Hessenberger and Commissioner of Police [2009] NSWIRComm 89 (12 June 2009)

Last Updated: 25 June 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Hessenberger and Commissioner of Police [2009] NSWIRComm 89



FILE NUMBER(S):
IRC 299

HEARING DATE(S):
16 - 20 March and 12 May 2009

DATE OF JUDGMENT:
12 June 2009

PARTIES:
Shane Hessenberger (Applicant)
Commissioner of Police (Respondent)

CORAM:
Marks J


CATCHWORDS: APPLICATION FOR REVIEW OF ORDER REMOVING APPLICANT FROM POLICE FORCE - fresh and independent review of Commissioner’s decision - burden on the applicant to prove removal was harsh, unjust or unreasonable - regard to applicant’s interest and public interest - process adopted by Commissioner - number of allegations against applicant in Commissioner’s reasons for removal - use of improper and inappropriate physical force - conducting a police related activity while impaired by alcohol - failure to report misconduct of another police officer - disposing of potential evidence - permitted police facilities to be used to store alcohol without authorisation - applicant provided response document - procedural fairness - presumed regularity in what was undertaken by the Commissioner in discharge of his obligations - differential treatment - personal and financial loss suffered by applicant as result of removal - public interest - maintenance of the integrity of the New South Wales Police Force - matters considered in the aggregate - application dismissed

LEGAL REPRESENTATIVES
Mr B Docking of counsel (Applicant)
Solicitor
Oates & Smith, Solicitors
Mr M Kimber SC with Mr M Seck of counsel (Respondent)
Solicitor
Henry Davis York, Lawyers

CASES CITED:
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Hosemans v the Commissioner of Police [2004] NSWIRComm 253
Little v Commissioner of Police (No 2) [2002] NSWIRComm 52

LEGISLATION CITED:
Police Act 1990 s181D, s181E, s181F, s181G


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Marks J

Friday 12 June 2009

Matter No IRC 299 of 2008

Shane Hessenberger and Commissioner of Police

Application for review of an order under s 181E of the Police Act 1990

DECISION

[2009] NSWIRComm 89

1 These proceedings are constituted by an amended application for relief filed by the applicant, Shane Hessenberger, who seeks certain orders under s 181E of the Police Act 1990. This Commission is empowered by that provision to review an order made by the respondent, Commissioner of Police, removing the applicant from the New South Wales Police Force under s 181D of the Act.

2 The statutory framework established by the Police Act for the removal of police officers from the force by the Commissioner is set out in s 181D of that Act, which is in the following terms:

181D Commissioner may remove police officers

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

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

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

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

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

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

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

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

(7) Except as provided by Division 1C:

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

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

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

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

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

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

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

3 The order for removal was signed by the Commissioner of Police on 21 February 2008. Having made the order, the notice given to the applicant and signed that day said:

“In reaching my decision, I have carefully considered the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to s 181D(3)(a) of the Police Act 1990. I have also taken into account your written response provided by your legal representatives.”

4 The document also contained the following: “The reasons for my decision are annexed hereto under the heading ‘Statement of Reasons’”.

5 The annexed Statement of Reasons contained some introductory words that, in part, said that the Commissioner had taken into account the grounds set out in a notice issued pursuant to s 181D(3)(a) of the Police Act together with the evidence contained in the Commissioner’s Confidence Submission (“CCS”), which were served on the applicant on 7 November 2007. The Commissioner said that he had also taken into account the applicant’s written submissions in response to the grounds. Furthermore, the Commissioner said that he had “given careful consideration to all the material that has been presented to me in this matter” and then proceeded to provide a number of reasons for his determination. The Commissioner’s reasons appear to relate to a number of “grounds” which were said to be set out in the notice originally given to the applicant.

6 Strictly, the material in the grounds set out in the Statement of Reasons for removal of the applicant is not identical with the grounds set out in the notice given pursuant to s 181D(3)(a). However, I do not in all the circumstances regard this inconsistency as being relevant because the additional material contained in the Notice of Removal is expansive of material that was contained within the original notice given to the applicant.

7 The Statement of Reasons for removal given by the Commissioner is, omitting formal parts, in the following terms:

“I have given careful consideration to all the material that has been presented to me in this matter and provide the following reasons for my determination:

The following grounds, as set out in my Notice to you, refer to your conduct and integrity.

During the evening 16 April 2006, you and several other police officers attached to the Moama Police Station, along with several civilians, attended a gathering on premises adjacent to Moama Police Station. The party was centred around a fire burning in a fire drum. Alcohol was consumed at the party.

During the course of the evening a bus pulled up near the Moama Police Station. The driver complained about a passenger (now known to be Mr SM) who would not get off the bus.

You and Senior Constable Cookson walked off in the direction of the bus. You physically removed Mr SM from the bus. You used improper and inappropriate physical force on Mr SM, and engaged in inappropriate conduct towards Mr SM when removing him from the bus.

You used improper and inappropriate physical force on Mr SM even once you had removed him from the bus (in this regard, even once off the bus, you slapped or otherwise hit Mr SM, and you used a knee strike on him).

You used inappropriate language towards Mr SM, and adopted an approach which was likely to aggravate, rather than calm the situation.

You were charged with Assault Occasioning Actual Bodily Harm under section 59(1) of the Crimes Act 1900. The charge was dismissed when the matter came before the Wagga Wagga Local Court on 25 June 2007.

I note that the Magistrate seriously questioned the manner of approach in the first instance upon Mr SM, that is the first approach that an officer of your standing, taking into consideration ‘time in the police force’, in such a confrontational manner. One could only expect a confrontational response whether you were affected by alcohol or not.

The Magistrate in his comments seriously questioned your psychological state when approaching Mr SM in this manner. In particular the Magistrate commented on the serious language used by you on an on-going basis not only at the scene on the evening, given the consideration to the consumption of alcohol, but language used in the court stating, ‘more appropriately (sic) language would have to be anticipated to be used’.

On 31 January 2008 you provided a written response to the grounds set out in the Notice to you. I have taken into consideration that you deny that you used any improper physical force on Mr SM once you had removed him from the bus and you deny that you slapped or otherwise hit Mr SM or used a ‘knee strike’ on him. I note that you have supplied a typed record of the Magistrate’s findings in respect to the charge against you for Assault Occasioning Actual Body Harm.

In your written response you admit to using offensive language and that you ‘swore’ and were ‘rude’ to Mr SM in requesting him to leave the bus. You state that you regret this particular conduct, claiming that your approach was adopted in line with ‘officer survival’.

However, I consider that there remain grounds on which it would be open to conclude on the balance of probabilities (even taking into account the seriousness of that allegation) that you did use improper and inappropriate physical force on Mr SM, and engage in inappropriate conduct towards Mr SM.

In the circumstances, I have concluded that you breached the New South Wales Police Code of Conduct and Ethics - ‘Statement of Values' and 'Private Conduct' (as in force at the relevant time).

The New South Wales Police Code of Conduct and Ethics (2002 version) - 'Statement of Values', states:

Each member of the NSW Police is to act in a manner which:

• Places integrity above all

• Upholds the rule of law

• Preserves the rights and freedoms of individuals

• Ensures authority is exercised responsibly.

The New South Wales Police Code of Conduct and Ethics (2002 version) - 'Private Conduct' states:

Lawful behaviour while off duty is not of concern unless it brings, or has the potential to bring, discredit to the NSW Police.

All officers have an obligation to act and to be seen to act by the public in accordance with the spirit and the letter of the law including the terms of this Code of Conduct whether on or off duty.

Any private activity which adversely affects your job performance will be regarded as a work-related issue.

Given that criminal charges were pressed against you, even although ultimately dismissed, the provisions of the New South Wales Police Code of Conduct and Ethics - 'Criminal Charges' (as in force at the relevant time) are also relevant.

New South Wales Police Code of Conduct and Ethics (2002 version) - 'Criminal Charges' states:

If a criminal charge is brought against you, a mandatory nomination under s181D (loss of the Commissioner's Confidence) of the Police Act will be commenced. This may result in your removal from the NSW Police. Examples include offences such as dishonesty, assault, unlawful access to or use of confidential information, supply and/or use of illegal drugs offences involving prescribed concentrations of alcohol or driving under the influence of alcohol or other drugs.

- - - -

It has been established that when removing Mr SM from the bus, you were conducting a police related activity while impaired by alcohol.

In your evidence in the criminal proceedings, you stated that, after being asked for assistance by Mr Webb, you "went and did the job" of removing Mr SM from the bus and that, in doing so, you identified yourself as a police officer to Mr SM.

You have also admitted that, at the time that you removed Mr SM from the bus, you were intoxicated.

In the circumstances, I have concluded that you breached the NSW Police Handbook - ‘Alcohol’, which states:

You must not perform your job, visit or remain at work or undertake any Police Service related activity if you are impaired by alcohol.

- - - -

Following the removal of Mr SM from the bus you returned to the gathering around the fire. It appears that Senior Constable Cookson returned a short time after you. It seems that he was carrying Mr SM's bag.

Other witnesses state that Senior Constable Sorensen then took hold of the bag and threw it into the fire. The bag was removed from the fire by another officer. However, it appears that it was again thrown onto the fire by Senior Constable Sorensen and Senior Constable Harper. The bag, and the property in it, was destroyed by the fire.

In your evidence to the Wagga Wagga Local Court, you stated that you saw the bag on fire. Other witnesses have also stated that there was subsequent discussion among those present as to the placing of the bag on the fire.

Whether or not you actually saw who placed the bag on the fire, I consider that you were either aware, or at the very least knew that it was highly likely, that the bag had been placed on the fire by other police officers.

You did not at any stage report to a more senior officer that other police officers may have engaged in misconduct by placing the bag on the fire. This was despite the fact that you appear to have had a conversation with Sergeant Wholohan on 19 April 2006.

In your response to the grounds set out in my Notice you admit that you did not immediately report the misconduct by other officers (in regards to Mr SM’s bag) ‘as I you did not feel comfortable reporting the matter whilst still stationed at Moama’.

You state that you had every intention of notifying Inspector Bowden of the potential misconduct during your first shift at Wagga Wagga Radio however, this did not occur as a search warrant was issued and a search warrant carried out on your home on the night of 21 April 2006.

There are many avenues available to you to report misconduct of police and I do not accept this excuse in regards to the burning of Mr SM’s bag.

In the circumstances, I have concluded that you breached regulation 20 of the Police Regulation 2000 and the NSW Police Code of Conduct and Ethics - 'Statement of Values' and 'Reporting Corrupt Conduct' (as in force as at the relevant time).

Regulation 20 of the Police Regulation 2000 provides:

(1) If:

(a) an allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or

(b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind,

the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report).

