Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14 (10 February 2010)

Last Updated: 23 February 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14



FILE NUMBER(S):
IRC 1445

HEARING DATE(S):
30 March 2009, 31 March 2009, 1 April 2009, 2 April 2009, 3 April 2009, 3 June 2009.

DATE OF JUDGMENT:
10 February 2010

PARTIES:
APPLICANT:
Bradley Smith

RESPONDENT:
Commissioner of Police

CORAM:
Backman J


CATCHWORDS: Application for review of an order of the Commissioner of Police - Police Act 1990 - removal of applicant by respondent under section 181D of the Police Act - removal based on findings by respondent regarding conduct and competence - conduct and competence substantially conceded by applicant - applicant diagnosed with psychological disorder at time of the impugned conduct - removal found to be harsh - reinstatement ordered on conditions including the condition that applicant apply for a medical discharge.

LEGAL REPRESENTATIVES
APPLICANT:
Ms P Lowson of counsel
Solicitors: Walter Madden Jenkins Solicitors
(Mr K J Madden)
RESPONDENT:
Mr M Kimber SC with Mr B Cross of counsel
Solicitors: Deacons Lawyers
(Ms S Woodward)

CASES CITED:
Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170
Anthony Cavanagh and NSW Police [2003] NSWIRComm 474
Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539
Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288
Casari v Sydney South West Area Health Service (2009) 185 IR 217
Cassel v Commissioner of Police [2003] NSWIRComm 73
CCH Australia Ltd v Bowen (1998) 79 IR 206
Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2
Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44
Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1
Hollingsworth v Commissioner of Police (1999) 88 IR 282
Hosemans v Commissioner of Police (2004) 138 IR 159
Johnston v Commissioner of Police [2007] NSWIRComm 73
Johnston v Commissioner of Police (2007) 169 IR 301
Little v Commissioner of Police (No 2) (2002) 112 IR 212
Mahoney and Commissioner of Police [2003] NSWIRComm 67
Oswald v New South Wales Police Service (1999) 90 IR 42
Terrence Matthew Peisley (1990) 54 A Crim R 42
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420
Van Huisstede v Commissioner of Police (2000) 98 IR 57
Wells v Commissioner of Police (2000) 100 IR 106
Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203

LEGISLATION CITED:
Firearms Act 1996
Industrial Relations Act 1996
Mental Health (Criminal Procedure) Act 1990
Police Act 1990
Weapons Prohibition Act 1998
Weapons Prohibition Regulation 1999
Workplace Relations Act 1988 (Cth)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BACKMAN J

Wednesday, 10 February 2010

Matter No IRC 1445 of 2008

BRADLEY SMITH v COMMISSIONER OF POLICE

Application under section 181E of the Police Act 1990 by Bradley Smith for review of an Order of the Commissioner of Police

DECISION OF THE COMMISSION
[2009] NSWIRComm 14

Introduction

1 This is an application under s 181E of the Police Act 1990 for review of an order of the Commissioner of Police dated 14 August 2008 under s 181D(1) of the Act removing the applicant from the New South Wales Police.

2 The Order under s 181D(1) (and the s 181(3)(a) Notice which preceded it) was based on three principal findings made by the respondent which were set out in the Statement of Reasons attached to the Order. These findings may be described as the competence finding and two conduct findings. The conduct findings were based on the applicant's conduct arising from two incidents, the first occurring on 21 and 22 July 2007, and the second occurring on 24 November 2007.

3 The competence finding concerned the applicant's failure to initiate criminal proceedings in the Local Court against two prospective accused persons within the limitations period prescribed. The facts involved a collision on 29 September 2006 between a vehicle driven by Eric Martin and a motorcycle driven by Jason Kolber in Molongo Street, Bungendore. The applicant drafted court attendance notices (CAN) against Mr Kolber for "driving with mid-range PCA" and against Mr Martin for "negligent driving occasioning grievous bodily harm". The limitation period for both offences was six months.

4 The incident on 21 and 22 July 2007, as described in the Statement of Reasons, involved verbal abuse and threats made by the applicant against other police officers followed by the deployment of the state protection support unit (SPSU) to the applicant's residence at Braidwood. The applicant, at the time, was known to be in possession of several registered firearms. Negotiations commenced between members of the support unit and the applicant and continued for several hours during which the applicant continued to verbally abuse and issue threats against certain police officers. At about 7.40am on 22 July 2007, the applicant, still inside his Braidwood residence, was issued with a suspension notice in relation to his firearms licence. The applicant refused to provide the necessary consent to police officers to enter his property. A search warrant was then obtained and his home searched. During the search police seized a number of firearms, including a rifle which was in a secured locker, but was not registered. Other registered firearms were found in secured lockers with two magazine boxes. Inquiries made by the police revealed that the applicant did not have a permit for possession of the magazine boxes. Ammunition was also found in the secured lockers. Under the Firearms Act 1996, the ammunition should have been kept in an approved container separate from the firearms. The applicant's appointments, which included handcuffs, baton and capsicum spray were also found in an unlocked wooden cabinet, contrary to the NSW Police Handbook which required off-duty officers to retain their appointments, "in a sturdy lockable cabinet". Other ammunition located during the search was later found not to be of the same calibre as the firearms registered to the applicant.

5 Following the search of his residence, the applicant was taken into police custody and admitted to Chisholm Ross Psychiatric Centre at Goulburn where he was involuntarily detained for two days. He was also charged with a number of firearms-related offences in relation to which the applicant was later discharged subject to conditions imposed upon him under s 32(3)(b) of the Mental Health (Criminal Procedure) Act 1990.

6 On 24 November 2007, the applicant was drinking alcohol at the Royal Mail Hotel in Braidwood. At some stage, he argued with another hotel patron and a physical altercation ensued. When the publican attempted to intervene, the applicant pushed him in the chest causing him to stumble backwards into the wall of the hotel. Two police officers, Constable Sutton and Senior Constable Pearce, attended the hotel. The applicant verbally abused Constable Sutton and then left the hotel. He walked to Senior Constable Pearce's residence where he continued his verbal abuse, at the same time slapping an item into the front fence of the property, damaging three fence palings. Inside the residence at the time were Senior Constable Pearce's wife and his 13-year old son. They were so frightened by the applicant's display of aggression that they armed themselves with knives to protect themselves while remaining inside the home. The applicant then returned to the hotel where he began yelling at people. Constables Pearce and Sutton again approached the applicant in an attempt to calm the applicant. He became more agitated and threatened Constable Sutton. Sergeant Goodyer and Constable Sutcliffe arrived to provide additional assistance. The applicant proceeded to verbally abuse Sergeant Goodyer and threatened to punch him. When the applicant started to walk away from Sergeant Goodyer he was arrested.

7 The applicant was also charged with various offences arising from his conduct on 24 November 2007. These charges were heard at the same time as the firearms-related charges. He was also discharged in relation to those charges, subject to conditions under s 32(3)(b) of the Mental Health (Criminal Procedure) Act.

Relevant Legal Principles

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

Section 181E

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

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

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

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

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

(a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from NSW Police,
(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,
(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant’s case.

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

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

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

10 Section 181G of the Act applies the unfair dismissal provisions under Chapter 2 of Part 6 of the Industrial Relations Act 1996 to applications for review under 181E: Hosemans v Commissioner of Police (2004) 138 IR 159 at [101]-[105].

11 The procedure to be undertaken in accordance with s 181F requires the Commission to, "make a fresh and independent decision itself" (Hosemans at [134]), considering first the reasons of the Commissioner for removing the applicant, secondly, the case presented by the applicant and thirdly, the Commissioner's case in reply to the applicant's case. The Commission is also required to have regard to, where relevant, any new evidence admitted under s 181G(1)(f): Hosemans at [108] [134].

Section 181D(1) Order

12 On 4 June 2008 the applicant was given the "show cause" Notice under s 181D(3)(a) of the Act. Under the Notice the applicant was informed that the Commissioner was considering his suitability to continue as a police officer, based on the competence and conduct grounds which have been earlier summarised. On 25 July 2008 the applicant forwarded a response to the s 181D(3)(a) Notice which comprised a 26 page submission offering reasons why he should not be removed. The Response will be referred to in detail later in this Decision.

13 On 14 August 2008 the Commissioner determined to remove the applicant from the New South Wales Police Force. The Order was expressed as follows:

I, Andrew Phillip Scipione, Commissioner of Police, having considered your conduct and competence do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Force.

In reaching my decision, I have carefully considered the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the evidence contained in the supporting documentation, which were served on you. I have also taken into account your written response provided by your legal representative.

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

Your removal takes effect from the date of this Order.

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

I am required to make a determination under section 181D(1) of the Police Act 1990, in respect of whether I have confidence in you as a member of the New South Wales (NSW) Police Force.

In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990, and the material contained in the supporting documentation, which were served on you on 2 June 2008. The grounds set out in my Notice to you refer to your conduct and competence. I have also taken into account your written submission in response to the grounds set out in my Notice, which was provided to me by your legal representative.

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

Conduct on 21 and 22 July 2007

At approximately 5:30 pm on 21 July 2007, while on leave, you had a Telephone conversation with your estranged wife, Senior Constable Tanya Eade-Smith about your work and living arrangements. Senior Constable Tanya Eade-Smith states that she relayed comments made by Sergeant Pieper to the effect that he would be surprised if you were allowed to stay in a single unit. On hearing these comments, you reacted angrily and expressed strong views about Sergeant Pieper.

Sergeant Pieper alleges that at approximately 6:45 pm on 21 July 2007, he received a voicemail message on his mobile telephone from a voice that he recognised to be yours. This message was also electronically recorded and has been supported by telecommunications records. The content of that message was as follows:

Listen here you cunt. If you are going to fucking recommend that I don't come back rec...fucking operational, and or I move out of this fucking house come and fucking show yourself here, I'll fucking kick your head through the fucking ceiling you cunt, you fucking back-stabbing cunt.

Sergeant Pieper alleges that your tone during this message indicated that you were highly agitated. He says that he believed that you were on the verge of rage. He says that he immediately returned your call. He says that conversation was as follows:

You: Come in here you cunt.

Pieper: You have got some nerve pal. I've been working to try and help save your ass.

You: Get fucked, come in here and I'll kill ya, ya cunt.

Pieper: Yeah I'll lose my job when I come to your house...

Sergeant Pieper alleges that you then terminated the call. When he again called you back, it is alleged that you stated "I thought I told you to get fucked" and terminated the call.

Senior Constable Tanya Eade-Smith says that, at 6:57 pm, you then sent her a text message which read:

Take Gracie [your daughter] out of the house or keep her inside because when that cunt turns up I am going to beat the shit out of him and it will no doubt hit the fan soon after. Don't worry about moving because I will be gone for good soon enough. Don't contact me.

During a later telephone conversation with Senior Constable Tanya Eade-Smith, you allegedly stated:

"I'm in the lounge room, I've got a loaded thirty-thirty [rifle] and the first cunt that comes knocking on the door is going to get it. I'm going to bash them."

Senior Constable Tanya Eade-Smith says that she called you back a number of times but you just kept hanging up on her. Senior Constable Tanya Eade-Smith states that at 7:09 pm you sent her a text message which read:

Too late for that. That cock should be on his way if he has any balls and that will be it. You and Gracie will get all my insurance money anyway. Enjoy it.

She states that she then informed the shift supervisor, Senior Constable Goodyer and the Duty Officer, Inspector John Peirce, as well as Sergeant Pieper, about what had happened. Inquiries were made which confirmed that you were the holder of a firearms licence, with four firearms registered to you, including a Winchester .30-30 calibre rifle, a .17 calibre air rifle, a .22 calibre Lithgow small-arms rifle and a .222 BSA rifle.

The State Protection Support Unit was deployed to your residence (being the police residence at 174 Wallace Street, Braidwood). A perimeter was established and contact was commenced between yourself and negotiators in an attempt to persuade you to voluntarily surrender to attending police to enable medical treatment and welfare plans to be implemented.

Sergeant Dominic Goodyer states that he had a telephone conversation with you at around 11:30pm on 21 July 2007 in which you said words to the effect of:

"You tell that fat cunt Commins that if he comes out here I'm going to ram his head through a brick wall".

Sergeant Dominic Goodyer also states that, during the same call, you said words to the effect of:

"...and you can tell that fucken Pierce that if he comes out here as well I'm going to smash him. That whole management lot are fuckwits".

