram and others being there. I said "I've been told by someone down at the station (being Goulburn Police Station), that the Royal Commission is looking into travelling allowances at the Police Academy." All the people there broke out into laughter and then told me that I was one of the subjects of that enquiry. It also become apparent that the story was all over the Academy and I was one of the last to know. Some weeks later, I was told by Harrison that on the following Monday I was to be interviewed by IPSU. I said to him "Is this over the travelling allowance?" He said "I don't know what it is about." I said "Well that's funny, because it is all over the Academy and I think you are the person who has told them." This conversation was over the phone and he denied it. I think that was in about June or July that year.

86 At the end of the interview Superintendent Hobden issues Mr Edlund with a formal directive:

You are now formally directed not to discuss this matter with any person that may be involved until our investigation is completed. Do you understand that?

87 Despite this formal directive, Mr Edlund approached the applicant some 4 weeks later in the grounds of the Academy and indicated that he wished to have a meeting with him. Not only did Mr Edlund therefore disobey a formal directive but he also consciously decided to covertly record the conversation during the meeting. The CCS in dealing with the issue states that Mr Edlund was suspicious of the manner in which he had been treated by the applicant and others, in particular, the applicant's decision to withdraw Mr Edlund's computer access without prior notification. Apparently at the same time the applicant had reported to Mr Bradley that Mr Edlund had in fact been notified. The CCS concludes from this:

Sergeant EDLUND believed that his lawful interests were in jeopardy, and relying upon an exemption contained within the Listening Devices Act 1984, he attended Superintendent HARRISON's office around 9am in possession of a micro cassette recorder, which he activated shortly beforehand and secreted it within a leather folder he was carrying.

88 In my opinion the applicant's failure to notify Mr Edlund that his computer access had been withdrawn, and his statement to Mr Bradley that Mr Edlund had been notified, would not, on an objective analysis, justify Mr Edlund's conduct as reasonably necessary for the protection of his lawful interests under s 5(3)(b)(i) of the Act. Mr Edlund was being questioned by Superintendent Hobden in relation to a legitimate police investigation. He acted contrary to the Superintendent's formal directive when he approached the applicant and requested a meeting.

89 I also adopt, as part of my finding that Mr Edlund's covert recording of the 21 May 1997 conversation fell outside the exemption provided in s 5(3)(b)(i) of the Act, the observations of Bryson J, in See v Hardman & Anor [2002] NSWSC 234 in relation to the discretion to exclude evidence improperly obtained or in contravention of an Australian law under s 138 of the Evidence Act 1995:

[27] In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate. If I conjure up for myself what could be expected to happen at the meeting of 10 May 2001 or what could be expected to happen in ordinary and reasonable conduct of persons in this community participating in a business meeting of any kind, I feel no doubt that discovery in the course of a meeting that a secret recording was being made would disrupt proceedings, with a high likelihood that the discovery would lead to the immediate withdrawal of those not involved in making the recording. The view of ordinary reasonable people in Australian society that behaviour of a particular kind is an impropriety is what makes it an impropriety. What the community thinks about secret recordings is, in my view, altogether clear and furnishes the explanation for the enactment of legislation such as the Listening Devices Act, notwithstanding the availability of a quite different view of the significance of making secret recordings.

[28] I understand, both from such events as the enactment of the Listening Devices Act and also from my general understanding of values and behaviour in the community of which I must take notice, that such conduct is not tolerated and is regarded as an extreme impropriety. The nature of the breach of an Australian law and the nature of the impropriety have a part in the weighing exercise and in appraisal of the undesirability of admitting evidence to which subsection 138 (1) refers. I am of the view that the tape is evidence which was obtained improperly and that the transcript is evidence which was obtained in consequence of an impropriety.

90 These comments underscore a community expectation that participants in a conversation held during the course of legitimate business or other professional undertaking are entitled to proceed upon the basis that the conversation is taking place openly and without any apprehension, perceived or otherwise, that it is being secretly recorded. The circumstances in which covert recordings are made, therefore, should be carefully scrutinised before they can be said to fall within the exemption provided in s 5(3)(b)(i) of the Listening Devices Act.

91 As the Commissioner has failed to establish to the requisite standard that the applicant engaged in the five instances of misconduct alleged against him, I find that the applicant's removal under s 181D of the Police Act 1990 was harsh, unreasonable or unjust.

92 In making this finding I have considered the Commissioner's reasons for the decision to remove the applicant as well as the respective cases presented to the Commission by the applicant and the Commissioner. I have also had regard to s 181F(3) of the Act. In the applicant's interest, he has had a long and distinguished career with the NSW Police rising through the ranks to the position of Superintendent. He is held in high regard by his peers. So much has been acknowledged by the Commissioner in the Statement of Reasons. He seeks reinstatement to his former position in the NSW Police for the purpose of obtaining a medical discharge, and to clear his reputation. In relation to the competing public interest which includes the interest of maintaining the integrity of NSW Police I see no impediment to the applicant's reinstatement on the desired terms. His lengthy service with the NSW Police reveals an impressive career during which he achieved a very senior position within the police hierarchy. He has received numerous commendations and awards as a serving member of the NSW Police.

93 Section 89(8) of the Industrial Relations Act 1996 gives the Commission power to make an order for reinstatement under s 89(1) on such terms and conditions as the Commission determines. I propose therefore to order that from the date of this decision he will be reinstated to the NSW Police at the rank of Superintendent, in order to permit him to be medically discharged and to clear his reputation. The applicant requests that, before final orders are made, the parties have the opportunity to confer with the relevant superannuation trustee.

Orders

The Commission makes the following orders:

(1) The applicant is reinstated to the NSW Police at his former rank of Superintendent from the date of this decision on terms not less favourable than those that would have applied to him if he had not been removed from the NSW Police;

(2) Before making final orders in order to give the parties the opportunity to confer with the relevant superannuation trustee I direct the applicant to file and serve short minutes of order reflecting this decision within 28 days.

(3) Liberty to apply at any time is granted to the parties before the expiration of the 28 day period referred to in Order (2) above if any question arises in relation to the foregoing orders.

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LAST UPDATED: 04/10/2006