The NSW Police Code of Conduct and Ethics (2002 version) - 'Statement of Values' provides:

Each member of the NSW Police is to act in a manner which:

• Places integrity above all

• Upholds the rule of law

The NSW Police Code of Conduct and Ethics (2002 version) - 'Reporting Corrupt Conduct' provides:

Corruption is deliberate dishonesty; deliberate unlawful conduct.

...

You must report suspected corrupt conduct, misconduct, serious mismanagement or substantial waste of public resources.

- - - -

On 19 April 2006, you disposed of the ashes from the fire at a time when you either knew, or suspected, that they might be of interest as potential evidence to officers investigating alleged misconduct on the evening of 16 April 2006. In doing so, it appears that you were assisted by Senior Constable Croker and Senior Constable Harper.

In your evidence to the Wagga Wagga Local Court you have admitted that, on 19 April 2006, you cleaned out the ashes from the fire bucket, placed them in bags and took them to the tip. You also have admitted that, at that time, you were aware that Mr SM's bag had been destroyed in the fire.

Given your experience as a Sergeant of Police, I have concluded that you disposed of the ashes from the fire at a time when you either knew, or suspected, that they might be of interest as potential evidence to officers investigating alleged misconduct on the evening of 16 April 2006.

In addition, it is alleged by Senior Constable Croker that, prior to removing the ashes, you made a statement to him in words to the effect of "We have to get rid of the fire bucket and the remains before anyone has a look at it".

As a result, I have concluded that you breached the NSW Police Code of Conduct and Ethics - 'Statement of Values' and 'Guide to Ethical Decision Making' (as in force at the relevant time).

The NSW Police Code of Conduct and Ethics (2002 version) - 'Statement of Values' (as in force at the relevant time) states:

Each member of the NSW Police is to act in a manner which:

• Places integrity above all

• Upholds the rule of law

• Ensures authority is exercised responsibly.

The NSW Police Code of Conduct and Ethics (2002 version) - 'Guide to Ethical Decision Making' (as in force at the relevant time) states:

When you are faced with a decision which poses an ethical dilemma, you should consider, either alone or in consultation with your supervisor or specialist advisor (Eg Employee Assistance Program, Chaplain, Peer Support Officer), the following questions:

• Is the decision or conduct legal and consistent with government policy?

• Is the decision or conduct in line with the NSW Police's policy objectives and Code of Conduct?

• What will be the outcome for yourself, your colleagues, the NSW Police, other parties?

• Do you have a conflict of interest in making the decision and could it lead to private gain at public expense?

• Can the decision or conduct be justified in terms of the public interest and would it withstand public scrutiny?

- - - -

Following the incident with Mr SM and the destruction of his bag in the fire you encouraged a subordinate officer to be untruthful in the performance of his duty.

It appears that there were a number of people gathering at the party on 16 April 2006 other than just Moama police officers, including a number of civilians.

Senior Constable Croker states that, on 19 April 2006, he had a conversation with you in which you said words to the effect that "if asked there was only the Moama Police at the station for the whole night of the send-off."

Senior Constable Croker states that, later that day, he had a further conversation with you, on his way to Deniliquin Police Station, during which you said words to the effect of "just remember, it was only us there". Senior Constable Croker states that he understood your comments to mean that you wished to "limit the number of witnesses present if an internal investigation commenced".

I note in your response to the Notice that you deny that you encouraged a subordinate officer to be untruthful in the performance of duty and that Senior Constable Croker had misinterpreted your conversation. I do not accept your response in regard to this issue and believe that you did attempt to influence Senior Constable Croker.

In the circumstances, I have concluded that you suggested that a subordinate office, Senior Constable Croker, should be untruthful in the performance of his duty.

As a result, I have concluded that you breached the NSW Police Code of Conduct and Ethics - 'Statement of Values' and 'Guide to Ethical Decision Making' (as in force at the relevant time).

The NSW Police Code of Conduct and Ethics (2002 version) - 'Statement of Values' (as in force at the relevant time) states:

Each member of the NSW Police is to act in a manner which:

• Places integrity above all

• Upholds the rule of law

• Ensures authority is exercised responsibly.

The NSW Police Code of Conduct and Ethics (2002 version) - 'Guide to Ethical Decision Making' (as in force at the relevant time) states:

When you are faced with a decision which poses an ethical dilemma, you should consider, either alone or in consultation with your supervisor or specialist advisor (Eg Employee Assistance Program, Chaplain, Peer Support Officer), the following questions:

• Is the decision or conduct legal and consistent with government policy?

• Is the decision or conduct in line with the NSW Police's policy objectives and Code of Conduct?

• What will be the outcome for yourself, your colleagues, the NSW Police, other parties?

• Do you have a conflict of interest in making the decision and could it lead to private gain at public expense?

• Can the decision or conduct be justified in terms of the public interest and would it withstand public scrutiny?

- - - -

Furthermore you permitted police facilities to be used to store alcohol without authorisation.

It appears from the evidence of various witness that a substantial proportion of the alcohol consumed at the party was held in a fridge in a garage which forms part of Moama Police Station, and that the same fridge had also been used in the past to store alcohol. You admit that you permitted police facilities to be used to store alcohol without authorisation.

When asked whether he had the Commander's permission to store alcohol on police premises, Senior Constable Croker stated that you had advised him that the Commander had knowledge of the existence of the fridge.

I have concluded that you permitted police facilities to be used to store alcohol without authorisation. I have also concluded that you gave other subordinate officers the impression that storage of alcohol on Moama police premises was authorised when this was not the case.

In the circumstances, you breached the NSW Police Handbook –‘Alcohol on Police Premises’, which states (inter alia):

Except at social functions approved by your commander/manager, do not consume alcohol on police premises.

...

Except in connection with your duties, do not take alcohol onto police premises without the permission of your commander.

As stated in my Notice to you I consider all the matters set out above to be serious. I am particularly concerned about your conduct towards Mr SM and your following actions in regard to disposing of Mr SM’s bag.

I am also concerned that your subsequent conduct appears to form part of an overall course of action which had the real potential to frustrate the investigation into the occurrences on the evening of 16 April 2006. I believe that these actions may have been part of a deliberate attempt by you to impede the investigators and make their task more difficult.

In your written response you provide that at the time of the incident you were suffering from symptoms of post traumatic stress disorder which “impeded your ability to remain calm under pressure”. This is supported by various psychology reports provided by Karen Myers and Doctor Gregory Weppner. I have taken these reports into consideration.

My Notice to you advised that it was an inherent expectation that all police will act ethically and in a professional manner whether on or off duty, and that your conduct gave rise to my concern about your ability to behave to a standard which the community and I expect of a member of the NSW Police Force.

Both I, and the community, expect police officers to behave with the highest standards of integrity and conduct. I am extremely concerned that your actions have fallen far short of these expectations.

I find that you have clearly breached the NSW Police Code of Conduct & Ethics and the NSW Police Drug and Alcohol Policy and the Commissioner’s Statement of Professional Conduct.

Having read and carefully considered all the material in respect of this matter and while I have taken into account the many complimentary remarks and awards referred to in your service history, I can see no reasons of mitigation or explanation for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer.

I expect and the law demands that New South Wales police officers will uphold their Solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act: professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty.

I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty.

I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.”

8 The material extracted above refers to the name of the person who was alleged to have been victimised in the incident, but I have referred to him as “SM”. In order to protect that person’s identity I shall use the same reference whenever appearing in these reasons for decision.

9 As I understand the reasons and grounds referred to by the Commissioner in the Statement of Reasons for removal, they concern seven matters which I shall list hereunder:

1) The use of improper and inappropriate physical force on SM and engaging in inappropriate conduct towards him.

2) Conducting a police related activity while impaired by alcohol.

3) A failure to report to a more senior officer that another police officer may have engaged in misconduct.

4) Disposal of the ashes from the fire in circumstances where they might be of interest as potential evidence in investigations of misconduct of other police officers.

5) Encouraging a subordinate officer to be untruthful in the performance of his duty.

6) Permitting police facilities to be used to store alcohol without authorisation.

7) A deliberate attempt to impede officers investigating the occurrences on the evening of 16 April 2006.

The statutory matrix

10 Before commencing an examination of the evidence given in these proceedings, I should first refer to the statutory matrix under which this application is dealt with. The decision to remove the applicant was made by the Commissioner under s 181D of the Act, the provisions of which I have earlier set out.

11 The applicant is entitled to have the decision of the respondent reviewed by this Commission pursuant to s 181E of the Act. There are other provisions of the Act that govern these proceedings, which include, relevantly for present purposes, ss 181F and 181G. These are in the following terms.

181E Review generally

(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant’s suitability to continue as a police officer, as referred to in section 181D (1).

181F Proceedings on a review

(1) In conducting a review under this Division, the Commission must proceed as follows:

(a) firstly, it must consider the Commissioner’s reasons for the decision to remove the applicant from the NSW Police Force,

(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,

(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant’s case.

(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.

(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:

(a) the interests of the applicant, and

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

181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications:

(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,

(b) section 85 (Time for making applications) is to be read:

(i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and

(ii) as if subsection (3) were omitted,

(c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant’s claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,

(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,

(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,

(f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless:

(i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or

(ii) the Commission gives leave.

(2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances:

(a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information,

(b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously,

(c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner’s decision.

The nature of these proceedings

12 I proceed on the basis that I am required, in determining these proceedings, to “make a fresh and independent review” of the Commissioner’s decision based not only on the material before the Commissioner, but on any new evidence which has been admitted for the purpose of these proceedings. (See Hosemans v the Commissioner of Police [2004] NSWIRComm 253 (Walton J Vice-President, Boland and Staunton JJ) at [134].)

13 Furthermore, I am required by s 181F(1) of the Act to consider sequentially the three matters which are therein set out.

14 In proceeding, I am mindful also that the burden of demonstrating that his removal from the police force was harsh, unreasonable or unjust falls on the applicant (s 181F(2)).

15 I shall also have regard to the applicant’s interests and the public interest as required by s 181F(3).

16 Importantly, for the purpose of these proceedings, the applicant has asked that I examine the processes adopted by the Commissioner in and about the formulation and making of his decision to remove him. That the examination of process is a matter which, in appropriate circumstances, must be undertaken was referred to by a Full Bench of this Commission in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52. The Bench (Wright J President, Walton J Vice-President and Boland J) said at [75]:

“75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act. In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]:

193 In my view, the concept of a “review” must at least have the effect of directing the Commission’s attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2). This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree:

‘... it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows:

“... a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ...”

That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.’

194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion. Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd, the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2), also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was “uninformed” (Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

195 As was said by the Full Bench in Bigg (No. 2), the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated:

‘We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.’

Further, the Full Bench stated (at 390):

‘While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.’

198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50.

199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission’s intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458):

‘However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion.’

200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. (emphasis added)”

(Citation of authorities has been omitted.)