Negotiations continued into the early hours of the morning of 22 July 2007. At approximately 7:35 am on 22 July 2007 you surrendered. Inspector Peirce alleges that, after you surrendered and as you were being placed in the rear of a police vehicle, you saw him and had to be physically restrained as you attempted to break free. Inspector Peirce alleges that you yelled:

"You cunt, now you come down when it's all over, where were you earlier cunt, it's all your fucking fault you weak gutless cunt, you wait until I next see you, it'll all be over for you".

Detective Senior Constable Darnell also states that he also heard you say words to the following effect (which he believed to be directed to Inspector Peirce):

"You fucking fat cunt, you fucking low-life prick".

In your response to me concerning the above allegations you state that your "interaction with the police is not indicative of me being a serious threat to anyone, including the police who attended".

Your conduct on 21 and 22 July 2007 posed a real and serious threat to yourself, the police officers you threatened and the officers who attended and were required to diffuse the siege situation. You must understand that your conduct would also be considered as extremely serious and threatening by all attending police and those that received threatening phone calls and text messages from you.

You behaviour resulted in serious breaches of the NSW Police Code of Conduct and Ethics

Point 1 of the NSW Police Code of Conduct and Ethics relevantly states:

An employee of the NSW Police must behave honestly and in a way that upholds the values and the good reputation of NSW Police whether on or off duty.

Whether on or off duty your conduct will reflect on NSW Police. All employees must protect the reputation of NSW Police through appropriate behaviour.

You must always act lawfully and never in a way that brings or is likely to bring discredit to NSW Police.

Point 4 of the NSW Police Code of Conduct and Ethics relevantly states:

An employee of NSW Police must treat everyone with respect courtesy and fairness.

Point 6 of the NSW Police Code of Conduct and Ethics relevantly states:

An employee of NSW Police must comply with the law whether on or off duty.

NSW Police is responsible for upholding the law. Unlawful and/or criminal conduct by employees of NSW Police is incompatible with that role and also likely to bring NSW Police into disrepute.

All employees of NSW Police are expected to comply with the law at all times.

The NSW Police Code of Conduct and Ethics - Statement of Values relevantly provides:

NSW Police has identified its values to be:

Trust - promoting faith and confidence in their police.

Honour - acting with pride and admiration for the policing profession.

Leadership - acting as a role model for the community and your colleagues.

You also stated in your response that I do not seem to think it relevant that you were suffering from post traumatic stress disorder and depression. While I appreciate you were suffering from a mental illness at this time, you must understand that your conduct on this occasion was extremely serious and potentially dangerous, not withstanding the reasons you provide for it.

Firearms issues arising out of this incident

At approximately 7:40 am on the morning on the morning of 22 July 2007, Detective Senior Constable Daniel Black served you with a suspension notice in relation to your firearms licence. You refused to provide consent for police officers to enter your property to seize your registered firearms. A search warrant was obtained, and a search of your residence was conducted.

1. A Miroku brand .243 calibre rifle, serial number 0197177129, was located in the lower compartment of a secured locker in the laundry area of your premises. The rifle was not recorded on the Firearms Registration database of the NSW Firearms registry as being registered under the NSW Firearms Act 1996. It also does not appear on the National Firearms Registration database managed by the Commonwealth Government's Crimtrac Agency on behalf of all Australian jurisdictions. As a result, the rifle was not registered in any other Australian jurisdiction.

In a statement provided to police on 12 November 2007, Mr Arran Blazic states that he handed the rifle to you in early July 2007 on the basis that you would get it registered for him. Subsection 36(1) of the Firearms Act makes it unlawful for a person in NSW to possess a firearm which is not registered under that Act. Subsection 36(2) provides a defence where the person did not know, or could not reasonably be expected to have known, that the firearm was unregistered, and was not the owner of the firearm. You agree you were aware that the firearm was unregistered.

Subsection 37(2) of the Firearms Act provides that any person (other than a licensed firearms dealer) who acquires a firearm from another person must, within seven days, notify the Commissioner of Police of that acquisition and provide various particulars prescribed by the relevant regulations. The NSW Firearms Registry has no record of you providing the particulars prescribed by the regulations in respect of the Miroku brand .243 calibre rifle, serial number 0197177129.

2. During the search of your residence on 22 July 2007 under warrant, two thirty-round capacity detachable magazine boxes designed to fit centre-fire self-loading rifles of 7.62 x 39 mm calibre were located in a secured locker in your laundry area.

On 23 August 2007, Senior Constable Alan Dusting provided an expert certificate in relation to this matter. That certificate stated that in his opinion, the two magazine boxes are "prohibited weapons" under clause 4(4)(b) of Schedule 1 of the Weapons Prohibition Act 1998.

Subsection 7(1) of the Weapons Prohibition Act makes it an offence for a person to possess any item defined as a "prohibited weapon" without a permit to do so. Inquiries with the NSW Firearms registry indicate that you were not authorised by permit to possess those magazines.

3. During the search of your residence on 22 July 2007 under warrant, the secured locker in your laundry area was opened. Various firearms were located in the top part of that locker, including the Winchester .30-30 calibre rifle, serial number WFC06525 as well as a .22 calibre Lithgow small-arms rifle and a .222 BSA rifle registered to you.

The following items were located in the lower storage compartment of the locker:

· fifteen .22 calibre cartridges;

· eleven .30-30 calibre cartridges; and

· one .222 calibre cartridge.

The ammunition was of a type suited to three of the firearms registered to you and kept in the upper part of the locker.

Paragraph 40(1)(d) of the Firearms Act provides that any ammunition for a firearm be kept in an approved container separate from any receptacle containing that firearm.

4. During the search of your residence on 22 July 2007 under warrant, a single 12 gauge shotgun shell was located in a wooden storage box in the hallway outside the toilet. A further fifteen .40 calibre Smith & Wesson cartridges in a magazine were located on your appointment belt in an unlocked cabinet in your lounge room area. One .40 Smith & Wesson calibre cartridge and nine .22 calibre cartridges were also located on a shelf in the same unlocked cabinet.

In addition, ten .40 calibre Smith & Wesson cartridges were located in an unlockable box on a shelf in your master bedroom.

Paragraph 40(1)(d) of the Firearms Act provides that any ammunition for a firearm be stored in a locked in a [sic] container of an approved type.

5. During the search of your residence on 22 July 2007 under warrant, a detachable box magazine, handcuffs, extendable baton and a canister of oleoresin capsicum spray were discovered on your appointments belt, which was located inside an unlocked wooden cabinet in the lounge area of your residence.

These items fall within the definition of prohibited weapons contained with Schedule 1 of the Weapons Prohibition Act. Clause 5(1) of the Weapons Prohibition Regulation 1999 permits off-duty police officers to possess service prohibited weapons, provided that the officer complies with such guidelines as may be issued with respect to the off-duty possession of service prohibited weapons by police officers.

The NSW Police Handbook provides that, when off duty, an officer who retains his or her service prohibited weapons must "[s]ecure OC defensive spray, expandable batons, handcuffs and any other issued appointments in a sturdy lockable cabinet".

6. During the search conducted on your premises, ammunition of various types was located, including the following:

o forty-three .38 special calibre cartridges;

o ten .308 calibre cartridges;

o eighteen 7.52 x 39 mm cartridges; and

o forty-one 12 gauge shotgun shells.

Subsection 65(3) of the Firearms act provides that a person must not possess ammunition unless the person is the holder of a license or permit for a firearm which takes that ammunition, or is otherwise authorised by permit to purchase the ammunition.

The calibres of the firearms registered to you are .177, .22, .222, and .30-30. Senior Constable Alan Dusting has provided an expert certificate which states that, in his opinion, the ammunition listed above was not of a calibre to suit the firearms registered to you.

In your response to me regarding the firearms issues outlined above, you provide that throughout that period your life was "falling apart because of my illness and I could not take care of my belongings, my responsibilities or myself in general". You state this caused you to 'overlook' an unregistered firearm that was stored in your safe. You also state that you "forgot to unload ammunition" and that you "had no idea" there was ammunition unsafely stored. As a police officer I expect you to be aware of your responsibilities regarding lawful registration and possession of firearms, including safe storage of firearms and ammunition.

As explained in my Notice to you, not only have you breached NSW Police Handbook policy on the storage of appointments and ammunition and the NSW Police Firearm (Longarms) User Guide, you have again breached the NSW Police Code of Conduct and Ethics which states:

Point 1:

An employee of NSW Police must behave honestly and in a way that upholds the values and the good reputation of NSW Police whether on or off duty.

Whether on or off duty your conduct will reflect on NSW Police. All employees must protect the reputation of NSW Police through appropriate behaviour.

You must always act lawfully and never in a way that brings or is likely to bring discredit to NSW Police.

Point 3:

An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties.

Point 6:

An employee of NSW Police must comply with the law whether on or off duty.

NSW Police is responsible for upholding the law. Unlawful and/or criminal conduct by employees of NSW Police is incompatible with that role and also likely to bring the NSW Police into disrepute.

All employees of NSW Police are expected to comply with the law at all times.

You must be aware of the seriousness of the fact that you had firearms, ammunition, and service weapons in your possession and unsafely stored. Along with your state of mind at the time, this situation had the propensity to escalate the risk, not only to yourself, but to other officers attending the incident that took place on the 21 and 22 July 2007.

Conduct arising out of motor vehicle accident in September 2006

On 29 September 2006, you attended a collision between a vehicle driven by Mr Eric martin, and a motorcycle ridden by Mr Jason Kolber, in Molongo Street, Bungendore. Mr Kolber suffered significant injuries and was transported to Canberra Hospital, where his blood alcohol level was also tested. You created COPS Event 28003815. The matter was turned into a case, referable to case number C28462473, in which you were allocated as the responsible officer.

On 9 November 2006, Mr Kolber's blood sample was analysed and returned a reading of 0.088 grams of alcohol per 100 millilitres of blood. Mr Kolber was interviewed and admitted to consuming alcohol on the afternoon of the incident.

On 24 February 2007, you created a Facts Sheet and Court Attendance Notice in relation to a charge against Mr Kolber for 'Driving with Mid Range PCA'. The statutory limitation period for that offence is six months, meaning that the period would expire on 29 March 2007.

COPS Records relating to these matters indicate that you were sent reminders by Senior Constable Tanya Eade-Smith to take urgent action on this matter on 28 December 2006 and 30 January 2007. You received a further reminder on 20 February 2007 indicated [sic] that the limitation period for this matter would soon be expiring.

You ultimately completed a Record of service of the Court Attendance Notice. That Record of Service indicates that you served Mr Kolber's copy of the Notice 'By Mail' on 1 April 2007, after the matter had already become statute barred.

On 17 March 2007, you created a Facts Sheet in relation to a charge against Mr Martin for the offences of 'Negligent driving' and 'Negligent driving occasioning grievous bodily harm'. The statutory limitation period for this offence was six months, expiring on 29 March 2007. The charges against Mr Martin were listed in Queanbeyan Local Court on Monday 30 April 2007.

Section 52 of the Criminal Procedure act 1986 and the Local Courts (Criminal and Applications Procedure) Rule 2003 require Court Attendance Notices to be served on an accused and a Record of Service to be filed with the relevant court within the statutory limitation period.

COPS Records relating to this matter indicate that you were sent a reminder by Sergeant Lisa Carr on 13 October 2006 and by Senior Constable Trevor McLeod on 14 October 2006 to take action on this matter swiftly.

You completed the Record of Service indicating that you served Mr Martin 'By Mail' on 23 March 2007, which was within the statutory limitation period.

However, Queanbeyan Local Court records show that the Record of Service was not received by the Court Registry of the Court until 30 April 2007, well after the statutory limitation period expired. As a result, you failed to fully comply with the requirements of the Criminal Procedure Act and the Local Courts (Criminal and Administration Procedure) Rule. The matter was subsequently withdrawn from Queanbeyan Local Court on 6 August 2007.

In your response to me, you refer to the allegations set out above as 'oversights' and I note that between September 2006 and April 2007, you were absent from work on leave for significant periods. However, it remained your responsibility to ensure that appropriate steps were taken to delegate or pass on matters for which you were responsible. Your actions in allowing these matters to become statute barred have breached the NSW Police Code of Conduct and Ethics which states:

Point 2:

An employee of NSW Police must act with diligence and care when on duty.