The evidentiary material

17 In addition to the applicant, a number of other persons gave evidence in the proceedings. Furthermore, a great deal of documentary evidence was tendered including many statements given by police officers and others to police officers designated to investigate the several matters that occurred and that gave rise to these proceedings, as well as the transcript of the evidence before the Local Court in the criminal proceedings taken against the applicant.

18 I shall now deal with each of the seven matters that were the subject of the Commissioner’s Reasons for Removal, which I have earlier described.

Allegation 1: The use of improper and inappropriate physical force on SM and engaging in inappropriate conduct towards him

19 There are a large number of documents that relate to this matter, which are included in the bundle of documents known as the Commissioner’s Confidence Submission, which I have referred to as the CCS. The CCS are documents which are prepared by officers within the New South Wales Police Force and which are given to the Commissioner for his perusal and consideration at the time that he determines firstly to issue a notice to an officer under s 181D(3)(a) and secondly when he considers whether or not to remove the officer from the police force.

20 The first document with which I shall deal appears to be a summary document prepared internally within the police force which, after referring to details of the applicant, contains a synopsis that is in the following terms:

“On 16 April 2006, Sergeant Shane Hessenberger and several other members of the Moama police, along with several civilians, attended a farewell party for Sergeant Hessenberger on premises adjacent to Moama Police Station.

The party was centred around a fire burning in a fire drum. All police officers were off-duty and consumed varying amounts of alcohol. It appears that the alcohol was stored in a fridge on the premises of the Moama Police Station. The Moama officers in attendance were Sergeant Hessenberger, Senior Constable John Croker, Senior Constable Scott Harper, Senior Constable Phillip Cookson and Senior Constable Wayne Sorensen. Various other persons were also in attendance.

During the course of the evening, it appears that a bus pulled up near the Moama Police station. The bus driver, a Mr Barry Webb, approached the group near the fire. It appears that Mr Webb complained that a passenger on the bus (now known to be an intellectually disable man, Mr SM) would not get off.

By this stage, Sergeant Hessenberger has conceded that he was intoxicated.

Sergeant Hessenberger went to the bus and removed Mr SM. In doing so, it is alleged that Sergeant Hessenberger used improper and inappropriate physical force both in removing Mr SM from the bus and once he had already been removed. It is also alleged that Sergeant Hessenberger conducted himself in an inappropriate manner towards Mr SM, including in his use of language.

Sergeant Hessenberger then returned to the fire.

Senior Constable Cookson retrieved Mr SM’s bag from the bus and also returned to the fire. It appears the Senior Constable Sorensen then threw the bag into the fire. It appears that the bag was then retrieved from the fire by Senior Constable Harper, but then returned to the fire by Senior Constable Sorensen and Senior Constable Harper. It was destroyed.

Despite being the senior officer present, Sergeant Hessenberger did not report the conduct of other officers in destroying Mr SM’s bag in the fire.

An investigation into the incident was commenced on 18 April 2006, with Inspector Wholohan telephoning Senior Constable Sorensen at the Moama Police Station in order to make enquiries about Mr SM’s bag.

On 19 April 2006, Sergeant Hessenberger conceded that he disposed of the ashes from the fire, along with Senior Constable Harper and Senior Constable Croker. It is alleged that, prior to doing so, Sergeant Hessenberger made a comment to Senior Constable Croker in words to the effect of ‘We have got to get rid of the fire bucket and remains before anybody has a look at it’.

It is also alleged that Sergeant Hessenberger encouraged Senior Constable Croker to tell investigators that only Moama police were at the gathering on 16 April 2006 (when, in fact, a number of other persons, including civilians, were present).

On 7 June 2006, Sergeant Hessenberger was charged with Assault Occasioning Actual Bodily Harm under section 59(1) of the Crimes Act 1900. On 25 June 2007, the charges were dismissed at Wagga Wagga Local Court.”

21 There then follows what is called a “Detailed Narrative” within the summary document that sets out the facts with respect to each of the allegations. Those facts are stated in narrative form, with reference to statements made by a number of persons to investigating officers; in some cases they extract material from those statements and refer also to evidence given in the proceedings before the Wagga Wagga Local Court. The statements made to investigating police officers are contained within the CCS and there is also included a transcription of the evidence given by the applicant before the Wagga Wagga Local Court. In this regard, I note that the applicant declined to provide a statement to investigating police officers on the grounds that he wished to avoid any suggestion of self-incrimination, although he did later offer to be the subject of a directed interview. I shall refer to this aspect later in these reasons for decision.

22 I shall now summarise the information contained within the CCS as it refers to this first allegation. There is no controversy that on Sunday 16 April 2006, police officers who were stationed at the Moama Police Station, other police officers and some persons who were not police officers attended an area adjacent to the police station at Moama and adjacent also to the Moama Courthouse where a barbeque and fire bucket had been set up. The purpose of the occasion was a farewell to the applicant who was being transferred to Wagga Wagga. The attendees began gathering between 5:30 and 6pm that evening. Most, if not all, were drinking alcohol, and most of these were drinking full strength cans of Victoria Bitter beer. At about 7:30pm, most of those attending ate a meal that had been cooked on the barbeque. After that, and for about half an hour, there were some speeches and presentations made to the applicant. Some time at around 9pm, a large bus pulled up near the police station. Most of the persons attending the function said that the driver of the bus, a Mr Barry Webb, came over to the area where these persons had gathered. The preponderance of the evidence given by those attending, by way of statements included within the CCS documents, is that Mr Webb said to the persons assembled words to the effect that he was a bus driver and that he had a passenger suffering from a mental disability on board who had nowhere to go but would not get off the bus. The evidence is to the effect that Mr Webb was told by a number of persons that there was no police officer on duty at Moama and that he should go to the Echuca Police Station nearby and they would be able to assist him. The evidence is that Mr Webb did not accept this suggestion (and some say he resisted it). All agree that Mr Webb then lit a cigarette and stayed around the fire apparently waiting for something to happen.

23 Mr Webb in his statement to the police gave a different account. He first noted that he thought that the passenger was suffering from “some type of mental disability”. He stated, however, that when he spoke to the persons around the fire, he was asked whether he had any problems on the bus but replied in the negative and emphasised that all he wanted them to do was find the passenger a bed for the night. Whatever is the correct version of what was said specifically by Mr Webb, the preponderance of the evidence is to the effect that the continued presence of the passenger was a problem for him and that he wanted the passenger off the bus. I emphasise that not all of the persons who gave statements to the investigating police officers, which are contained within the CCS, were serving police officers.

24 There is also consensus that within a few moments of Mr Webb arriving the applicant left the group and walked to the bus and that Senior Constable Cookson followed him.

25 In terms of this allegation, there are only three persons who can directly give evidence about what happened. These are the applicant, Senior Constable Cookson and the passenger on the bus, who is referred to in these reasons for decision as SM.

26 On 20 April 2006, some four days after the incident, Senior Constable Cookson made a statement. He said that he decided to follow the applicant to help him because the bus driver had said that “the bloke was a bit of trouble and not mentally right.” As he approached the bus, he could hear the applicant yelling out “Get the fuck off the bus”, saying this two or three times. He saw the applicant wrestling with the passenger who was resisting his removal from the bus. He said the applicant managed to get SM to the stair area and he pushed him out the bus door, onto Senior Constable Cookson causing him to fall backwards onto the grass. He then saw the applicant drag SM across the road to the driveway of the police station, yelling at him.

27 Senior Constable Cookson then said, “Once the two of them were standing on the grass next to the driveway, I saw (the applicant) slaps this bloke a couple of times to the head area, and kick him in the legs. (The applicant) continued to yell at him, and then walked away back up the driveway.” Senior Constable Cookson said that he had a conversation with SM who said that he wanted to be left alone and then began to walk up the street off into the night.

28 Later in the statement, Senior Constable Cookson elaborated on physical contact with SM by the applicant. He said that the applicant “used an open right hand and slapped him to the side of head. It was like he was giving him a red ear...The strikes were hitting him on the right side of the face. I think he would have hit him about three times...(The applicant) also kneed the bloke a couple of times as well to his upper thigh area.” Senior Constable Cookson said that he was about ten feet away at the time and could see what was happening “pretty clearly”.

29 He said that there was no need for him to render assistance to the applicant because SM was not fighting back.

30 He described SM as being about 180cm with medium to solid build.

31 Senior Constable Cookson was interviewed again on 11 September 2006. This was a “directed” interview that gave some protection to him in terms of its use as evidence in criminal or civil proceedings instigated against him “or any other person connected with this matter.”

32 I do not perceive that there is anything in this statement that impacts upon the version of events previously given by Senior Constable Cookson.

33 The transcript of the evidence of the applicant before the Local Court to which I am about to make reference is that which is contained in the CCS documents. The applicant took issue with the accuracy of the transcript and there is another version that has been marked up by him so as to reflect what he understood to constitute an accurate record of the proceedings in that Court.

34 The applicant said by the time that he went to the bus to endeavour to assist in removing the passenger, he was intoxicated and had had about eight or nine beers. The totality of the evidence is to the effect that he had been drinking 375ml cans of full strength VB beer.

35 The applicant said that when he first saw SM he was towards the front of the bus. He yelled at him to get off the bus but SM retreated about a third of the way down the aisle. He went to the top of the platform and yelled that he was a policeman and told SM to get off the bus. He said that SM replied: “No, you go away.” The applicant said that he then confronted SM, grabbed him by his clothing, turned him towards the front of the bus and started moving him forwards. He said that SM resisted, grabbing hold of the seats. He said that SM was taller than him and that he was “pretty strong”. At the time that SM was at the top of the steps, the applicant saw Senior Constable Cookson at the end of the steps, he took hold of SM and pulled him down which broke the hold of SM on the railing of the steps. He said that Senior Constable Cookson pulled SM from the bus. When the applicant left the bus he said that he tackled Senior Constable Cookson to the ground because he thought that Senior Constable Cookson had used undue force.

36 He then prevented SM from walking back towards the bus and told him to “Fuck off”.

37 During the course of his evidence given in the Local Court on 27 June 2007, the applicant denied a version of events that had been given by Senior Constable Cookson in the Local Court proceedings. He denied that he had struck SM. He denied that he had kneed SM or kicked him and said that after he had got off the bus he had never been close enough to SM to have had any physical contact with him.

38 It was the evidence also of the applicant that Senior Constable Cookson ordinarily wore glasses, but that he was not wearing glasses at the time that the incident with SM occurred.

39 The general tenor of the evidence is that after the incident with SM, the applicant returned to the gathering and made a comment, heard by some of those present, to the effect that he had had to get the passenger off the bus.

40 SM made a statement to police on 22 April 2006. He said that he had been staying with his aunt near Melbourne until Easter Sunday when he went to “the city” and asked for some help at St Paul’s Cathedral where he was given $20. He then caught a train to Bendigo and then a bus to Moama, arriving on the bus at about five to nine pm. The bus driver stopped at the Moama Police Station and whilst he was stopped there, SM said that: “Two drunken strangers entered the bus. I was on the passenger side of the bus at the front near the door. I could tell they were drunk by their tone of voice.” He said that they looked “to me like aboriginals because they were dark-skinned and because the one that talked, talked different to us.” He then said that one of them came onto the bus, grabbed him around the throat with both hands, dragged him out of the seat to the second person, he was dragged off the bus and across the road to the police station side of the road. He then said that the first person who had come onto the bus had knocked his glasses off his face and punched him in the face, in the eye, that his glasses had fallen off and that he was then kicked in the legs three times. He then walked to a house in Moama, which he took to be a safe house where he was taken to Echuca Police Station and then to Echuca Hospital. When he left the bus, he left his bag containing his personal possessions and, in particular, his medication on the bus.

41 In the statement, he elaborated on the injuries that were to his left eye socket, left knee and thigh and the back of his right calf.

42 That is the totality of the evidence concerning this allegation contained within the CCS document.

43 I now turn to the applicant’s response document, which was provided to the Commissioner before he made his decision to remove the applicant from the police force.

44 In the response document, the applicant denied in a general way using improper and inappropriate physical force in removing SM from the bus and denied slapping or otherwise hitting him and denied using a knee strike on him. The applicant admitted that he swore and was rude to SM in asking him to leave the bus and he expressed regret for this conduct but said that it was “in line with officer survival. Moreover, at the time I was suffering symptoms of post-traumatic stress disorder which impeded my ability to remain calm under pressure.”

45 The applicant then referred to the proceedings in the Wagga Wagga Local Court and to the fact that the charges against him had been dismissed and that the evidence of SM had been found to be “unreliable”. He also referred to a finding by the Magistrate that Senior Constable Cookson’s evidence had diverged from a statement that he had previously given to investigating police officers.

46 The applicant then referred to the transcription of the reasons for judgment of the Magistrate, which were contained within the CCS, that he said were of poor quality and that, having obtained the tape of the proceedings and having had the Magistrate’s findings transcribed himself, he invited the Commissioner to read the transcript in its entirety. That transcript of the Magistrate’s reasons was attached to the response document. He said that this more accurate transcription of the Magistrate’s findings presented a relevantly different picture to that contained within the version attached to the CCS. I shall refer to this aspect later in these reasons for decision.

47 The findings of the Magistrate, as set out in [39] of the applicant’s response, were to the following effect:

“Mr Cookson states that Mr Hessenberger, this is in Mr Cookson’s statement, slapped Mr SM at least on three occasions, kicked him but then reduced to a knee or variance of a kneeing. Mr Cookson says he is a person that requires glasses at night. He made a concession perhaps the slapping did not take place, he is certain he did not hear any slapping, made a concession that it could have been that Mr Hessenberger may have been shooing him from the scene using terminology which has been expressed on a number of occasions. With that he says that at first instance it was between seven and ten metres from the incident as occurred. Later in cross examination he placed himself in a position where he was walking toward Mr SM and Mr Hessenberger placing himself presumably between zero and seven to ten metres. One would anticipate that in the early hours of the evening on that street in Moama at night no other persons then the obvious assumption is that if such had taken place some would have heard such a thunderous (sic) (inaudible) taking consideration that at seven to ten metres that there is no evidence that there is evidence that Mr Cookson heard nothing. Of course his level of eyesight is definitely in question that night in terms of kneeing (inaudible) making the observation, Mr Longueville has made it gain by reasonable concession by Mr Cookson that he could not say if there was any contact by reasonable means...

The defence concludes having made the observation as to the evidence given under oath by the police officers and the sergeant. The desire of misfortune and need for protection that police officers who are in a position (inaudible) are placed and may be prudent to the charge Mr Hessenberger faces and I reindicate that the issue of the assault matter is the same. The Crown will find it extremely difficult to establish, based upon the possible change of position by Mr Cookson, or to be generous to Mr Cookson, simple mistake he has made and further in respect to the man the possible change of position of Mr Cookson or possible mistake he has realised he has made.”

48 As is obvious from the above, the learned Magistrate has observed that Senior Constable Cookson has given evidence before him that is contrary to that contained within his statements.

49 The transcript of the evidence given in the Local Court became evidence in these proceedings and the applicant’s case was based in part on matters contained within that transcript.

50 The applicant added that, with respect to the events that occurred on the evening of 16 April 2006, that he believed: “that I conducted myself whilst under pressure, in accordance with my training and to the best of my ability in the circumstances as I perceived them to be at the time.”

51 The applicant’s response annexed a report of a psychologist, Karen Myers, and reports of Dr Gregory Weppner. He said that he had been diagnosed as suffering from post-traumatic stress disorder which was work related, that he had been prescribed certain medication to alleviate his symptoms but that he continued to suffer nightmares, panic attacks, anxiety and depression.

52 The report of Ms Myers is dated 8 December 2007. She said that the applicant was first referred to her for psychological assessment on 27 July 2006. She saw him once in August 2006 and twice in October 2006. She then saw him on seven occasions in 2007, the last being 12 October.

53 When first seen, the applicant had recently been suspended following the police investigation into the incident of 16 April 2006. He told Ms Myers that “the suspension and subsequent investigation was causing him significant distress...”

54 Included within the work history which the applicant gave Ms Myers was a reference to an incident that occurred in October 2005 at the Moama Bowling Club. The applicant was required to confront a young person who was intoxicated and had a knife who first tried to run him over on a motor bike and then came towards the applicant having pulled a knife out of his backpack. Although the applicant was able to disarm this person, about two weeks later he began to “relive the event” and appreciated at that stage the danger that he had confronted. This led him to increasing consumption of alcohol “in an attempt to calm himself”. Eventually, he said, he was drinking ten stubbies a day but at the time when he initially saw Ms Myers he was consuming four to five stubbies a day. It was this incident that, the applicant said, led him to apply for a transfer to Wagga Wagga, which successful transfer was the catalyst for the celebration and the sequelae of which has led to these proceedings.

55 Ms Myers diagnosed a post-traumatic stress disorder with a secondary diagnosis of clinical depression.

56 The applicant also gave Ms Myers a history of two incidents involving the deaths of small children, which he said impacted upon him after the birth of his first child and led to heightened anxiety. There were other incidents that the applicant recalled, including attending a fatality occurring on the rail tracks. He told Ms Myers that when he went to check for vital signs, he had inadvertently pulled the victim’s arm off. He said, “You can never forget something like that.”

57 Ms Myers said that in her opinion the applicant’s symptoms arose due to his exposure to a range of traumatic incidents occurring during his career with the police force.

58 The applicant first saw Dr Gregory Weppner, psychiatrist, on 5 May 2006, having been referred by a general practitioner at Wagga Wagga.

59 I do not find it necessary to relate in detail all of the history given to Dr Weppner by the applicant for the purpose of these proceedings. However, the applicant did tell Dr Weppner about the circumstances in which he became exposed to what must, on any account, be regarded as excessive consumption of alcohol. Dr Weppner said: “Mr Hessenberger told me that he was only an occasional drinker until he attended the police academy where alcohol was cheaply and freely available and part of the culture. They would go out drinking on Thursday, Friday and Saturday night. When he joined the police force, it was routine procedure to go for drinks after each shift. Over the last five years he was drinking up to eight to nine cans of beer and described increasing tolerance for alcohol, since July last year he has been drinking four cases a week. He has now recently managed to reduce it to four cans of XXXX Gold a day.”

60 The reports of Dr Weppner date from 10 May 2006 to 29 September 2007. Dr Weppner diagnosed the applicant as suffering from post-traumatic stress disorder, prescribed a regime of medication and recommended “further psychological input”. The applicant’s problems appear to be related to a variety of matters including work incidents, the stress of the sequelae of the incident of 16 April 2006 and some matters of a family concern.

61 To the extent that Dr Weppner throws some light on the applicant’s state of mind as at 16 April 2006, it is, as expressed in his report of 10 May 2006, that the applicant was “suffering from almost a dissociative state that has been finally triggered by criminal charges on the background of a miscarriage and traumatic events at work, including the investigation of two SIDS cases...”

62 I now deal with the evidence given in these proceedings about this first allegation.

63 Senior Constable Cookson gave evidence in these proceedings. He was taken to the statement that he had given to the investigating police officers, the details of which I have previously set out. He was then referred to the evidence that he had given in the Local Court. There were clear inconsistencies between that evidence and the statements made by Senior Constable Cookson. Apart from some matters of lesser significance, Senior Constable Cookson said in cross-examination in the Local Court proceedings that although he was not wearing his glasses he did see the applicant raising an open hand whilst standing near SM. However, although he was seven to ten metres away, he saw the applicant’s hand go up towards SM’s head but he did not actually see any contact being made. It had previously been put to Senior Constable Cookson that it may have been that the applicant was merely shooing SM away rather than going to strike him. He initially denied that this was the case but under further cross-examination agreed that that was possible.

64 Senior Constable Cookson also agreed that at the time that the applicant’s hand was raised towards SM, SM was facing away from the applicant and with his back towards him. If the applicant had used his right hand to strike SM’s face, it would have struck him on the right side of the face. (This is a significant matter, because photographs show that SM had suffered an injury to the region of his left eye.)

65 Senior Constable Cookson was cross-examined also about whether or not the applicant had kicked SM. He said it was “a knee shot” and not a kick. Senior Constable Cookson elaborated by saying that any reference in his statement made to investigating officers to the effect that the applicant had kicked SM was incorrect. His reference to the use of the knee was a reference to a police manoeuvre that is taught to police officers.

66 In explanation about the inaccuracies that Senior Constable Cookson was referring to in the statements that he originally made, he said that making such a statement “was probably the most difficult thing I have done in terms of policing.”

67 In evidence given in these proceedings, Senior Constable Cookson was asked to explain the inconsistency between the evidence given by him in the Local Court and that contained in his statements made to the investigating police officers. His explanation was:

“I suppose he can only liken it to the fact that as a police officer I have witnessed many assaults, whether I have been in the police car or have been walking, and you can’t – you may see an assault occur but you won’t see the actual contact or you won’t hear the contact being made but you can tell by the actions of the people involved that some conflict has occurred; and I guess you rely on the victim of that assault to say to you, yes, that punch did connect with me. I suppose that is what I am trying to relay there. I can’t say conclusively that the contact was made but, given the force of the blows and the proximity to which I was and the reaction in relation to the when the blows took place, it is not that he didn’t scream, I never said that I think, he made a noise, it was ‘Hey’, or, ‘Oh’ or something along those lines, and that is how I came to that conclusion.”