As an employee of NSW Police you must carry out your work professionally. This means paying all due care, attention and diligence to your duties, fulfilling them to the best of your ability and supporting other employees to do the same.

An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties.

Conduct on 24 November 2007

At 8:30pm on 24 November 2007, you were drinking at the Royal Mail Hotel in Braidwood, when you approached another patron of the hotel, Mr Gary Haigh. An argument began which resulted in some form of physical altercation with Mr Haigh.

Following the incident, the licensee of the Hotel, Mr Keith North, says that he placed himself between you and the other patrons of the Hotel in an attempt to calm the situation. Mr North alleges that while he was attempting to calm you down, you pushed him with open hands into his chest a couple of times. He also alleges you later pushed him again, in the same manner, causing him to stumble backwards and into the wall of the Hotel.

Senior Constable Sutton and Senior Constable Pearce attended the Hotel, and attempted to diffuse the situation. It is alleged that you stated to Senior Constable Sutton:

"Don't fuckin stand in front of me. I will head butt your head right off its shoulders. I will knock you out, I tell you get out of my fuckin way you cunt."

After this, you left the Hotel and walked up Wallace Street until you reached the residence of Senior Constable Pearce. Senior Constable Pearce's wife, Raeme Pearce, and his 13 year old son, Joel Pearce, were at home.

Mrs Pearce alleges that at approximately 9:30 pm, she heard you yelling "fuck you all, fuck you all I fucking hate all of youse, fucking cunts", while slapping some item into the front fence of the property in a fierce and vigorous manner. She states that four fence palings shattered under your force. Later inspection of the Pearce residence showed that three fence palings were damaged, by your actions, and required repair.

Mrs Pearce states that she felt scared by your conduct and telephoned her husband. Because of her concern that you would attempt to enter the premises, Mrs Pearce retrieved a large carving knife from her kitchen to protect herself. She states that her son Joel was also scared and subsequently grabbed a Stanley knife to protect himself. Mrs Pearce states that her heart was racing and she was worried you would enter the backyard through an unlocked gate.

You then returned to the rear of the Royal Mail Hotel and began yelling at a crowd of people. When Senior Constables Pearce and Sutton approached you, you turned your abuse towards them. Senior Constable Pearce states that they attempted to calm you, however you became more aggressive. It is alleged that you said to Senior Constable Sutton:

"Don't fuckin stand in front of me cunt. I will smash your head in. Fuck off".

"...it's not you its just that uniform. I hate it. I don't want to belt you but if you get in my face I will".

"Fuck off away from me, I swear I will knock you out if you keep following me. Just fuck off Sutton".

Sergeant Goodyer and Constable Sutcliffe then arrived to provide additional assistance. Senior Constable Pearce states that, on seeing Sergeant Goodyer, you said words to the effect of:

"Is that you Dominic? You loaded me up you cunt, fuck off, you fuck off, you loaded me up, you said I threatened people and I didn't, I said stay away from me or I'll fucken belt you in the fucken head. All of a sudden that's a fucken threat, bullshit. Fucken stay away from me is all I fucken said and you sit there and put on a fucken paper that I made fucken threats to fucken officers, you fucken lying cunt, you fucken lying cunt".

You continued to abuse Sergeant Goodyer, coming very close to his face before withdrawing slightly and making a clenched fist with your right arm and drawing your arm back as if getting ready to throw a punch. It is alleged that you further yelled words to the effect of:

"You know what I fucken said, I'm not finished, I'll fucken belt you, you'll know when I'm finished you big cunt, fuck you think your [sic] big, I'll fucken given you big, I'll take you down in a flash, don't follow me or I fucken will".

At this point, Sergeant Goodyer says that he felt you were quite capable of carrying out a threat of assault against him or possibly physically injuring him. Sergeant Goodyer states that he continued in his attempts to calm you down, however he alleges that you continued to make statements such as:

"You fucken bullshit artist"

"I said tell that cunt to fuck off and leave me alone or I'll belt him"

Sergeant Goodyer alleges that while you were standing in the middle of Wallace Street, you yelled at him:

"Yeah your [sic] fucken Sergeant bullshit, you're a fucken imposter, you're a fucken dole bludger in a fucken police uniform, that's all you are".

Sergeant Goodyer states that you then commenced to walk away from him. He arrested you.

In your response to me regarding your conduct on the 24 November 2007 you say that you were "deeply embarrassed, ashamed, and humiliated" by your behaviour and that you "still struggle to come to terms with the way you behaved that evening". While I appreciate your remorse, I am sure you are aware the behaviour you exhibited on the evening of the 24 November 2007 was inappropriate and improper. Your behaviour towards attending police was unnecessarily aggressive and made it difficult for officers who were simply trying to perform their duty. This is not behaviour I expect of a police officer and combined with the fact that members of your local community were aware you are a serving police officer, your conduct has brought the NSW Police Force into disrepute.

I note that the criminal charges brought against you were dealt with under Section 32 of the Mental Health (Criminal Procedure) Act. However, in all of the issues outlined above, I have concluded that you failed to adhere to the NSW Police Code of Conduct and Ethics as in force at the time of the relevant incidents.

I also note that you are now being treated for depression and post traumatic stress disorder and I wish you well in that regard. However, I have significant concerns about your competence and conduct, and your suitability to be a member of the NSW Police Force. I consider that the matters set out above support a conclusion that removal from the NSW Police Force is an appropriate sanction for your conduct and lack of competence.

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. You have clearly, and on numerous occasions, breached the NSW Police Force Code of Conduct & Ethics.

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.

15 The applicant's conduct which formed the basis for his removal, may be better understood by placing it in the wider context of the applicant's employment history as a serving member of the NSW Police. That history may be derived primarily from the applicant's own account to the respondent contained in his Response to the "show cause" Notice.

16 The applicant became a serving member of the NSW Police on 6 May 1988. He was posted to Redfern Local Area Command (LAC) until 1991. Thereafter, until 1995, he worked in the police prosecuting branch in the South West region. Between 1995 and 1996, he returned to general duties and was promoted to Senior Constable. He resigned from the NSW Police in 1996 to run his own business, returning in July 1998, again performing general duties. In 2003, he transferred to Goulburn Police College where he performed duties as a project manager and later as a lecturer in education services to new recruits in law and communications, driver training and simulated policing. In May 2006, he transferred to Braidwood Police Station as a back-up lock-up keeper. Braidwood is part of the Monaro LAC. Queanbeyan is the head station. Within that area, the Local Area Commander at the time was Superintendent Gary Commins. From August to November 2006, the other officer stationed at Braidwood transferred out and the applicant managed the station alone. As a result, the applicant said he worked a lot of overtime, weekends and night time "call outs".

17 As a serving police officer the applicant received a number of commendations for outstanding performance of duty. In 2004, he was awarded the NSW Police Medal and in 2006, he was awarded the National Medal. The applicant also completed several police courses after he rejoined the police in 1998. These included, field training, fingerprint gathering, scenes of crime, driver training, custody management, and specialist youth officer.

18 On 5 November 2006, while on duty at Braidwood, the applicant was called to a fatal motor vehicle accident at Manar on the Kings Highway. He was the second officer to arrive and he was, he said, confronted with, "an appalling sight". He described the accident scene in his response to the s 181D(3)(a) Notice in the following way:

One deceased person had been horrifically injured and another was critically injured and trapped in her vehicle. Body parts of the deceased were littered throughout the accident scene and emergency services personnel were walking on body parts.

The deceased had been a passenger in a vehicle that had crossed into the path of a truck, he had been torn from the car and mangled, and he had come to rest under the vehicle in the table drain. Parts of the deceased's body were strewn over the roadway, his arm was thrown into a nearby paddock, blood, gore and brain matter were located all through the vehicle, as well as on the truck's bullbar, the deceased's heart has never been found.

The deceased's girlfriend, who was driving, was critically injured and she was trapped in the vehicle, and my duties were to assist ambulance personnel with the care of the injured driver and then to locate the deceased's body parts and to try and locate witnesses to the collision. When I did find out who had witnessed the accident I had to care for them, and attend to everything else that I was required to do. To this day, much of what I saw and did that day is a blur in my mind.

In time, other police arrived and assisted with various things, a Sergeant from Queanbeyan arrived at some stage, and he was the officer in charge of the situation.

I remained at the scene with the Sergeant and with one other officer until the examination of the scene was completed, and I assisted the Government Contractors to collect body parts, remove what was left of the deceased, and place him into a body bag. I then escorted the vehicles back to Braidwood, where they were secured, and I then completed my shift.

19 In the Response, the applicant said he was unable to sleep that night, suffering nightmares and flashbacks which he continues to suffer. He complained about the Duty Officer, Inspector Pierce, who he said did not attend the scene but, "just left the entire bloody mess to be sorted out by the sergeant and those of us who were already there". He also said that there was no immediate debriefing conducted for the police who had attended the accident. Nor, he said, was counselling organised, and it was not until some days later that management contacted him about the accident. Up to that moment he said he felt alone, abandoned, was suffering from the nightmares and struggling with feelings of revulsion, fear and despair. He could not, however, admit those problems because he said he "did not want people to think I was weak".

20 The following Tuesday, the applicant was recalled on duty to attend a head-on collision again on the Kings Highway just outside of Braidwood. There he found a young girl trapped and seriously injured. She was later airlifted to Canberra Hospital. The following Sunday, he was called to another head-on collision in exactly the same location as the first accident at Manar, Kings Highway. Again, a person was seriously injured and trapped in the vehicle. He said he struggled on that occasion to perform his duties. He found it difficult to approach the vehicle and was experiencing flashbacks about the previous collision. Another officer from Bungendore attended the accident with him and remained with the trapped person while the applicant attended to other duties. A duty officer, Inspector Ray White, also attended the scene and provided support and direction to the applicant and the other officer. The following week, the applicant said he was contacted by the Employee Support Branch (EMB) and arrangements made for him to attend a counselling session on 17 November 2006. He said that during the counselling session, he found it difficult to talk about the events of the previous two weeks. He was not sleeping and was constantly "dreaming" about the 5 November accident. He also experienced flashbacks, particularly when he drove past the 5 November accident site, which he did daily. He found his nerves becoming frayed and he became tired early. He was, however, the only officer on duty in the sector and had to keep working. After performing extensive amounts of night and afternoon shifts, the applicant abused a duty officer over a rostering issue. He then consulted a doctor and was placed on stress leave and certified unfit for duty for an indefinite period.

21 At about this time, a fellow police officer and friend of the applicant, Paul Baragry, sent an email to Superintendent Commins in which he expressed some concern for the applicant's state of mind. The email, dated 20 December 2006, was expressed as follows:

Sir,

I am emailing you to let you know that I have contacted EAP regarding Brad Eade-Smith at Braidwood. Brad is a close friend of mine and I am a bit concerned regarding a couple of incidents he has attended recently. Brad attended a fatal mva a number of weeks ago and shortly after a second one in a similar location. I am unaware whether the second one was a fatality. Only recently Brad attended another MVA in exactly the same location as the first fatality and he told me he was thinking "here we go again". If you know Brad you will realise that he is no shrinking violet and that he handles the tough ones as good as any man. I've known Brad for a long time and I have never really seen him get caught up over a single incident like this before. I apologise if I have dumped this on you and should have sent it to someone else. EAP have told me that I need to notify Brad that I want them to contact him or alternatively that he contact them. I think the former may be more appropriate. I just thought someone from the region should be aware that as a close friend I don't see things quite right with him at the moment,

Once again sorry for dumping you with this but I didn't think it appropriate to contact anyone at the station and that it should be noted from a higher authority.

22 Superintendent Commins sent a reply email the following day advising Mr Baragry that he had visited the applicant on 20 December. The email concluded with the words, "[I] thank you for taking the time to refer him as the more support the better".

23 It was during this period that the applicant had drafted the charges against Messrs Martin and Kolber with regard to the collision on 29 September 2006 on Molongo Street, Bungendore. The charges became statute barred on about 29 March 2007.