68 I do not accept the explanation given by Senior Constable Cookson as being credible. In my opinion, the evidence given by him in the Local Court is irreconcilable with the clear statements made by him to the investigating police officers. Even if he was subjected to rigorous cross-examination in the Local Court proceedings (and part of the cross-examination may be regarded in this way), I would not expect a police officer of 14 years experience to have succumbed to cross-examination in the way revealed by the transcript of evidence. This leaves me with the choice of either disbelieving everything said by Senior Constable Cookson or making a determination about which of his versions is more likely to represent the true situation. There is no evidence that Senior Constable Cookson was badgered in any way by those who took the statements from him although he did say in cross-examination in the Local Court proceedings that he found the situation difficult and unpleasant, a reaction that is understandable in all the circumstances.

69 I cannot conceive that Senior Constable Cookson would have any motive to lie to the investigating police officers. He might conceivably have a motive to change his story in the Local Court proceedings, which involved criminal charges being brought against the applicant, with a view to protecting the applicant in some way. However, there is no evidence to support any such conclusion and if I were to proceed on that basis it would involve a certain amount of speculation on my part. On balance, I consider it more likely that the version of events given by Senior Constable Cookson to investigating police officers represents what he knew about the incident.

70 The applicant was cross-examined in these proceedings about the circumstances in which he entered the bus. He said that all he knew was what he had gleaned from what he had understood Mr Webb to have said, namely that there was a person on the bus who was “a mental case” and that he would not get off the bus. In response to this, the applicant said that he went to the bus to get the passenger out. At the time that he entered the bus the interior lights were not on, although there was some light apparently provided by street lighting outside. The applicant was not dressed in police uniform but was wearing casual clothes and a baseball cap. He yelled out to SM in a loud voice and ordered him off the bus, telling him to “Get the fuck off the bus”. He did not show SM any police badge but told him he was a police officer. He did not attempt to engage SM in any conversation, nor did he attempt to discuss with him whether he was prepared to get off the bus and, indeed, what SM’s intentions were generally. He said that it did not occur to him at the time that SM may have been frightened.

The evidence of SM

71 Thus far, I have not referred in any detail to what was said about the incident by SM. The respondent sought to have SM called in these proceedings to give evidence. I rejected the application. No statement of the evidence that the respondent intended to adduce from SM had been furnished to the applicant. Nor had senior counsel conferred with SM concerning the evidence that he was likely to give in the proceedings.

72 Furthermore, documentary material that became evidence in the proceedings was indicative, in my opinion, that it would not be appropriate to permit him to give evidence nor to permit him to be cross-examined on it. I shall review briefly some of that evidence. In a statement to investigating officers, SM said that immediately after the incident, he had rung the doorbell of a home not far from where the incident occurred. He told the occupant that the bus driver had gone to get the police and left the bus door open and he had been bashed by two aboriginals.

73 Soon after, some police who were on duty attended the house where SM was. He told them that a group of males had approached him, he was pushed to the ground and punched in the head at the Moama Police Station and that his wallet, which contained $3, had been stolen. He also said the bus driver had been assaulted by the same group. The attending police formed the opinion that he had “an intellectual disability”.

74 Shortly after SM told one of the attending police that four aboriginal males had grabbed him, pushing him to the ground and punched him, that the bus driver was also there and was assaulted. The attending police officers then drove SM to the Echuca Police Station. Whilst on route, SM told them that he did not have any money when he had arrived in Moama, contrary to what he had previously told them, that the bus driver had not been assaulted, as he had previously told them and that there were only two males that assaulted him, and not four, as he had previously said. SM was taken to the local hospital where he spent the night.

75 On 22 April 2006, SM gave a statement to Sergeant Tishler, which was taken in the presence of one of his carers. It was in the course of that statement that SM described what happened. The description contained some inconsistencies but, in essence he said that a person who looked like an aboriginal because he was dark-skinned and “talked different to us” came on to the bus, grabbed him around the throat with both hands and dragged him out of the seat and off the bus to a second person who also looked like an aboriginal. He said that the first person who had taken him off the bus had punched him in the face, knocking his glasses off and had then kicked him in the legs three times. He was told to go away or he would be beaten some more.

76 SM gave evidence in the Local Court proceedings by way of video link. He said that on the day before he had come from Bendigo to Moama on the bus. He had stayed somewhere else the night before that but “the person whose house he had stayed at had said ‘There’s all voices in my head’ and he started getting mad with me and he told me to leave and I took myself off on the trip.” He had a bag with him that contained clothes, toiletries and, more importantly, medication.

77 The transcript shows that despite counsel for the prosecutor attempting to take SM through his evidence in a careful and structured manner, SM was anxious to get to the nub of what he thought had happened and started referring to having been “dragged off the bus by Shane”, which is clearly a reference to the applicant. There were, not unexpectedly, objections from counsel for the applicant about the prosecutor’s counsel leading SM in terms of his evidence.

78 Although, in hindsight, the evidence of SM bore some basic similarity to information that he had previously conveyed, there were a number of statements that he made in the course of giving his evidence that were clearly inconsistent, at least as to matters of detail. He said, for example, that after he had been attacked outside the police station “a chief of police come along and took me to a house in Moama.” He also said: “There was a group of aboriginals in the police station having a bonfire and they were having their party, good aboriginals, and they were having a party with a bonfire...”. Whether and to what extent SM could have seen what was happening around the fire and that the persons who were attending were “aboriginals” must be a matter of some conjecture.

79 During cross-examination, the difficulties in adducing evidence from SM became even more apparent. He was asked how the bus driver had become hurt. He said: “He got grabbed and the driver told him to drive off in the – the defendant told him to drive off in the bus or else he would steal the bus and drive it around, take the number plates off and drive around Moama and they would get people and take them into NSW and do whatever, I don’t know.” He said later that he had seen the defendant grab the bus driver and threaten him. He also said that he had seen the defendant, whom he knew as “Shane”, in Victoria. He said that the defendant had also assaulted him in another part of Victoria on a Saturday. He said that the Saturday that he referred to was 23 June 2007, being two days before the date upon which he was then giving evidence.

80 Dr Martin Robb gave a report to solicitors acting for the respondent on 28 February 2009. He had cared for SM since 24 April 2008 and had medical records dating back to 2005. He said that SM suffers from “mixed psychiatric illness”, that he was diagnosed with schizophrenia in 1996, he suffers from mild intellectual disability, his behaviour has autistic and obsessive-compulsive traits and that he has behaviour disorder “with poor impulse control with verbal and physical aggression.” Furthermore, SM has “persistent auditory hallucinations”, suffers delusions and has poor impulse control. He said that SM had “excellent communication skills, both expressively and receptively and speaks freely. However, his conversation is affected by his obsessionality and thought disorder...”

81 Significantly, Dr Robb said: “I do not believe that he could accurately recall events from April 2006. His interpretation of the event itself and his recall are likely to be affected by his mental state at the time and during the subsequent period. I do not believe that he could give cogent evidence in court about events in 2006. I believe that an appearance in court and cross-examination would be detrimental to his mental health.”

82 There was tendered into evidence an extract of a report of the Law Reform Commission of New South Wales concerning the circumstances in which persons with an intellectual disability should give evidence in criminal proceedings, as well as a report on the same subject matter prepared by a Committee on Intellectual Disability and the Criminal Justice System co-ordinated by the Criminal Law Review Division of the NSW Attorney-General’s Department. These reports were sought to create some foundation for a critical assessment of the evidence given by SM in the Local Court.

83 Having regard to all of the material to which I have referred, and bearing in mind in particular the opinion expressed by Dr Robb, I do not believe that it would have been appropriate to receive any evidence from SM in these proceedings. Furthermore, I do not believe that it is appropriate to take into account anything that SM may have said to anyone about what happened during this most unfortunate incident unless it has been corroborated by other evidence that is of such a nature that I am comfortable in relying upon it. There is much evidence that has been given in these proceedings, to which I will later refer, which does not fit into this category.

84 Having regard to all of the evidence to which I have referred, I conclude that the applicant did use improper and inappropriate physical force whilst removing SM from the bus. It was improper and inappropriate in that the applicant did not attempt in any way to establish whether it was appropriate to use any force at all in removing SM from the bus. He conducted no enquiries of SM, he failed to engage SM in any conversation and he did not take any steps to ascertain whether SM might in any way pose a problem for him in attempting to coax him from the bus. It is obvious that entering the bus in an aggressive manner, including yelling at SM, might have had the effect of frightening SM, causing him to retreat to the back of the bus. The applicant did not stop to consider whether his actions may have resulted in this type of response. Once it is concluded that the applicant used improper and inappropriate physical force, it is axiomatic that he engaged in inappropriate conduct towards SM.

85 Once having put himself back on duty, although intoxicated, the applicant was required to act as a police officer and the Commissioner was entitled to require him to so conduct himself.

Allegation 2: Conducting a police related activity while impaired by alcohol

86 I have already referred to the evidence concerning the amount of alcohol that the applicant has consumed prior to entering the bus. It will be remembered that he referred to eight or nine drinks, which I assume refers to eight or nine 375ml cans of full-strength Victoria Bitter. This would have been consumed in a period of about three hours. Whether and to what extent that assessment made by the applicant is accurate I am unable to say, although the applicant admitted that he was “intoxicated” at the time that he removed SM from the bus.

87 It is a trite observation that intoxication brings with it an impaired sense of understanding of the reality of one’s circumstances and a lessening of one’s inhibitions.

88 There is other evidence that the applicant was intoxicated. At about 10pm that night, admittedly some time after the incident, Senior Constable Moylan spoke to the applicant who was still at the function. It was clear to Senior Constable Moylan that the applicant was intoxicated.

89 In my opinion, the totality of the evidence is to the effect that, at the time that the applicant conducted the police related activity in attempting to remove SM from the bus, he was impaired by alcohol, as he well knew.

Allegation 3: Failure to report to a more senior officer that another police officer may have engaged in misconduct

90 Before dealing with this matter, it is necessary to refer to the evidence of what happened after SM had been taken off the bus. The applicant and Senior Constable Cookson returned to the function. Senior Constable Cookson told Mr Webb that the passenger had been removed from the bus. Mr Webb said that his bag was on the bus and Senior Constable Cookson returned to the bus and removed the bag. He brought it back with him. He was asked by a number of persons around the fire what he was doing with it and he told them that it belonged to the person removed from the bus. He put the bag down on the ground near the fire. There is evidence from a number of witnesses that one of the officers, Senior Constable Wayne Sorensen picked the bag up and threw it on to the fire. Senior Constable Harper removed the bag from the fire and sustained a burn to his hand whilst doing so. Whilst Senior Constable Cookson was talking to the applicant, someone else threw the bag back on to the fire where it was enveloped in flames and substantially burned.

91 During the course of cross-examination, the applicant conceded that he knew that when the bag was thrown on the fire and destroyed that a crime had been committed. He conceded that it was his obligation as the officer in charge, albeit, in his words “inexperienced” to have established a crime scene and to have done something about the matter. (At that stage, the applicant had been a sergeant for five years.)

92 There can be no doubt that property that belonged to SM and which should have, at the least, been secured so that it might be returned to SM, was deliberately destroyed by a person at the function having originally been placed on the fire by Senior Constable Sorensen and, on the evidence, placed on the fire for a second time. There can be no doubt on the evidence that one or more police officers may have engaged in misconduct as alleged by the Commissioner, and this was well known to the other off duty officers who were at the function.

93 All of this evidence is clear from the material within the CCS.

94 In his response document, the applicant admitted that he did not “immediately” report the alleged misconduct by other officers. He said that he “did not feel comfortable reporting the matter whilst still stationed at Moama.” He said he had every intention of reporting the matter during his first shift whilst working at Wagga Wagga, but this did not happen because a search warrant was issued on behalf of the investigating police and a search was carried out at his home late on the night of 21 April 2006. He said that from that point onwards he was “a suspect and invoked my right to silence.”

95 In cross-examination, whilst giving evidence in these proceedings, the applicant described Senior Constable Sorensen as a “lunatic” and “stand over man” and said that he was concerned for his safety and that of his family if he reported the matter to the police. This was despite the fact that, as he acknowledged, he could have reported the matter anonymously.

96 I do not regard the applicant’s concern about Senior Constable Sorensen as being unbelievable. Senior Constable Croker, in a statement to investigating officers, said that he also had been concerned about reporting conduct of Senior Constable Sorensen, in circumstances where he clearly had regard to possible repercussions.

97 Senior Constable Cookson did, in fact, report the matter a few days later but to senior officers at the Albury Police Station. It is apparent from statements made by Senior Constable Cookson that he had concerns for his own welfare in reporting misconduct of Senior Constable Sorensen and those concerns were exacerbated by a perception that Senior Constable Sorensen had some form of “protection” at the most senior level of the Deniliquin Local Area Command. I am persuaded from the evidence of Senior Constable Cookson that he genuinely had concerns for his welfare and that of his family in reporting the matter. This evidence substantiates the concerns felt by the applicant.

98 However, I am not persuaded on balance that it would have been inappropriate for the applicant to have at least reported the matter anonymously, a process that he conceded was open to him. I find that the totality of the evidence supports this allegation.

Allegation 4: Disposal of the ashes of the fire in circumstances where they might be of interest as potential evidence in investigations of misconduct of other police officers

99 Within the CCS is a statement from Senior Constable Croker about what occurred on 19 April 2006 after he commenced work at 8am that day. During the course of the day, he saw the applicant who was in civilian clothes and Senior Constable Harper at the police station. He said that the applicant told him words to the effect “We have got to get rid of the fire bucket and remains before anybody has a look at it.” Senior Constable Croker took this as a reference to such part of the fire remains as might indicate that SM’s bag had been burnt in the fire. The applicant obtained a shovel from a shed near the police station and three black plastic garbage bags. The applicant then commenced shovelling ashes into the plastic bags and later Senior Constable Croker helped him. He was also assisted by Senior Constable Harper. When each bag was full, the applicant took it away and put it in the rear of his utility vehicle. Three bags were filled in this way and the applicant drove them away from the station in his utility vehicle.

100 Contained within the CCS is a statement of Sergeant Kevin Wholohan who at the time was an acting inspector. He attended the Moama Police Station on 19 April 2006 to make enquiries of the whereabouts of SM’s bag. He saw the applicant who was in plain clothes. He noted the presence of a fire drum on the concreted area near the incinerator located between the police station and the Moama Courthouse and saw piled ash in the fire drum. He did not inspect the fire drum closely at that time but then returned to Deniliquin.

101 After Acting Inspector Wholohan left the police station, Senior Constable Harper noted that Senior Constable Croker and the applicant commenced shovelling out the ashes from the fire bucket.

102 After the applicant left the station in his utility with the three garbage bags of ash, Senior Constable Harper and Senior Constable Croker completed emptying the last ashes from the fire bucket and placed them on a pile of other ashes next to the incinerator.

103 In a statement given to an investigating police officer on 21 April 2006, Senior Constable Croker said that he saw some items in the ashes taken from the fire, which were from the burnt bag. He said “There were the upper remains of some type of aerosol can, there was some small pieces of cloth and half of the frame from a pair of glasses. There was nothing left of the bag at all.”

104 In his response document, the applicant admitted that he had disposed of the ashes from the fire but denied that he “deliberately disposed of evidence or potential evidence.” He said that on the day of 19 April he informed Acting Inspector Wholohan that he intended to clean the grounds and he was not told that the grounds were a crime scene or that they contained potential evidence. He said that he cleaned the ashes from the fire bucket as part of his general concern to leave the station in a tidy condition.

105 In cross-examination in the course of the proceedings, Mr Wholohan, who is now retired from the police force, denied that he had made an inspection of the remains of the fire, denied that he had any reason to suspect that the bag had at that stage been disposed of in the fire, and said that he was merely endeavouring to locate the whereabouts of the bag. He had received evasive information from Senior Constable Sorensen. It was Mr Wholohan’s recollection, and I accept, that he did not have any discussion with the applicant about cleaning up the yard or the police station.

106 In the course of cross-examination, counsel for the applicant pointed out to Mr Wholohan that a statement made by him on 8 June 2006 contained an incorrect date. This error is obvious and was readily conceded by Mr Wholohan. It does not, in my opinion, create any reason why that part of Mr Wholohan’s evidence that is relevant to these proceedings should be put in doubt in any way.

107 I do not accept the evidence of the applicant that at the time that he disposed of the ashes he had no reasonable understanding that the ashes might be relevant to some police investigation. At that stage, he was aware that some enquiry had been made concerning the whereabouts of SM’s bag. Even if he was not so aware, however, he knew that SM’s bag had been unlawfully destroyed in the fire and that the ashes that he was removing contained the remnants of the bag and its contents. Certainly, on the evidence of Senior Constable Croker, there were some physical remains of the contents of the bag of the kind to which I have earlier referred.

108 In my opinion, the Commissioner was correct in forming the view that this allegation had been made out. Of course, if one accepts the evidence of Senior Constable Croker about what he had been told by the applicant, namely that they had to get rid of the fire bucket and the remains before anyone has a look at it, then it is even more clear that the applicant is being disingenuous in endeavouring to rebut this allegation.

Allegation 5: Encouraging a subordinate officer to be untruthful in the performance of his duty

109 This allegation stems from material in a statement given by Senior Constable Croker to an investigating police officer on 21 April 2006. He said that at about 3:30pm on 19 April 2006, he received a police radio message to contact the Commander at Deniliquin Police Station. He suspected that it concerned the function on the previous Sunday night. Before travelling to Deniliquin, he drove to the applicant’s house and spoke to him whilst seated in his vehicle for about 30 seconds. He told the applicant that he had been required to travel to Deniliquin. He said that the applicant told him “Just remember, it was only us there.” He said that he understood that this was a suggestion that he confine details of those attending to police officers stationed at Moama to limit the number of witnesses present if an internal investigation commenced.

110 In his response document, the applicant said that he had a conversation with Senior Constable Croker on 19 April 2006 at the police station and had said something along the lines that “Only police were in the actual confines of the station...” apart from the “Waterways boy”. The applicant said that he said something similar to Senior Constable Croker when he spoke with him briefly at his home, but that he also said on that latter occasion “Tell it how you know it happened.”

111 Senior Constable Croker was cross-examined at some length to ascertain whether or not the words that had actually been used by the applicant were intended to convey the meaning that the reference to police only being present was a reference to police being present within the confines of the police station itself and not in the general area yard where the fire and barbeque were being held. Senior Constable Croker conceded the possibility that the words “within the station” or words to that effect may have been used. It seems to me that he has no independent recollection.

112 In cross-examination, the applicant said that when he had the first conversation with Senior Constable Croker and used the words “only the cops in the station” he was referring to the “station proper” and was not referring to the car park area. That is, he said that he was confining his comments to only police officers being within the police station itself. My impression is that this explanation smacks of a reconstruction after the event. There is absolutely no reason why the applicant would inject into his conversation some comment that would differentiate between the police station proper and the area where the function was being held in terms of whether or not local police were present.

113 However, overall, I am not persuaded on the basis of such evidence as is before me that this allegation has been made out.

Allegation 6: Permitting police facilities to be used to store alcohol without authorisation

114 In his response document, the applicant admitted the truth of this allegation. He said that the alcohol was stored in a shed “which was no longer used for police purposes...There was a fridge in the shed which at times had alcohol in it.” He said that when he first arrived at Moama, the fridge was located elsewhere next to the station and did have alcohol in it. He said that he disposed of the alcohol and informed officers that alcohol was not permitted in the station. Later it was moved to its then present position. He conceded that he may have suggested to other officers that he was going to invite the Local Area Commander to his farewell party and that they may have understood this as permitting the storage of alcohol in the refrigerator.

Allegation 7: A deliberate attempt to impede officers investigating the occurrences on 16 April 2006

115 The Commissioner’s Statement of Reasons refers to conduct after the incident which “appears to form part of an overall course of action which had the real potential to frustrate the investigation into the occurrences on the evening of 16 April 2006.” There is a reference to a deliberate attempt to impede investigations.

116 The establishment of such an allegation requires an assessment of the applicant’s conduct against the background of all of the matters that occurred after the incident. The Statement of Reasons does not contain any analysis that would enable this allegation to be made out. Nor is there any specific material contained within the CCS documents other than matters such as the failure to disclose information to Acting Inspector Wholohan, a refusal to participate in an interview and the like. I am not satisfied that this allegation has been made out.

General matters in response document

117 In addition to dealing specifically with each of the allegations, the applicant in his response document made specific allegations that he had been denied procedural fairness, to which I will return later in these reasons for decision.

118 In addition, the applicant outlined his service in the New South Wales Police Force, which commenced in 1993 when he joined as a student police officer and covered his career. He attached a number of character references and he referred also to the difficulties that he had encountered because of the emergence of his “chronic work related psychiatric condition”. He asked that in the alternative to a dismissal that he be permitted to apply for medical retirement.

Procedural fairness.