24 In late January 2007, the applicant asked to return to work. His reasons were that he knew how busy the workload was for the Bungendore police officer and he did not want to let him down. He returned to work on 25 January 2007, notwithstanding that he was under stress and continued to suffer nightmares and flashbacks. A NSW Police Medical Officer (PMO) Referral Form signed by Superintendent Commins and dated 14 February 2007, noted that the applicant had returned to work on 18 January 2007. It explained:

Officer reported sick following a critical incident not involving a firearm sought psychological treatment and returned to work 18.1.07 on pre-injury duties as per certificate. Firearm had been removed from the officer due to welfare concerns when he originally reported off sick.

25 The urgency level for treatment for the applicant was assessed by Superintendent Commins as "critical", that is, treatment was requested the same day as the referral form was signed, or the next day. The outcome sought by the Superintendent on the form was expressed as "approved for return of duties and firearm".

26 The applicant was not assessed by the PMO (Dr R Li) until 22 February 2007. Dr Li's report, addressed to Commander Commins on 23 February 2007, informed:

Constable Eade-Smith had been posting onto the current Command since 5-2006. In early 11-2006, Constable Eade-Smith had attended a fatal MVA. Since then, psychological symptoms had been developed. He had consulted with an EAP counselor. Constable Eade-Smith had continued with his full frontline policing duties. In 21-12-2006, after a workplace incident, Constable Eade-Smith had consulted with his local medical doctor in early 1-2007. Medical certificate(s) had been forwarded. Medication was required. At end of 1-2007, with a medical certificate, Constable Eade-Smith had returned to full frontline policing duties till the present.

Constable Eade-Smith stated he was no longer suffering with any psychological symptoms. He denied any suicidal ideation or other bodily harm ideation. He did take his medication occasionally. He stated he would follow up with his treating medical doctor. He believed he could remain onto full frontline policing duties. Constable Eade-Smith presented with no significant psychological findings during the assessment.

There was no medical certificate made available for perusal. [Please fax through the latest one to the PMO for perusal and record.]

According to the information above, Constable Eade-Smith might have suffered with psychological symptoms. Currently, he denies suffering with any significant symptom.

At this stage, Constable Eade-Smith can remain onto his full frontline policing duties.

Constable Eade-Smith should continue seeing his treating medical doctor for any symptoms and monitoring of his medication.

Workplace's monitoring and supporting will be required. Constable Eade-Smith must report any relapsed symptoms to the Command.

PMO/Police Psychologist assessed will be required with a referral and a medical certificate if there are of any concerns.

27 As at 23 February 2007, the applicant had been back at work at Braidwood performing his usual duties for several weeks. On 2 February 2007, he attended another serious motor vehicle accident on the Kings Highway again in the same location as the accident on 5 November 2006. A young woman was injured in the accident, but the applicant was unable to face interviewing her. He said that each time he attended Canberra Hospital for this purpose, he had a flashback. Instead of visiting her, he sat in the police car in the hospital car park and cried, unable to go into the hospital building.

28 Nine days later on 11 February 2007, he attended another serious motor vehicle accident east of Araluen. There he found a vehicle with four men in it which had run off the road, and descended a 60 metre cliff. Three of the men had been seriously injured. One of those men was airlifted to Canberra Hospital and is now a paraplegic. The applicant said that he had been unable to go down the cliff to assist the trapped men because he could not confront the situation. Instead, he remained "topside" until they were removed. He stayed at the accident sight from 10pm on Friday until 2pm the following day. During this time, he said he received only one call from the Duty Officer. No refreshments, including water, were provided, even though the temperature was between 35 to 40 degrees celsius. He said no one made contact with him after this accident. There was no debriefing, no counselling and no other support. The applicant nevertheless continued his duties although he could not sleep, continued to have nightmares and flashbacks and became more stressed about his police duties. During this time, he said he argued with Superintendent Commins over staffing issues and the stress he was under. He said, in the Response, "regrettably I abused him terribly". According to the applicant, Superintendent Commins acknowledged the stress he was under and advised him, "You need to fall on your sword and ask for help". The applicant said, in his Response, that that was something he did not know how to do.

29 In March 2007, while on duty, the applicant attended an 18th birthday party at Majors Creek. While there, he spoke to a number of young persons, one of whom he knew on a casual basis. He said he shared a few good natured jokes with this young man and left the party at about 1am. At about 4am, he finished his duties. Two hours later, at 6am, he was recalled to duty to attend a fatal motor vehicle accident just outside Braidwood. On arrival, he found the young man with whom he had shared jokes a few hours before at the party had been fatally injured in the accident. He called for assistance and a highway patrol officer arrived, as well as the Crime Scene & Crash Investigation unit.

30 Again, he said, no Duty Officer attended the scene. The applicant nominated Inspector Pierce as the Duty Officer. By about 3pm or 4pm, the body and vehicle were removed. The applicant returned to Braidwood to complete the necessary paperwork for the coroner's inquest. The highway patrol officer who had assisted the applicant at the accident scene apparently sought permission from Inspector Pierce to work overtime in order to assist the applicant. According to the applicant the officer was abused by Inspector Pierce and his request was refused. The applicant said that Inspector Pierce instructed the officer to inform the applicant that he would be allowed no more than eight hours overtime to attend to matters related to the accident. The applicant said he had already worked in excess of eight hours overtime and still had the paperwork to complete. The applicant's account of his reaction to the information was set out in his Response as follows:

I felt that Mr Pierce's attitude to me was an abuse by him, particularly as he had failed to assist me on two occasions in relation to a fatal motor vehicle accident. I found his attitude to be extraordinary, I felt gutted, I was really struggling with this fatal accident, and I was subsequently unable to cope with my duty.

31 The applicant's work performance deteriorated markedly after the March 2007 motor vehicle accident. In his Response, he described his condition at that time as follows:

I struggled on with my duties, although I found it harder and harder to turn my mind to necessary paperwork relating to briefs of evidence for the previous serious motor vehicle collisions.

I was unable to sit down and write a statement for any of the matters, because my emotions could not handle having to recall the incidents, and I knew that I was falling further and further behind, a fact that was evidenced when I perused my work log screen on the police computer system. I was drowning in work but I could not confront it and I was getting further and further behind with my work.

I was getting more depressed, and I was not coping at all. I was not getting better, indeed, I was getting worse, and everything around me was getting worse.

I was spending more time in the police vehicle driving around and out of town to avoid attending motor vehicle collisions, and I avoided driving past the scene of many of the incident sites. My emotions were in turmoil.

My personal life was also falling apart and I was unable to cope. My personal hygiene was suffering, I no longer exercised, and I put on weight. My house was a disgrace, something totally out of character to me, my yards were unkempt, and my dogs were not being looked after, something that I was always very passionate about doing.

My memory was failing and regularly I was unable to perform everyday duties in my life, things that I used to handle easily, for example, cleaning and paying bills, I could no longer attend to.

To make matters worse, I was consuming alcohol on a regular basis at home and at licensed premises, something I had never previously done other than at occasional social gathering.

Sometime between May and June 2007, I forgot three court matters, I failed to place incidents on COPS, and generally I was not performing at work. I was becoming aggressive with the public and to police, and on 21st June 2007, when I saw my doctor, I was again placed on sick leave for an indefinite period.

Thereafter, I was not been [sic] spoken to by management concerning any work performance issue or the stress I was suffering. In fact, I have never been spoken to about those matters, but I recognised that I could no longer safely or effectively perform my duties.

I still loved being a police officer and I wanted to help people, but my lack of sleep, continual nightmares, flashbacks and being unable to turn my mind to anything other than doom and gloom, made me feel useless and dangerous. My memory was shocking and I could not tolerate things that I previously took in my stride. Again I contacted the Employee Assistance Branch, and on the 7th July 2007, I began treatment with a psychologist at the Branch.

Consideration

32 This background was relied upon by the applicant in his Response to the "show cause" Notice as providing an insight into, as well as an explanation for, his conduct which formed the basis for his removal by the respondent. The Statement of Reasons did not refer directly to any of the background material set out in the Response. Nor were any of the identifying causes advanced by the applicant as an explanation for his conduct specifically addressed by the respondent.

33 At the time of the incident which occurred on 21 and 22 July the applicant had been diagnosed as suffering from post traumatic stress disorder. He had gone on indefinite sick leave one month before, on 20 June 2007. The only indication in the Statement of Reasons that the respondent had considered the applicant's psychological state as a possible contributing factor to the conduct of 21 to 22 July was contained in the following passages:

You also stated in your response that I do not seem to think it relevant that you were suffering from post traumatic stress disorder and depression. While I appreciate you were suffering from a mental illness at this time, you must understand that your conduct on this occasion was extremely serious and potentially dangerous, not withstanding the reasons you provide for it.

[...]

In your response to me regarding the firearms issues outlined above, you provide that throughout that period your life was "falling apart because of my illness and I could not take care of my belongings, my responsibilities or myself in general". You state this caused you to 'overlook' an unregistered firearm that was stored in your safe. You also state that you "forgot to unload ammunition" and that you "had no idea" there was ammunition unsafely stored. As a police officer I expect you to be aware of your responsibilities regarding lawful registration and possession of firearms, including safe storage of firearms and ammunition.

[...]

You must be aware of the seriousness of the fact that you had firearms, ammunition, and service weapons in your possession and unsafely stored. Along with your state of mind at the time, this situation had the propensity to escalate the risk, not only to yourself, but to other officers attending the incident that took place on the 21 and 22 July 2007.

34 With regard to the competence finding made in the Statement of Reasons, the respondent simply noted that the applicant had, between the relevant period, been absent from work, "on leave for significant periods". During the particular period however which was from 29 September 2006 until 29 March 2007 the applicant had attended the fatal motor vehicle accident on 5 November 2006 followed in rapid succession by a series of horrific motor vehicle accidents, some in the same location as the 5 November accident. During part of this period the applicant had been placed on indefinite sick leave as a result of his adverse reaction to the events of 5 November 2005. On 20 December 2006 Paul Baragry had expressed concern for the applicant's state of mind to Superintendent Commins in an email. This material formed part of the Commissioner's Confidence Submission (CCS) attached to the "show cause" Notice. He was also assessed by the PMO in the report of 23 February 2007 as suitable to return to work subject to certain conditions which included a requirement for workplace monitoring and support. This latter aspect will be returned to in more detail shortly. As a preliminary comment, however, it does not appear from the material placed before the Commission that the requirement was implemented by the respondent. On 20 June 2007 the applicant was again placed on sick leave. These matters, in my view, provide a compelling explanation for the applicant's omission to file charges against Messrs Kolber and Martin within the limitations period. They also serve to substantially mitigate the seriousness of that omission.

35 The Statement of Reasons did not refer in any detail to the applicant's explanation for his conduct which formed the subject of the incident on 24 November 2007. The only comments made by the respondent which sought to address the applicant's explanation appears in the following passages:

In your response to me regarding your conduct on the 24 November 2007 you say that you were "deeply embarrassed, ashamed, and humiliated" by your behaviour and that you "still struggle to come to terms with the way you behaved that evening". While I appreciate your remorse, I am sure you are aware the behaviour you exhibited on the evening of the 24 November 2007 was inappropriate and improper. Your behaviour towards attending police was unnecessarily aggressive and made it difficult for officers who were simply trying to perform their duty. This is not behaviour I expect of a police officer and combined with the fact that members of your local community were aware you are a serving police officer, your conduct has brought the NSW Police Force into disrepute.

I note that the criminal charges brought against you were dealt with under Section 32 of the Mental Health (Criminal Procedure) Act. However, in all of the issues outlined above, I have concluded that you failed to adhere to the NSW Police Code of Conduct and Ethics as in force at the time of the relevant incidents.

I also note that you are now being treated for depression and post traumatic stress disorder and I wish you well in that regard. However, I have significant concerns about your competence and conduct, and your suitability to be a member of the NSW Police Force. I consider that the matters set out above support a conclusion that removal from the NSW Police Force is an appropriate sanction for your conduct and lack of competence.