119 The allegations made in the applicant’s response document cover the following matters:

a) That the applicant was not provided with all of the documents and material relied upon by the Commissioner, in particular a nominated internal file. I do not apprehend that this matter was pursued by counsel for the applicant in his written submissions. In any event, there seems no evidence that this particular file was before the Commissioner at the time that he determined to remove the applicant from the police force. I reject the notion that there is any relevant procedural unfairness associated with this matter.

b) A failure by the Commissioner to take into account “relevant matters, particularly matters going to my conduct and integrity.” These are matters that I have dealt with in the context of each of the six specific allegations brought against the applicant as contained in the Commissioner’s Reasons for Decision.

c) That the Commissioner had taken into account “irrelevant and unsubstantiated matters” consisting of a synopsis of comments of the learned Magistrate in the Local Court when he dismissed the proceedings brought against the applicant. Detective Inspector Greg Smith had reported that the Magistrate had made a remark to the following effect: “If this were a civil matter, I would have no difficulty in convicting Mr Hessenberger.” It was said in the response document that the Magistrate had made no such statement. With respect, this is incorrect. I have not only had access to the transcript of evidence as reproduced by a private service, but I have also listened to the tape of the proceedings in the Local Court. The Magistrate said: “I would anticipate the Court making a decision in respect to Mr Hessenberger’s culpability under civil standard. He would experience some difficulty.” That part of the tape that is audible supports the material contained within the CCS.

d) There is then a reference to whether or not the Commissioner’s decision “was based on mere suspicion or speculation” and if so whether the procedure “would involve no more than a futile illusion of fairness.” I have concluded with respect to a number of the allegations that they have been made out and that the Commissioner was entitled to rely upon them as having been proven. I take into account, as did the Commissioner, that in considering these matters in the context in which they occurred, it is necessary to ensure that the matters have been proven to the “Briginshaw” standard. Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

e) It was asserted that the CCS “lacks particularity.” Having regard to the material contained in the Commissioner’s Reasons for Decision, which in large measure replicates those in the notice initially given to the applicant, I am not able to discern that there has been any relevant lack of particularity so that it might be said that the applicant was not able to understand what was being put against him and was not able to formulate his response. Indeed, to the contrary, there is a clear narration of facts. I do not apprehend that the applicant encountered any difficulty either in responding to the Commissioner’s Notice or in litigating the matter in these proceedings. Furthermore, there is no “particularity” by the applicant of the manner in which the CCS is said to be lacking in particularity.

f) Procedural unfairness is alleged to have arisen because the Commissioner has not “personally considered all material relied upon” in the process of the issuing of the Notice. I do not apprehend that the statutory regime against which the Notice to Show Cause was issued requires a personal consideration of all of the material by the Commissioner at that stage. The situation is arguably different at the stage that the Commissioner makes a decision to remove a police officer. In any event, this matter does not appear to have been developed further in submissions, and I reject it.

g) The next allegation refers to the failure of the Commissioner to obtain a complete transcript of the Local Court proceedings and to have considered them. In his response document, the applicant said: “I believe that the evidence given during the court proceedings paints a very different picture to that contained in the statements of the brief of evidence...I note that the presiding Magistrate found as a matter of fact that the evidence of a number of witnesses was too unreliable to be accorded any weight...”. Such an assertion can only have substance if the applicant is able to sustain an argument that there was material in the Local Court proceedings and in the judgment of the Magistrate that, if considered by the Commissioner, would have justified a conclusion different from that reached by the Commissioner. I have had access to the transcript of the proceedings and the reasons for judgment of the learned Magistrate and have referred to them where I have considered appropriate in dealing with each of the specific allegations levelled against the applicant. I am unable to conclude that the failure of the Commissioner to have requisitioned a copy of the transcript and to have read it should have brought about any different result in the context of these proceedings, having regard to all of the circumstances that are relevant to their determination.

Applicant’s counsel’s submissions as to matters other than “merits”

120 After the conclusion of the taking of the evidence, the applicant’s counsel made a number of submissions directed generally to assertions that the Commissioner had failed in a number of respects to have complied with his statutory obligations and that the applicant had been denied procedural fairness. I shall deal with each of them in turn.

121 a) That the Commissioner failed to take into consideration the written submissions received from the applicant as required by s 181D(3)(c).

122 Firstly, it was submitted that the Commissioner had failed to take into account a supplementary submission that the applicant’s solicitor had forwarded to the Employee Management Branch by letter dated 13 February 2008. That letter annexed a number of references, many of them from serving police officers, all of which, it may be assumed, spoke in highly favourable terms of the applicant and, where relevant, of the work which he had performed as a police officer. It was common ground that this material was not considered by the Commissioner.

123 S 181D(3)(c) compels the Commissioner to take into consideration any written submissions received from a police officer during a period of at least 21 days within which a police officer is permitted to make written submissions.

124 The evidence in the proceedings is that the original notice to show cause, given under s 181D(3)(a) was dated 7 November 2007. It was responded to by the applicant’s solicitors on 31 January 2008. The response document and the letter accompanying it does not refer to any further submissions sought to be made by the applicant and indeed the accompanying letter is framed on the basis that the response was all that the applicant wished to put.

125 The evidence in the proceedings is that by letter dated 2 February 2008, Senior Sergeant Robyn Forrest had formulated a submission for consideration by the Commissioner as to whether a s 181D removal order would be made. That submission was considered by the Commissioner on 7 February 2008 who determined that the officer was to be removed and the matter was then referred to allow the removal order to be prepared and subsequently signed. The auxiliary response document submitted by the applicant was dated 13 February 2008, well after this process had been undertaken. In all the circumstances, I cannot conclude that the applicant was denied procedural fairness or that the Commissioner in some way breached his statutory duty under the Police Act by not considering this material. Certainly, there was nothing in that material that would have assisted the Commissioner in considering whether any of the allegations levelled against the applicant were made out.

126 The next element relied upon by the applicant in this regard was an alleged failure by the Commissioner to have considered, to the appropriate extent, the response made by the applicant. The actual response document consists of eleven closely typed pages. Annexed to it were a large number of documents, many of which related to the physical circumstances surrounding the Moama Police Station, some of which were medical reports and others of a more general nature. There was evidence in the proceedings to the effect that the Commissioner set aside a period of about one hour each week to consider s 181D matters. The Commissioner considered the response made by the applicant at a meeting on 7 February 2008. The Commissioner was ordered to produce certain diary notes and records of Inspector Pratt, Superintendent McCarthy and himself. They disclosed that on 7 February 2008, the Commissioner considered the circumstances of a number of officers. The paperwork with respect to four of these officers, not including the applicant, consisted of 200, 150, 70 and 100 pages respectively. The evidence produced indicates that the Commissioner made certain decisions with respect to those four officers, presumably within that one-hour period. However, in connection with the applicant, the papers were marked as “retained for consideration”. This is indicative that the Commissioner did not consider the applicant’s response during that one-hour period that day concurrently with the circumstances of the other officers to which I have referred.

127 It was asserted on behalf of the applicant that the Commissioner is personally required to take into consideration the written submissions received from a police officer, as mandated by s 181D(3)(c).

128 I have received from both parties voluminous submissions as to what is meant by the words “take into consideration” and whether there are shifting onuses or burden of proof, the requisite standard to which the Commissioner should be satisfied about any particular matter, the principles of law which apply to the Commissioner’s decision making process and the like. However, in circumstances where there is no evidence about the time actually taken by the Commissioner personally in considering the applicant’s written submissions on 7 February 2008 and in the absence of any evidence that would point to any irregularity in the process undertaken by the Commissioner, or in suggesting that in some way the Commissioner took a particular approach to the applicable law which was not open to him, I proceed on the basis that there is a presumed regularity in what was undertaken by the Commissioner in discharge of his obligations under s 181D(3)(c). In other words, it is impermissible, in my opinion, to pursue the matter by reference to some inquisition or enquiry as to precisely what the Commissioner did absent any material that would suggest or tend to suggest that there was some irregularity of a relevant kind in the process undertaken by the Commissioner. No such evidence exists in the circumstances of these proceedings.

129 Accordingly, I reject this submission.

130 b) The applicant asserted that another aspect of the lack of procedural fairness involved the failure of the Commissioner to take into account the applicant’s previous unblemished police service record and the material contained in a number of character references which he provided.

131 The Commissioner in his reasons said that in determining to remove the applicant, he had “taken into account the complimentary remarks and awards referred to in your service history.” The applicant complained that this was a “formulaic statement” which provided no explanation why those mitigating circumstances were ignored.

132 I have previously referred to the detailed submissions made by each of the parties concerning the obligations imposed on the Commissioner to give reasons, the manner in which those reasons should be formulated and as to whether there should be any exposure of the reasoning process itself. In view of the decision to which I have come as to the disposal of these review proceedings and in view of the opinion that I have reached concerning matters such as the applicant’s prior unblemished police record and the references, which were made available to the Commissioner, it is not necessary that I deal further with this matter.

133 c) The applicant complained that the information available to the Commissioner in the CCS was to the effect that only one charge brought against the applicant had been dismissed in the Wagga Wagga Local Court, namely a charge of common assault. In fact, the prosecutor had agreed at the close of the prosecution case that a charge of assault occasioning actual bodily harm should be dismissed at that stage so that, in effect, the applicant had succeeded in defending two charges levelled against him. I cannot accept that this matter either alone or in conjunction with any other matter is sufficient to demonstrate that in some way, the processes utilised by the Commissioner culminating in the decision to remove the applicant from the police force were tainted. Whether and to what extent SM was assaulted on the bus is but one element of a much larger picture that applies to the circumstances of these proceedings. There is nothing to which I have been directed by counsel for the applicant within the transcript of the proceedings in the Local Court that would, in my opinion, cause the Commissioner to properly have determined that, in all the circumstances, it was not appropriate to remove the applicant from the police force.

134 d) The applicant also submitted that the respondent did not properly take into account medical reports that had been provided, the applicant’s medical condition and that removal precluded the applicant from making an application for medical retirement.

135 I have previously referred to the reports of Karen Myers, the psychologist and Dr Gregory Weppner, psychiatrist. I agree with the respondent’s submissions that there is nothing contained within those reports which is relevant in any way to gaining some insight as to the applicant’s conduct at the time of the incidents which gave rise to these proceedings.

136 Whilst one may have some sympathy for the applicant in that his removal from the police force may now disentitle him from making an application for discharge on medical grounds relating to his post-traumatic stress disorder, the fact is that he made no such application prior to his removal and at the time of the incident clearly regarded himself as being fit for duty. The incidents occurred on 16 April 2006. The applicant knew that the Commissioner was investigating his conduct in connection with the incidents during the course of April 2006. His removal took effect on 21 February 2008.

137 In his Statement Of Reasons for removing the applicant, the Commissioner referred to the assertion made by the applicant that symptoms of post-traumatic stress disorder impeded his ability to remain calm under pressure. He referred to the medical reports and said: “I have taken these reports into consideration.” This comment, stated cryptically, does not really assist the applicant. Nor does the recitation of the assertion that the post-traumatic stress disorder impeded the applicant’s ability to remain calm under pressure. What, more properly, the Commissioner should have included within his reasons was a consideration of whether or not there was any evidence that the applicant’s ability to remain calm under pressure was impeded in some way. I for my part do not regard the evidence as supporting this in terms of the particular incident that occurred on 16 April 2006. If anything, the applicant took it upon himself to respond to a particular situation in circumstances where, on his own evidence, he admitted that he was calm and was not unduly excited. There is simply no evidence available which would allow the applicant’s conduct to be characterised in some way that would attract some sympathy for what he did. I take into account also that he was clearly affected by alcohol, which, as is well known, would have rendered him less inhibited than he might otherwise have been.

138 I agree also with submissions made on behalf of the respondent that it was unnecessary for the Commissioner to deal with a report of Dr Peter Anderson, psychiatrist, dated 30 June 2008 which does not deal with sufficient specificity with any nexus between the applicant’s conduct on 16 April 2006 and any psychiatric condition from which he suffers, at least in circumstances that might have some mitigating effect.

139 e) The applicant also alleged that there was a procedural defect in that there was no independent senior officer assigned to the Local Court to report on the outcome, the reasons for decision and any relevant comments of the Magistrate. Accepting that such an officer was required, in accordance with procedures promulgated by the Commissioner, I cannot see how the failure to provide such an officer could impact in any way on the outcome of these proceedings. The applicant did not attempt to provide any reasoning to support any such contention.

140 f) The applicant submitted that he was never subjected to a Departmental interview and that no action should have been taken against him unless and until that interview had taken place, which could have occurred after the criminal charges were dismissed. However, I do not apprehend that the applicant has asserted that his circumstances have been prejudiced in any particular way other than by his inability to provide information to the investigating police officers at that stage. Any such deficiency was clearly cured at the time that the applicant responded to the Commissioner’s original notice. I can see no merit in this submission.

Differential treatment of other officers

141 As will have been seen, there were a number of police officers who were involved in the incidents which occurred on 16 April 2006. Only the applicant has been removed as an officer. Senior Constable Sorensen retired on medical grounds before any disciplinary proceedings were commenced against him. Some of the others suffered varying degrees of penalty including demotion and loss of increments for a period.

142 It was part of the applicant’s case that in all the circumstances his removal was harsh when compared with the penalties suffered by other officers.

143 There is, in my opinion, a fundamental difficulty in accepting this submission. If it were appropriate to undertake some analysis of the penalty imposed on each of the other officers, it would be necessary to take into account all of the circumstances that pertained to those officers including their previous police record, their co-operation or otherwise with investigating police officers and any relevant background circumstances which applied to them. Furthermore, it would be necessary to undertake a detailed analysis of the part that each of them played in the context of what happened on 16 April 2006.

144 Whilst I recognise that a similar approach might be appropriate in relevant circumstances when considering criminal penalties to be imposed on offenders who participated in the same criminal activity, those circumstances do not apply in the context of these proceedings.

145 Reference to some of the factual matters is sufficient to illustrate this point. The applicant was the senior officer present at the police station. It was he who placed himself back on duty when intoxicated, it was he who was involved in the interaction with SM, it was he who organised the clean up of the remnants of the fire, it was he who disposed of the ashes, and it was he who failed to report the crime committed when SM’s bag was burnt.

146 On the other hand, there is no allegation that the only other officer who was involved with SM, Senior Constable Cookson, behaved inappropriately towards him. In the same way, Senior Constable Cookson did not have any involvement in placing the bag on the fire, he was the first to report the incident and he did not participate in the clean up after the fire. Senior Constable Croker, on the other hand, had no involvement with SM, was involved in cleaning up the ashes but co-operated fully with investigating police officers. Senior Constable Harper tried to remove SM’s bag from the fire although there is some suggestion he may have been involved in assisting Senior Constable Sorensen in putting the remains of the bag back on the fire. Senior Constable Sorensen was, on the evidence, actively involved in the destruction of SM’s bag but he did not participate in the clean up of the ashes or in disposing of the remnants.

147 It will be seen, therefore, that each of the officers concerned was involved in the incident in varying ways. In my opinion, and for the reasons that I have previously expressed, it would be unsafe and inappropriate to make any assessment about the decision to remove the applicant from the police force by reference to the circumstances of these other officers.

The personal economic circumstances of the applicant

148 The applicant adduced evidence of the considerable personal loss both financially and otherwise suffered by him as a result of his removal from the police force. In terms of financial loss, I was told that the value of payments that were made to him if he were medically discharged would be of the order of $480,000. His inability to apply for medical discharge has cost him the opportunity of seeking entitlement to that sum. Furthermore, the applicant’s personal circumstances have suffered including his relationship with his wife and family and, of course, his day to day financial circumstances because of his loss of income. It is obvious that removal from the police force must have devastating consequences for the emotional well being of any police officer, let alone a police officer suffering from the conditions diagnosed in the medical reports to which I have previously referred.

149 It was submitted that these are matters that must be taken into account in determining the outcome of these proceedings, and I shall do so.

Undertaking to resign

150 The applicant sought as an alternative to reinstatement that he be reinstated for the sole purpose of applying for a medical discharge and undertaking to resign upon the determination of that application, whether successful or not. It was said that this is a matter that should be taken into account. The respondent submitted that there was no power to order reinstatement for the limited purpose of allowing an application to seek a medical discharge coupled with an undertaking to resign upon the conclusion of that application, whether successful or not. It was said that this does not constitute reinstatement as understood in the context of well-accepted authorities in this area. In view of the decision that I have reached for the determination of these proceedings, it is not necessary that I deal with this matter.

Consideration

151 I have earlier dealt with each of the grounds and reasons advanced by the Commissioner in support of his decision to remove the applicant from the police force. I have concluded, for the reasons that I have given, that the Commissioner was justified in determining that the applicant used improper and inappropriate physical force on SM and engaged in inappropriate conduct towards him. Furthermore, I have concluded that the applicant conducted a police related activity while impaired by alcohol, that he did not report to a more senior officer that other police officers may have engaged in misconduct by placing the bag on the fire, that he disposed of the ashes from the fire at a time when he either knew or suspected that they would be relevant to a police investigation and that he permitted police facilities to be used to store alcohol without authorisation.

152 I have not made any finding that would support the other grounds and reasons relied upon by the Commissioner.

153 I have earlier dealt with the submissions made by the applicant as to why his removal was harsh, unreasonable and unjust. In dealing with the factual circumstances of each of the allegations, I have considered the case presented by the applicant and in connection with those reasons and grounds that I have upheld, I have rejected what the applicant has had to say about them. In doing so, I have also taken into account the case presented by the Commissioner in these proceedings.

154 I have also rejected all of the submissions made on behalf of the applicant alleging procedural deficiencies and unfairness for the reasons that I have given with respect to each of them.

155 In determining whether the applicant’s removal was harsh, unreasonable or unjust, I must naturally consider his personal circumstances and his interest in maintaining in general terms employment within the police force, albeit that this is directed also to seeking medical discharge. I have a great deal of sympathy for the applicant in terms of his personal circumstances as a result of his removal including the financial loss which he will sustain if not successful in seeking a medical discharge against the background of his limited ability to find other work. I also take into account that the applicant had previously enjoyed an unblemished career as a police officer. In ordinary circumstances, an allowance might be made for one mistake. But I do not regard the applicant’s conduct and behaviour warranting such an allowance being made. Furthermore, I must also take into account the public interest including the maintenance of the integrity of the New South Wales Police Force. The importance of ensuring that all police officers conduct themselves in an appropriate manner is well recognised in the community and is reflected in decisions of this Commission, especially at appellate level.

156 On one view, it might be said that the events that occurred on 16 April 2006 could be understood in the context that most persons present at the function held to farewell the applicant were intoxicated. Certainly, the applicant was, even on his own admission. Intoxication can explain behaviour and, in some cases, may attract some sympathy or may otherwise ameliorate criticism that might be levelled against a person who is intoxicated. The applicant did not make any submission specifically directed to his intoxicated state, but it is a matter that I have taken into account in reaching the decision that I have, and in the circumstances fairness dictates that I must refer to it. I think that there are two answers to any suggestion that might be entertained that some allowance should be made of the applicant’s conduct because of his intoxicated condition. The first is that whenever any person who is intoxicated undertakes some activity, he or she must or ought to be aware that he or she is likely to be less physically capable of undertaking any particular task, his or her senses may be impaired and his or her inhibitions may be lessened. This is the case no less of a police officer who occupies a responsible position in our community. Overindulgence in alcohol creates a responsibility to remove oneself from any circumstances where undue or improper conduct or behaviour may result from one’s intoxication. The second response is that in the circumstances of these proceedings, the events that occurred on the evening of 16 April 2006 itself are but one element of a larger picture. The allegations levelled against the applicant by the respondent go beyond what occurred on that night. They extend to a failure to report misconduct of other police officers and participation in the removal of the remains of the fire from the scene of the function. There is no evidence that the applicant was unduly affected by alcohol after 16 April 2006.

157 This is not the first case of a police officer coming before this Commission where adverse conduct has been initiated by a chain of events caused or contributed to by excessive consumption of alcohol. References to a culture of excessive drinking are not confined to these proceedings. It is tragic that this applicant’s life shall have been so severely affected by events that commenced during a time when he was intoxicated. Unfortunately, this is a fact of life, one shared by victims of road accidents and the like caused by excessive consumption of alcohol.

158 Whilst it might be said that taken individually any one of the areas of misconduct which I have referred to might not justify removal or might render removal harsh, unreasonable or unjust, when balanced against the other matters to which I have referred, the position is, in my opinion, different when one considers the matters in the aggregate. Obviously, permitting police facilities to be used to store alcohol without authorisation would be seen within the community as not necessarily being a matter of such seriousness as to warrant removal. Certainly, I do not regard it as such, although I can imagine that if the Commissioner is concerned about the prevalence of the consumption of alcohol and the existence of a culture amongst police officers, commencing at the Police Academy, which exposes officers to excessive alcohol consumption, as is disclosed in the evidence in these proceedings, I could well understand the Commissioner taking a serious view about a matter such as this.

159 However, in the aggregate the other matters are, in my opinion, so serious as to demonstrate that the loss of confidence by the Commissioner in this applicant leading to his removal as a police officer does not render his removal harsh, unreasonable or unjust. The manner in which the applicant went about removing SM from the bus, in all the circumstances, including the fact that he was intoxicated at the time, does no credit at all to the New South Wales Police Force. The failure of an officer in charge to report the criminal conduct of other officers who were involved in destroying SM’s bag and the deliberate disposal of the ashes from the fire are all matters that, in my opinion, require this Commission to support the Commissioner in the action that he took. I cannot conclude that the Commissioner’s decision to remove the applicant was harsh, unreasonable or unjust. For these reasons the application is dismissed.

160 I ask the respondent’s solicitor to ensure that the matters referred to in [59] of these reasons for decision are brought to the personal attention of the Commissioner for consideration as to whether they merit investigation as to the current culture of the Academy and the police force.



LAST UPDATED:
16 June 2009