36 In his Response the applicant did not resile from the allegations made against him in the "show cause" Notice. These allegations were repeated in the Statement of Reasons. He disagreed with the emphasis placed by the respondent on certain aspects of his conduct suggesting that the "show cause" Notice had focused to his detriment "on one side of the story". Ultimately however the applicant admitted that he engaged in the conduct during the two incidents in July and November 2007, as well as the conduct which formed the basis of the competence finding. The applicant's primary complaint was that his conduct was the direct result of his post traumatic stress disorder and depression which, he emphasised, had been diagnosed by his treating doctors and psychologist. The Response also informed the respondent that Superintendent Commins had recommended that the applicant be medically discharged from the police force and that an application for medical discharge was currently being processed. The Response also attached a report by his treating psychologist, Elizabeth Durbock. The Response concluded with the following paragraphs:

My treating doctors and psychologists have explained to me that my post traumatic stress disorder and associated symptoms were responsible for my conduct and the consequences that flowed from it on 5th November 2006 through to 24th November 2007. Prior to that, I had never been in any trouble at all except for one traffic fine, and throughout 16 of my 17 years of service in the Police Force, I have been a competent and diligent police officer.

I believe that if I had not developed post traumatic stress disorder and depression as a result of the things to which I was exposed in the course of my duties, I would still be attached to the Braidwood Police Station performing my duties to a standard that would be more than satisfactory to the Commissioner.

From the onset of my illness, I received no support from the NSW Police Force. On the contrary, I was harassed and treated uncaringly, no one seemed to care about my welfare, and that led to my illness being exacerbated.

I believe that if the Commissioner of Police understood the injuries that I have suffered and the trauma that I have endured because of my injuries, I would not be considered for removal from the Police Force, rather I would be supported in my recovery, and my recuperation encouraged.

In light of the fact that all the charges that were brought against me were dealt with under Section 32 of the Mental Health (Criminal Procedure) Act and, because (as I understand it) the Police Force has applied for me to be discharged from the Police Force medically unfit, I respectfully ask that I not be dealt with under Section 181D.

I anticipate that I will be medically discharged and I ask that you give me the opportunity to leave the Police Force with some dignity, and that you look upon me as an officer who is unwell, rather than an officer who should be dealt with punitively under Section 181D.

37 The Report of Ms Durbock dated 12 June 2008, attached to the applicant's Response, was prepared for the purposes of the proceedings under s 32 of the Mental Health (Criminal Procedure) Act during which the charges against the applicant, which arose from the two incidents in July and November 2007, were dismissed and the applicant discharged on conditions, one of which was to remain under the care of his treating doctors and Ms Durbock, the clinical psychologist. The date of dismissal of the charges appears to be 16 June 2008.

38 In the report Ms Durbock stated that she conducted clinical assessment and intervention sessions on some 20 occasions between 14 February 2008 and 6 June 2008. She found that the applicant met the diagnostic criteria for major depressive disorder, post traumatic stress disorder and alcohol abuse in remission. Under the headings "Clinical Presentation" and "Results of Testing" Ms Durbock reported:

At assessment Mr Eade-Smith reported that he had attended a fatal motor vehicle accident on 5 November 2006 in the course of his duties as a Police Officer (rank of Senior Constable) and that he was faced with a horrific scene in which the victim (whom had been driving a car) had been ripped apart by a collision with a truck. As part of his duties at this scene Mr Eade-Smith was required to pick up body parts of the victim including flesh, bones, cartilage, brain (which was all over the console), and an arm attached to half of the chest (in a paddock). Mr Eade-Smith vividly recalls that the victim's body was concertinaed "like a cobra" and that his eyes were open as if watching Mr Eade-Smith even though he was dead. Mr Eade-Smith also reported feeling particularly distressed that the victim's heart was never located. Mr Eade-Smith reported that he was in attendance for a total of 12 hours and that personnel were not supported by the Duty Officer as was meant to be the case. Mr Eade-Smith reported that "hot" debriefing was not offered (apparently a mandatory requirement) and that no counselling was offered or organised for the personnel whom attended the scene. The night following this incident Mr Eade-Smith experienced the onset of trauma related psychological symptoms including nightmares and flashbacks.

Following this initial MVA Mr Eade-Smith was required to attend a further five serious/fatal motor vehicle accidents some of which were in the same vicinity of the original accident. In most cases Mr Eade-Smith was required to work long hours (one shift was of 22 hours duration) and was not always supported adequately by the Duty Officer nor offered appropriate debriefing. He provided the example of not being permitted to work overtime to complete the required paperwork for one of these accidents. Throughout this period Mr Eade-Smith's psychological symptoms worsened with increasingly severe symptoms of PTSD and the onset of symptoms of depression (which he reported were in relation to abandonment and lack of support from management). These symptoms consequently impacted on Mr Eade-Smith's occupational and interpersonal functioning where he was unable to perform his duties as a Police Officer (often avoiding the police station so as not to face the paperwork related to the various accidents and avoiding the sites of the MVA's), his outstanding paperwork mounted and he forgot to attend three court cases. However, he was never approached by management about his declining performance. Personally, Mr Eade-Smith had withdrawn from most social contact, commenced abusing alcohol (as a form of self-medication for PTSD symptoms) and neglected himself and the care of his home and animals.

Since the accident on 5/11/06 Mr Eade-Smith had attempted to participate in treatment both via his EAP and Queanbeyan Mental Health but found both to be inadequate. He had one period of sick/stress leave from mid-December 2006 until late January 2007 and commenced a second period of indefinite sick/stress leave from 21 June 2007 after recognising in himself that he could no longer safely and effectively perform his duties. Soon after he was involved in the siege (where he was forcibly removed to hospital), suspended and then evicted from his police residence all of which Mr Eade-Smith perceived as a lack of support from management, particularly when considering his length of service and his level of disability in relation to the psychological symptoms.

At the assessment interview Mr Eade-Smith reported the following psychological symptoms:

Depressive symptoms including depressed mood, tearfulness and irritability, markedly diminished interest or pleasure in almost all activities, severe sleep disturbance, diminished ability to think or concentrate (which also impacts on short-term memory), recurrent thoughts of death and high levels of suicide ideation.

Trauma symptoms including recurrent and intrusive distressing recollections of the events, recurrent distressing dreams of the events, experiences consistent with dissociative symptoms, intense psychological distress at exposure to internal or external triggers, avoidance of stimuli associated with the trauma(s) and numbing of general responsiveness (e.g. markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, sense of foreshortened future), persistent symptoms of hyper-arousal (e.g. difficulty falling and staying asleep, emotion dysregulation (e.g. irritability or outbursts of anger, difficulty concentrating, poor impulse control), paranoid ideation, at risk of acting out.

Additional symptoms related to substance (alcohol) use. Mr Eade-Smith reported behaviour consistent with Alcohol Abuse, however, he indicated that he ceased consuming high levels of alcohol approximately six weeks prior to the initial assessment.

It was concluded that Mr Eade-Smith met the diagnostic criteria for Major Depressive Disorder, PTSD and Alcohol Abuse (in remission). A psychiatric assessment conducted by Dr Brian White on 22 April 2008 confirmed the diagnosis of PTSD and antidepressant medication was recommended along with ongoing psychological treatment.

Results of Testing

Results from the PAI indicate significant elevations across a number of clinical symptoms including traumatic stress, depression, hypervigilance, persecution, resentment, social detachment, affective instability, identity disturbance, self-harm, antisocial behaviours, aggression, suicide and stress.

Results from the IES-R showed moderate impact of the traumas which is predictive of psychiatric morbidity and PTSD at six months after the event (though Mr Eade-Smith indicated that he found it difficult to concentrate on questions).

Results from the DASS placed Mr Eade-Smith in the Extremely Severe range for depression and in the Moderate range for anxiety and stress. In a recent re-administration of the DASS Mr Eade-Smith obtained results placing him in the Severe range for Depression and Stress and in the Moderate range for anxiety.

39 The report concluded:

At the time of the offences Mr Eade-Smith's mental state was affected by untreated PTSD and this was a major contributory factor to the offences. This statement is made in consideration of his background history prior to the onset of PTSD symptoms which suggests that Mr Eade-Smith presents a low risk for re-offending. This history includes the facts that Mr Eade-Smith comes from a stable childhood, he completed his high school education and went on to undertake further vocational studies, he has a stable employment history and a reasonably stable relationship history, he reported no history of alcohol or other drug dependence and no significant history of mental illness, he does not have a criminal history. It is apparent that Mr Eade-Smith behaved uncharacteristically both prior to and during the commission of the current offences and that this uncharacteristic behaviour was in response to the distressing and untreated symptoms of PTSD.

40 At the time the Response was received the respondent was therefore on notice of the diagnosis of PTSD and depression, the alleged direct connection between the applicant's psychological symptoms and the fatal motor vehicle accident of 5 November 2006, and the conclusion of Ms Durbock that those psychological symptoms were factors which influenced the impugned conduct to a highly significant degree. In the words of Ms Durbock the applicant's symptoms were a "major contributing factor" to the conduct the subject of the offences with which he had been charged.

41 Before the Commission the applicant's primary submission was that the respondent failed to take into account his psychological injury when assessing the seriousness of the impugned conduct and that this failure rendered his removal unreasonable and unjust. It was emphasised by the applicant in developing the submission that his psychological injury was suffered in the course of his police duties and continued during a return to work period when the applicant received inadequate monitoring and support. According to the applicant the medical evidence establishes that his mental illness was a sole or substantial cause of the impugned conduct which occurred within a limited timeframe consisting of two discrete incidents after which he received adequate treatment. In the alternative the applicant submitted that his removal was harsh having regard to the medical evidence placed before the Commissioner, his 18 years service as a police officer, his continued ill-health and incapacity for work and the associated financial impact of his removal. Finally, the applicant submitted that his removal was affected by procedural unfairness.

42 The applicant, as earlier adverted to, accepts in general terms that he engaged in the impugned conduct and performance issues. It was contended however that it was not open to the respondent to rely on the firearms and other offences in the Statement of Reasons. On 16 July 2008 the applicant was dealt with in the criminal justice system by the application of s 32 of the Mental Health (Criminal Procedure) Act. The charges were dismissed and the applicant was discharged, subject to conditions, one of which was to remain under the care of his treating doctors, including the psychologist, Ms Durbock, and a psychiatrist, Dr Brian White. By the time the Statement of Reasons was prepared there was therefore no finding, no residual allegation of criminal breaches, the charges having been discharged. In continuing to characterise the two incidents as criminal breaches, after the charges had been dismissed, the respondent, according to the applicant was in error. Moreover, the error had the effect of making the conduct relied upon more serious than it was, given the way in which the criminal matters had been dealt with.

43 It is convenient at this point to deal with the particular submission concerning the respondent's approach to the matters which were the subject of the dismissed charges. In my view the respondent was entitled to consider those matters, and take them into account in the Statement of Reasons. The applicant's possession and storage of the firearms, ammunition and his appointments fell squarely within offence provisions of the Firearms Act. The applicant was charged with a number of offences arising out of his possession of an unregistered rifle and other weapons and appointments that the applicant was not authorised to possess. The respondent was aware that the charges had been dismissed. The Statement of Reasons made express reference to the order under s 32 of the Act.

The medical evidence

44 Following the fatal motor vehicle accident on 5 November 2006 the applicant took sick leave. According to the applicant he took sick leave in December 2006 after he consulted a doctor in Braidwood who diagnosed him as suffering from PTSD and depression. While on leave the applicant was paid worker's compensation. It will be recalled that during this period, on 20 December 2006, Superintendent Commins received Mr Baragry's email advising him that the applicant was experiencing difficulties coping at work following the November 2006 motor vehicle accident. The applicant returned to work on 25 January 2007. Superintendent Commins referred the applicant to Doctor Li in February 2007. Doctor Li reported that the applicant "might have suffered with psychological symptoms" following his attendance at the November 2006 accident site. Dr Li recommended that the applicant continue to see his treating medical doctor for symptoms and monitoring of his medication, and that workplace monitoring and support was required.

45 As earlier observed, it does not appear that the workplace conditions were implemented by the applicant's supervisors. In oral evidence Superintendent Commins said that he did not personally supervise, or maintain regular oversight of the applicant between February and June 2007. He said that he was uncertain of the extent to which the applicant was continuing to access medical treatment after returning to work after January 2007, and he was confused by Dr Li's requirement for monitoring at the same time as returning the applicant to the same work area where trauma had been suffered. In cross examination Superintendent Commins frankly conceded that he was not trained to deal with matters concerning mentally ill police officers:

Q. Coming back to your evidence a moment ago, you indicated that you were confused about how you were meant to deal with the situation; on the one hand Mr Smith had been returned to full operational duties and his firearm returned, and on the other you were expected to somehow monitor both his medical appointments and to make sure he reported the return of any symptoms. Did you have any skills for dealing with those sort of situations with a mentally ill officer?

A. No. We are not trained in dealing with mentally ill officers so far as counselling is concerned.

46 According to Greg Bruce the Injury Management Adviser working in the respondent's Workplace Injury Management Unit, the applicant was not referred to the Unit although he should have been. It would seem therefore that there was no planning for the applicant's return to work. The applicant returned to full policing duties at Braidwood where he attended, in rapid succession, a series of serious motor vehicle accidents, at least one occurring in the same location as the fatal accident of November 2006, and at least one involving a fatality.

47 It was part of the applicant's case before the Commission that senior management within the police force failed in their role to support him. The failure to implement a return to work plan following his return to work in January 2007 and the lack of monitoring of his work between February and July 2007 were put forward as two examples of this perceived failure. The relevance of this aspect of the applicant's case to the issue of unfairness of his removal was said to be that the applicant was already affected by PTSD in February 2007. Nothing, or little, was done following his return to work to alleviate his illness. His continued exposure to serious motor vehicle accidents almost certainly worsened his illness. The deterioration of his mental state during this time and his frustration at senior management were said to have played a significant role in provoking his conduct during the two incidents in July 2007 and again in November 2007.

48 A further matter relied upon in support of this aspect of the applicant's case was the failure of the applicant's supervisors to apply the respondent's policy on the serving of firearms issued to a police officer who has taken stress related leave. Under the NSWPF handbook extract on Arms and Appointments it is stated:

Anxiety/depression related leave

Commanders

Ensure firearms for officers on stress related leave are secured in your safe.

49 The applicant had taken stress leave on 20 June 2007, about one month before the first incident. He handed in his service firearm at that time but he was not required to hand in his other appointments (including Oleoresin capsicum spray and ammunition). The keeping of these appointments formed one of the misconduct allegations against the applicant. According to the applicant, Superintendent Commins agreed that for the intention of the policy to be fulfilled it would be necessary to review whether the officer had access to his own firearms. Had the enquiry been made when the applicant proceeded on sick leave he would not have had access to firearms on 21 July 2007 and "virtually all" of the circumstances of that day and the following day would have been avoided.

50 I am unable to be satisfied, on the evidence before me, that members of senior management, either individually or collectively, hindered or exacerbated the applicant's deteriorating mental state. I accept, without reservation, that the applicant perceived that to be the case. The evidence indicates, however, that Superintendent Commins endeavoured, to the best of his ability, to provide assistance and support to the applicant. He contacted the applicant on numerous occasions after February 2007 in order to enquire about his progress and to provide support. Inspector Pierce was also accused by the applicant of failing to attend the motor vehicle accidents of 5 November 2006 and March 2007, although it emerged in the evidence that the Inspector was not the relevant duty officer required to attend at motor vehicle accidents in the Braidwood area. That area was supervised by duty officers based at Queanbeyan. Inspector Pierce was based at Cooma. The applicant also did little to promote his cause, having formed the view that members of the NSW Police Force, and senior management in particular, had failed to support him. He made it clear to certain officers that he did not welcome contact with them.

51 Following the incident of 21 and 22 July 2007 the applicant was admitted as an involuntary patient to the Chisholm Ross psychiatric facility at Goulburn. On or about 27 July 2007 he was suspended from duty as a result of the events of 21 and 22 July. The applicant said he received intermittent psychological and medical treatment from July 2007 until January 2008, through the public health system, specifically the Queanbeyan Mental Health team. This included treatment by Peter Marshall, a clinical psychologist, and treatment and medication prescribed by Dr Sarfraz.

52 Mr Bruce, the Injury Management Adviser wrote to HealthQuest advising it that the applicant had been referred to his Unit on 9 July 2007. The letter also noted that the applicant had received counselling from Ms Durbock. On 10 September 2007 Mr Bruce wrote to one of the applicant's treating doctors, Dr Ian Dumbrell, requesting clarification of the applicant's medical status, his needs, prognosis for a return to work and recommendation for rehabilitation. On 12 October 2007 Dr Arne Nilsson replied to Mr Bruce on behalf of Mr Dumbrell, informing him that the applicant was diagnosed with severe depression when he visited Dr Dumbrell, and was prescribed anti-depressant medication and referred to Mental Health. The letter also advised that the applicant had been diagnosed as suffering from PTSD. According to the applicant during this period he did not experience much, if any, improvement in his symptoms. The prescribed drugs were changed at least once, as the side effects were unacceptable.

53 In October 2007 the applicant's illness was accepted by the respondent's workers compensation insurer as a "hurt on duty" work-related illness. On 9 October 2007 the applicant was served with an eviction notice which required him to vacate his police residence at Braidwood by 6 December 2007. During the same period the applicant was being investigated by the police concerning his conduct in July 2007. These work-related stressors, according to the applicant impeded his recovery. It was not suggested by him however that the actions of the respondent (including his supervision, the police investigation and the eviction notice) at this time were causative of his mental illness. It was acknowledged by him that Superintendent Commins had attempted to manage the process of potentially upsetting issues.

54 In the Response the applicant sought to explain his state of mind during the period leading up to and during the second incident as follows:

By the 24th November 2007, I was in an advanced state of post traumatic stress disorder and I was harbouring a dislike of certain police because of the treatment I perceived I had been subjected to by them.

I had continued to receive psychological treatment in the months after 21st July 2007, but I was becoming more and more depressed and angry towards the Police Force, because I believed the Police Force had treated me like a criminal, rather than helping me.

I was not getting any effective treatment from the public mental health system, I only saw a doctor three times between July and November because she was always busy. I was harbouring a dislike towards certain police, particularly management at Queanbeyan, who I thought had done nothing to help me, and this all came to a head in late November 2007.

I had drunk too much alcohol at a friend's birthday party and I was heavily intoxicated. I went to the Royal Mail Hotel at Braidwood with some friends and I became involved in an argument with a local criminal who I knew was drug dealing. He was baiting me and I told him one day I would lock him up, and he replied that my own mates would prefer to lock me up. It seems I gave him a light punch in the stomach and I was then asked to leave the premises. One thing led to another, police arrived, and I behaved inappropriately. I was arrested and once again taken to Chisholm Ross.

I attempted self harm in the back of the truck. I was not scheduled, partly I believe because I told them that I would kill myself any way I could if I was admitted. I do not recall most of the evening, although I have heard tapes, which were recorded throughout the incident, and I am deeply embarrassed, ashamed, and humiliated by my behaviour at the time. I still struggle to come to terms with the way that I behaved that evening.

55 Following the November 2007 incident an apprehended violence order was taken out against the applicant. At about the same time he was required to move out of the Braidwood residence. The applicant said that at this time he recognised the need to reduce his drinking and did so. Work-related stressors continued however including the service of Court Attendance Notices upon him in December 2007.

56 On 31 January 2008 Mr Marshall, a clinical psychologist employed by the Mental Health Service in Queanbeyan reported that the applicant had been a client of the Service since his admission to the Chisholm Ross Centre (CRC) in Goulburn as an involuntary patient on 22 July 2007. The report identified those mental health professionals who had been involved with the applicant's assessment and case. Dr Sarfraz was one of the medical professionals identified. He was the psychiatry registrar in attendance at CRC at the time of the applicant's involuntary admission. Dr Sarfraz had continued to see the applicant after his discharge from the CRC on 23 July 2007. Mr Marshall's report advised as to the applicant's mental health as follows:

All the mental health professionals involved with Brad's assessment and care concur that Brad suffers Post Traumatic Stress Disorder, as a result of attending various incidents in the course of his duties as a police officer. These might include fatal motor vehicle accidents, but also other deaths or near-deaths, including suicides and attemps.

Brad also suffered some depressive symptoms, which I believe were secondary to his PTSD (i.e. they were a consequence of his PTSD and its effect on his professional and personal lives). Alcohol abuse was also a major problem for Brad by the time the Queanbeyan ACMHT [Activit Community Mental Health Team] met him, and is also likely to have been contributed to by his PTSD.

Brad was again taken to CRC by police on 24th November 2007, as a result of an incident which resulted in some of the charges currently before Queanbeyan Court. He was not formally admitted to CRC on that occasion.

Prior to his first contact with Queanbeyan ACMHT, Brad was prescribed Efexor, an anti-depressant, by his GP in Braidwood. In late September 2007 Brad was advised to change to Avanza by our Dr Sarfraz. Brad experienced some side-effects from the Avanza, and some weeks later reverted to Efexor which he still possessed. He finally ceased Efexor over the Christmas period. I am not sure of the exact dates, but I believe it is possible that both of Brad's incidents which resulted in him being brought to CRC, may have been shortly after commencing, or recommencing, Efexor. It is possible that these incidents were contributed to by a known side-effect of commencing Efexor, which is increased aggression.

Brad's PTSD seems to have developed over a period of time, and an accumulation of incidents, rather than as a result of one particular incident. I therefore believe it is likely that Brad's work performance may have been suffering for a significant period of time prior to his going on sick leave (in April 2007, I believe) and coming to the attention of Queanbeyan AMCHT [sic] (in July). I understand that there are other charges before the court which relate to the incident on 22nd July 2007. From what I know of those charges, I believe it is likely that Brad's deteriorating mental health contributed to their commission.

The Queanbeyan ACMHT has limited experience in the treatment of PTSD, and our primary recommendation would be that Brad continue in therapy with his private psychologist in Goulburn, for a significant period of time.

57 The report had been prepared for the applicant's hearing under s 32 of the Mental Health (Criminal Procedure) Act. It is not known however on the material before the Commission whether the Report came to the attention of the respondent. Mr Marshall was not required for cross-examination by the respondent.

58 On 22 April 2008 the applicant was referred to Dr Brian White, a consultant psychiatrist in private practice. Dr White's curriculum vitae (CV) indicates that he has extensive experience in clinical practice with patients suffering from war service related PTSD. Dr White's principal area of work was nominated in his CV as general adult psychiatry, especially PTSD, mood and anxiety disorders and severe chronic psychotic disorders. A large number of Dr White's patients were listed in the CV as current returning military, military veterans, and emergency services personnel especially police officers. It follows from the CV that Dr White was, at the time of the applicant's referral to him as a patient, highly qualified to assess whether the applicant suffered from PTSD. Dr White saw the applicant on 22 April 2008 and again on 26 May 2008, and made the following comments and findings:

He has broken sleep with waking in the early hours of the morning. He continues to have recurrent nightmares, distressing intrusive memories and flashbacks about traumatic incidents he has attended during his police work. He has intrusive distressing memories of his experiences from work, especially after reminders. He remains very withdrawn partly as a way of avoiding such reminders. Occasionally memories have the intensity of flashbacks. At these times he is acutely distressed.

His mood remains depressed and irritable. His marriage had broken up and his recent relationship also seems to have ceased. He has poor concentration. He is startled easily. He is excessively vigilant and on edge. He has almost no social life now. He is excessively anxious and on guard. He is startled easily. His concentration is poor and he is forgetful.

I would consider the incident with the siege was directly the result of the effects of PTSD and associated anxiety and depression.

He has limited benefit from Avanza and Zoloft and persisting side effects and ceased these last year. I recommend he commence Aurorix in a low dose of 150 mg Nocte and build up slowly. This is usually well tolerated. I also recommend he should be on sick leave as he is unfit for any employment currently due to the PTSD. In the long term I consider he would not do well if exposed to further traumatic deaths and severe injuries.

He has less enjoyment in life and his mood overall is not happy. He has associated irritable mood. He has a loss of enjoyment in life and no longer enjoys his hobbies and leisure activities. He remains anxious with reminders of his police work and he avoids such reminders as much as possible. He is no longer able to cope with Police work.

My diagnosis is that he has a Post-traumatic Stress Disorder related to his service in the NSW Police. I consider he has a Posttraumatic Stress Disorder (PTSD) from exposure to incidents in his work in the New South Wales Police; i.e. his PTSD is related to his police work. His PTSD and associated anxiety and depression are therefore a Hurt on Duty condition.

When I reviewed him he had been on a low dose of Aurorix and I recommended he increase this as he has had no significant side effects.

I would like to review him in June. He needs ongoing treatment including medication and sick leave for his PTSD. He should continue to see his psychologist, Elizabeth Durbock, for CBT and supportive psychotherapy.

I recommend he continue on sick leave. His PTSD makes him unfit for work. His PTSD and associated symptoms is the only factor which makes him unfit for work. He has reduced concentration and is more forgetful. This is partly due to his sleep disturbance from his PTSD which leaves him fatigued.

59 The reference in the report to the "siege" is a reference to the incident of 21 and 22 July 2007 during the time members the of SPSU and other members of the police force attended the applicant's residence at Braidwood.

60 As with Mr Marshall's Report, the material before the Commission does not indicate whether the respondent had the benefit of Dr White's assessment of the applicant, his diagnosis of PTSD, his conclusion that the PTSD was a result of the applicant's exposure to work-related incidents and his conclusion that the applicant's conduct during the "siege" was, "directly the result of the effects of PTSD and associated anxiety and depression". Dr White was also not required by the respondent for cross-examination.

61 The report of Ms Durbock which was prepared on 12 June 2008 I have already set out in some detail. According to Ms Durbock's CV she qualified as a psychologist in 1994 and thereafter worked as a psychologist for various government organisations. In December 2007 she commenced work as a psychologist in private practice. In private practice Ms Durbock's work focused on the psychological assessment and treatment of patients using a cognitive behavioural approach for disorders such as anxiety, depression and trauma. As her Report discloses Ms Durbock administered a number of tests to the applicant as part of his treatment. The tests indicated and confirmed Dr White's diagnosis, namely that the applicant was suffering from PTSD, as well as a major depressive disorder. Mr Durbock considered that the applicant's psychological state was a "major contributing factor" responsible for the applicant's conduct during the incidents of 21 and 22 July and 24 November 2007. Ms Durbock also considered that the applicant's symptoms had first manifested on the night following the motor vehicle accident of 5 November 2006. This opinion appeared to be based on the background given to her by the applicant. That background, Ms Durbock reported, was characterised by a stable childhood and employment and a "reasonably stable relationship history", with no reported history of alcohol or other dependence and no "significant history" of mental illness.

62 Ms Durbock's opinions were the subject of vigorous challenge by the respondent in cross-examination. In submissions the respondent contended that the Commission would attribute little, if any, weight to Ms Durbock's opinions, especially insofar as she suggested that the applicant's "untreated PTSD was a major contributing factor to his offences", and that the applicant, "presents a low risk for re-offending". In developing the contention it was said that Ms Durbock was not an expert in the treatment of PTSD and lacked experience in treating the condition in people, especially members of the police force. It was also said that her diagnosis was weak insofar as it was based on the subjective material record provided by the applicant. Her evidence should therefore be treated with the same "grave reservations" held by the Court of Appeal with regard to similar evidence in Terrence Matthew Peisley (1990) 54 A Crim R 42. A further criticism of Ms Durbock's evidence was that she presented as a firm supporter for the applicant rather than as an independent professional. Mr Durbock, for example, sent the applicant her draft report inviting his comments. Those comments co-incidentally reflected his views which were not recorded until the final report. The following extract from Ms Durbock's evidence was relied upon in support of this contention:

Q. And as it turns out the conclusions that you ultimately pen later on, as you have told Miss Lowson, on the date of the 12th, reflected what Mr Smith said in his email, did they not?

A. The same conclusion; like, if that's what it looks like, yes.

63 It was also suggested by the respondent that Ms Durbock in her oral evidence, "seemed to struggle to take the exercise seriously, treating questions put to her with inappropriate facial expressions and secretive smiles", and, that she only reluctantly accepted that her report was "seriously flawed" in that it failed to pay proper regard to a number of significant dependant trauma and life issues that could not be readily discounted or ignored in the applicant's case. The following extract from Ms Durbock's cross-examination was relied upon in support of this latter contention that her report was "seriously flawed":

Q. Yes, but in terms of your experience, with respect to PTSD, had you ever been called upon to write a professional report about the interface between PTSD and criminal offences before?

A. I actually can't remember. I may have. I used to work at Goulburn Correctional Centre. I may have written a psychological report then, I'd write a psychological report once a month there, but I couldn't tell you.

Q. Nothing comes to mind? Prior to doing the work for Mr Smith, had you done any work in relation to post-traumatic stress syndrome--

A. No--

Q. --disorders in police?

A. No.

Q. Had you done any work, in particular, about post-traumatic stress disorders following exposure to traumatic events?

A. "Post-traumatic stress disorder" by definition is following exposure to a traumatic event.

Q. Quite. Serves me right for asking a general question. Have you done any work about the impacts of post-traumatic stress disorders arising out of observation of motor vehicle - horrific motor vehicle accidents?

A. I couldn't answer that accurately. I guess no, but I'm not 100 per cent sure.

64 The respondent also contended that Ms Durbock's view, expressed in her Report that there was nothing in the applicant's background that could provide any insight or assistance when deciding upon the causes of the applicant's breakdown in July and November 2007 was, "simply wrong". Ms Durbock, it was said had been prepared to completely discount the fact that the applicant always had a temper and had suffered a bout of reactive depression following the end of his second marriage. Ms Durbock had also failed to properly read and consider the statements with which she had been provided for the purpose of preparing her Report. These statements included statements by Detective Sergeant Timothy Pieper and Senior Constable Tanya Eade-Smith, the applicant's second wife.

65 It was also contended that Ms Durbock had engaged in improper back reasoning, that is, she appeared to embrace the view that if the applicant had problems with alcohol, memory or aggression, these were likely to be caused by his PTSD because persons with PTSD often or sometimes have such problems.

66 I propose at this point to deal with each of the respondent's contentions concerning Ms Durbock's Report and her evidence given at oral hearing.

67 First as Ms Durbock's CV shows she was an experienced psychologist at the time of her diagnosis, having obtained her qualifications in 1994 and having worked on a consistent basis in her practice from that time. Secondly her Report and her diagnosis cannot simply be characterised as being based upon a historical account provided to her by the applicant. As the Report clearly indicates Ms Durbock conducted a number of independent tests with a view to establishing whether the applicant met any of the diagnostic criteria for major depressive disorder, PTSD or alcohol abuse. The respondent's reliance in this regard on Peisley was not warranted. An issue in that judgment was whether there was sufficient evidence of provocation fit to go to a jury so as to reduce a charge of murder to manslaughter. Obiter findings were made by Wood J concerning the opinion of a clinical psychologist. In the clinical psychologist's opinion, the appellant could have suffered a dissociative disorder at the time of the offence. At the same time, however, the psychologist reported that the test results showed no signs of any such disorder. In the view of Wood J the report should not have been placed before the sentencing judge. The report Wood J observed was seriously deficient because the test results were nothing more than the history given by the appellant of the shooting and the report omitted earlier incidents when the appellant had shot his brother and had been convicted of street fighting. The clinical psychologist was also criticised by his Honour for crossing the barrier of his expertise and entering into the area of psychiatry. Moreover, the psychologist's opinion was criticised on the basis that it was unsupported by psychiatric opinion. The conclusion in the report as to a diagnosis, his Honour found, was imprecise, tentative and uncertain. That conclusion was expressed in the following terms:

It could well be ... indicative that he may have been experiencing a brief episode of depersonalisation neurosis.

68 In contrast, Ms Durbock's diagnosis was based on the results of independent testing. Her conclusions were not qualified but were supported by psychiatric opinion which was not the subject of challenge by the respondent.

69 Thirdly, there is no basis for the assertion that Ms Durbock's Report and the views expressed therein were not arrived at independently but rather, reflect the applicant's views after the applicant forwarded his comments to her following receipt of the draft report. The extract from the evidence (set out above) relied upon by the respondent in support of the assertion does not provide a proper basis upon which such a finding could properly be made.

70 Fourthly, the Commission was not aware of any inappropriate facial reactions or secretive smiles by Ms Durbock during her evidence at oral hearing. As to her "reluctant acceptance" that her Report was "seriously flawed" the respondent has not pointed to any specific references in the transcript in support of the proposition. The extract from the transcript relied upon by the respondent does not establish the proposition. In my view Ms Durbock endeavoured to give her evidence before the Commission reliably, truthfully and professionally.

71 Fifthly, it is not entirely accurate to describe Ms Durbock's Report as dealing with an "interface between PTSD and criminal offences". It was the applicant's conduct during the two incidents in July and November 2007 that was the focus of her report. That same conduct was before the respondent for consideration as to whether to remove the applicant under a s 181D Order. In any event the charges against the applicant had been dismissed before the s 181D Order was issued.

72 Sixthly, the fact that Ms Durbock could not recall whether she had assessed, examined or diagnosed PTSD in police officers or considered the relationship between horrific motor vehicle accidents and PTSD before diagnosing the applicant does not, of itself, support a conclusion that Ms Durbock was therefore inexperienced in the area of PTSD.

73 Seventhly, it is not entirely accurate to describe Ms Durbock as expressing a view that "nothing" in the applicant's background or relationship could provide any insight or assistance when deciding upon the cause or causes of the applicant's conduct during the two incidents. The Report contains no such unqualified view. In the Report Ms Durbock referred to the account given to her by the applicant of the period following his separation from his second wife, Tanya Eade-Smith, during which he was treated with anti-depressant medication. In the Report Ms Durbock expressed an opinion based on the applicant's history that he had had a "reasonably stable relationship history" prior to the onset of PTSD. In my view, this opinion was open to her. Tanya Eade-Smith's statement which formed part of the materials sent to Ms Durbock for the purpose of preparing her Report provided support for this opinion. It also provided support for her view that the applicant's untreated PTSD was a "major contributing factor" explaining his conduct in July and November 2007. The following extract from Ms Eade-Smith's statement illustrate the point:

While we were at Goulburn, Brad and I separated for personal reasons. I transferred to Batemans Bay. I commuted from Goulburn to the Bay for a few months. Then I moved to Braidwood because it was more central between Goulburn and the Bay. This allowed Brad to come and stay with Gracie when I was on night work. Despite the fact we had separated, we remained close friends and both wanted to do the best for Gracie as far as parenting was concerned.

I think it must have been around May or June last year that Brad got back-up lock-up keeper's job in Braidwood. He moved into the police residence at 174 Wallace St, Braidwood. In October last year I got the lock-up keepers job at Braidwood and moved into the adjoining police residence at 172 Wallace Street.

Since I have known Brad, he has always taken a keen interest in his personal appearance and physical condition. He has also taken great pride in his house and gardens - to the point of being anal. Everything had to be immaculate - from his clothes, to the cleanliness of things and making sure things were organised. He would always be up early doing things. It was like he always had a project going on. Brad would also take a keen interest in the welfare of his fellow employees and would speak up if he felt they were not being looked after by management.

I first noticed a change in Brad's personality the day after he attended a fatal motor vehicle accident on the Kings Hwy on 5 November 2006 (E29811855). The young bloke that was killed had been ripped to pieces. Brad came to see me and was telling me how bad the accident was. Brad said he thought the young bloke was alive when he first looked at him because he was sitting upright and his eyes were open. Brad said it felt like the boy kept staring at him the entire time he was there. This was the first time I have ever heard Brad mention an incident affecting him like that. Then he put on the 'tough guy' voice and said he was okay.

I think it was the next week that another bad head-on happened at the very same spot. I was the second car to arrive. I was on sick leave with a broken leg at the time. I was in my own car. Brad arrived soon after with Dean JAMES from Bungendore. The accident was right on top of the crime scene markings from the fatal the weekend before. Brad went really pale and I asked him if he was alright. Brad was taking his time putting his vest on. I was telling him about the accident and who the witnesses were. Brad turned around and said, "I don't think I can do this one. It's in the same spot as the last accident." I thought he was actually going to be physically ill. Then he said to me, "Oh, poor Dean. What a way to start your first shift." I asked him if he was right to do the job and Brad said, "I have to do it, I can't leave it to Dean." I realised the fatal accident must have had a significant impact on him.

I came back to work on restricted duties in January this year. I was the sector supervisor and called a meeting at Braidwood with the other sector officers. The meeting went quite well, but Brad got really vocal about the lack of support from management. He was saying things like, "They don't care about us." He was repeatedly venting what he perceived as a lack of support from management. I've never seen or heard Brad behave like that before. It was that bad that I spoke to him later and told him that I thought he needed to take some time off. I think it was either that day or the next shift that he went off on sick leave.

After he went off on sick leave, I received a phone call from Mr COMMINS. He told me he needed Brad's medical certificate by three o'clock that day or he would cut Brad's pay off. Brad and I were actually outside our family doctor's practice in Goulburn when he called. Our doctor is Paul FALK. After the consultation, I mentioned the phone call I had from Mr COMMINS and Brad went right off. Basically Brad was angry that he had been affected by something that occurred at work and that management were not interest [sic] in his welfare, just a piece of paper.

From then on I noticed a decline in Brad's work ethics and personal standards. He didn't seem to care about his job or himself. I would ring him at home during the day and he would still be in bed. Brad let the yard and the house go. It wasn't really bad, just not up to his usual standards. I also noticed he didn't take an interest in his animals any more. He had always been caring for them, making them something warm to eat, exercising them, that type of thing. Brad also likes to cook and has always enjoyed eating good food. The weekend before last, I went over and spoke to Brad. He put his arms around me and got really teary. He said, "I just can't get out of my own way." Brad was extremely sad - sadder than I have ever seen him about anything. I told him he needed to get some help.

74 The respondent also sought to place reliance with regard to this particular issue on the statement of Detective Sergeant Pieper which was provided to Ms Durbock, along with Senior Constable Eade-Smith's statement and others for the purpose of preparing her Report. Detective Sergeant Pieper's statement however describes the events of 21 July 2007. It does not touch on the applicant's history prior to that date.

75 Finally the respondent asserted that Ms Durbock had engaged in improper "back reasoning" with respect to the applicant's behaviour in the wake of the diagnosis of PTSD. In my view there is no substance to this assertion. As I earlier indicated, Ms Durbock's report was not based solely on the applicant's history but also on the results of independent tests conducted by her. Moreover, Dr White, the applicant's treating psychiatrist had arrived at the same diagnosis.

76 The respondent submitted that there is no probative evidence before the Commission that the applicant's unacceptable behaviour, could readily and reasonably be attributed to the PTSD suffered by him as a consequence of observing a number of serious motor vehicle accidents, most notably the accident of 5 November 2006. I cannot agree with the submission. It is against the weight of the evidence. A number of treating doctors, psychologists and one psychiatrist diagnosed the applicant as suffering from PTSD and a major depressive disorder. The applicant's illness was accepted by Dr White and the respondent's workers' compensation insurer as a "hurt on duty" work-related illness. Based on the evidence, which includes the statement of Senior Constable Eade-Smith, the inference is reasonably open that the applicant's conduct during the incidents of July and November 2007 can be traced to his exposure to the horrific motor vehicle accident on 5 November 2006, followed in rapid succession by a number of very serious motor vehicle accidents, one of which occurred in the same location as the 5 November accident. Senior Constable Eade-Smith, who had close contact with the applicant during this time said she observed a change in the applicant's personality the day after he attended the 5 November 2006 accident. The applicant's friend and colleague Paul Baragry also noticed that the 5 November accident had had a significant effect on the applicant. So concerned was Mr Baragry that he forwarded an email to Superintendent Commins alerting him to what he observed was the applicant's uncharacteristic behaviour. Dr White's conclusion was that the applicant's conduct during the period 21 and 22 July 2007 (the siege), "was directly the result of the effects of his PTSD and associated anxiety and depression". Dr White's evidence was unchallenged. There can be no doubt on the evidence that Dr White was an experienced psychiatrist with particular expertise in diagnosing mental illness in serving members of the police force. Based on those matters, I accept Dr White's conclusions in their entirety. Ms Durbock's conclusion, which I also accept for reasons earlier set out, was that the applicant's "untreated PTSD was a major contributing factor to the offences". Ms Durbock's reference to the "offences" was a reference to the applicant's conduct during 21 and 22 July and 24 November 2007. It is abundantly clear from her evidence that she considered that the applicant's mental illness was the result of his exposure to the motor vehicle accident of 5 November 2006 followed by several other serious accidents, and that the applicant's mental illness in turn was a decisive factor which motivated his misconduct on the dates in question.

77 It is also significant that the applicant's failure to attend to the Martin and Kolber matters (the basis of the respondent's "competence finding") occurred during the period following the 5 November 2006 accident. It may be inferred from the mental health reports and the anecdotal evidence of the applicant's colleagues, in particular Senior Constable Eade-Smith, that the applicant's declining mental state was the prevailing reason why the applicant failed to attend to those matters in time. Senior Constable Eade-Smith said in her statement, for example, that after the applicant returned to work on restricted duties in January 2007 she noticed a decline in his work ethics and personal standards, matters she ascribed to his mental state as well as to his perceptions concerning a lack of support from management. These matters as well as the matters I have earlier referred to on this issue all serve to substantially mitigate the seriousness of the applicant's failures which formed the basis of the respondent's competence finding.

78 The respondent also sought to rely on what was characterised as earlier evidence of misconduct and an unacceptable attitude to the police force managers which it was said had manifested well before 5 November 2006. The basis for this reliance was that the earlier evidence tended to reveal that the applicant's attempt to explain his misconduct in July and November 2007 on his PTSD which was triggered on and from 5 November 2006, was untenable.

79 This evidence was said to be found in summaries from C@tsi files which contained details of previous complaints or allegations made against the applicant. These summaries formed part of the CCS provided to the applicant at the time he was issued with the "show cause" Notice under s 181D(3)(a). The material relied upon in my view does not assist the respondent. It was not relied upon by the respondent in his consideration of whether to remove the applicant under the s 181D(1) order. The material also consists of very brief summaries. The accuracy of the information cannot therefore be properly or reliably ascertained or verified without the benefit of more comprehensive information including the full factual context being placed before the Commission. Moreover the content of the summaries was not the subject of further evidence before the Commission. Many of the matters amount to no more then allegations or complaints for which the applicant either received counselling or no further action was required, or in one instance (October 2001) was dealt with through performance monitoring.

80 The respondent sought to draw an analogy between the medical evidence in the present case and the medical evidence before the Commission in Johnston v Commissioner of Police [2007] NSWIRComm 73 (affirmed on appeal in Johnston v Commissioner of Police (2007) 169 IR 301) and Mahoney v Commissioner of Police [2003] NSWIRComm 67. According to the respondent the medical evidence adduced in Johnston and Mahoney constituted detailed analyses undertaken by the forensic psychiatrists. This medical evidence, it was said, stood in contrast to the "significant and unsubstantial conclusions" expressed by Dr White and the "entirely inadequate" report of Ms Durbock.

81 As I have earlier sought to make clear, I am unable to agree with the respondent's characterisation of the respective conclusions reached by Dr White and Ms Durbock. The respondent elected during the proceedings not to challenge Dr White's conclusions. It would be immediately apparent from a reading of the decisions in Johnston and Mahoney that the applicants in those decisions saw their treating psychiatrists on one occasion only. It should also be borne in mind that the medical evidence led in Johnston was qualified, that is to say, Dr Westmore, a forensic psychiatrist, gave evidence that it was "reasonable to assume" that Mr Johnston's depression also played "some role" in the impugned conduct. Moreover Dr Westmore's assessment was predicated upon the condition that the applicant had exhibited no prior inappropriate behaviour as a police officer. Other probative evidence led during the proceedings, however, revealed that Mr Johnston had engaged in conduct similar to the conduct which formed the basis of his removal, prior to the onset of his depression.

82 On 28 February 2008 the Commission's Advisory Panel (CAP) recommended to the respondent that the applicant be removed pursuant to s 181D. Mr Bruce, who was present at that meeting recorded in his notes that the CAP at the same time decided to refer the applicant to HealthQuest for a medical assessment. On 14 April 2008 Superintendent Commins commenced the process for the applicant to be referred to HealthQuest with a view to him being medically discharged. The applicant attended the HealthQuest appointment on 29 May 2008. HealthQuest delivered its Report on 30 June 2008. The Report, entitled "NSW Police - Assessment of Fitness to Continue - Final Report in accordance with Crown Employees (Police Officers Death & Disability) Award 2005" contains the following conclusions and determinations:

DISCUSSIONS & CONCLUSIONS

1. DIAGNOSIS: The following conditions, which have been diagnosed in this case, are relevant to fitness for duties as a police officer:
· Post Traumatic Stress Disorder
· Major Depressive Disorder

2. CURRENT CAPABILITY & PROGNOSIS: The following summarises HealthQuest's assessment of the officer's current work capabilities and prognosis for return to work within NSW Police Force as an operational police officer, as well as the long-term prognosis:
· CAPABILITY: Unfit for any duties at this time.
· RETURN TO WORK: Unfit for duties as an operational police officer
· LONG TERM PROGNOSIS: Permanently unfit for duties as an operational police officer.

DETERMINATIONS (in accordance with s 9.3 of the Award)

1. Re: PARTIAL PERMANENT DISABILITY -
· I find that this Officer has a PARTIAL PERMANENT DISABILITY, in terms of the Award, because of the following health conditions: Post Traumatic Stress Disorder, Major Depressive Disorder

2. Re: TOTAL PERMANENT DISABLEMENT (refer to detailed definitions in Award) -
· NOT APPLICABLE. I do not find that this Officer satisfies the definition of Total Permanent Disablement under the Award.

83 A copy of the Report was forwarded to the Medical Discharge Co-ordinator, NSW Police Force, Workers Compensation and Review. Mr Bruce gave evidence that he received the Report in the first week of July 2008. It is not clear on the evidence however whether the respondent was made aware of the Report prior to his decision to remove the applicant under s 181D(1) of the Act.

84 The Statement of Reasons incorporates several references to the fact that the applicant was suffering from PTSD and a major depressive disorder at the time he engaged in the impugned conduct on 21 and 22 July and 24 November 2007. The respondent appeared to accept in the Reasons that the applicant was suffering from a mental illness during the events of 21 and 22 July 2007. At no stage however does the respondent in those reasons consider whether the applicant's psychological illness provided an explanation or was largely responsible for, or was a "major factor" contributing to that conduct. I am unable with any reasonable degree of certainty to ascertain the extent of the medical information the respondent had at his disposal at the time the decision was made to remove the applicant. The respondent may only be obliged to take into account in his Reasons the documents and other material, including any written submissions from the applicant, with which he has been provided. The Commission on the other hand is not so constrained.

85 The decision of the Full Bench in Hosemans v Commissioner of Police (2004) 138 IR 159 at [134] is authority for the proposition that the Commission's task on a review of the respondent's decision to remove an applicant is to make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the respondent's decision was correct at the time it was made (see Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 at [29]).

86 The approach in Hosemans was recently affirmed by the Full Bench in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 at [11]. Although the comments in that decision were made in the context of the Commission's approach when considering a challenge to the removal of police officers based upon procedural grounds, the Full Bench endorsed the approach set out in Hosemans (No 2) as relevant to the Commission's consideration of the merits or substance of an application for review:

the role of the Commission is to "conduct a review of the merits of the decision of the Commissioner, to consider the whole of the circumstances of the matter in the way determined by s 181F and apply the statutory criteria in that situation": Newton (No 2) at 79. We agree with the Full Bench in Hosemans (No 2) (at [134]) that the review of a decision to remove under s 181D is to be a "fresh and independent review"

87 In Little v Commissioner of Police (No 2) (2002) 112 IR 212 the Full Bench found that an approach to proceedings brought under s 181E of the Act which was confined to a determination of whether the respondent was justified in coming to a conclusion that he had lost confidence was an erroneous approach. At [74] of the decision the Full Bench said:

The provisions of the Act do not so confine the Commission in considering an application under s 181E. It is true that the Commission is required to consider, under s 181F(1)(a), the reasons given by the Commissioner. In that respect, the Commission may deal with the substance and basis for the allegations brought against an officer, including whether there is a basis in fact of the allegations levelled against a police officer. However, the Commission will consider other matters and bring into account such matters as to whether the dismissal was harsh, unjust or unreasonable, which go to the merits of the application, including a consideration of the procedures adopted by the Commissioner. These matters may transcend the particular reasons stated by the Commissioner for his loss of confidence, as the statutory directive is for the Commission to consider whether the removal was harsh, unreasonable or unjust on any relevant or reasonably available basis and not simply whether the Commissioner’s conclusion was sustainable or not, although the reasons for the Commissioner’s loss of confidence will be plainly a matter of particular

significance in such proceedings. Whether the nature of the proceedings being a review of a decision as to a ‘‘loss of confidence’’, may in some way affect the nature of any such merit review, does not arise for consideration in this matter.

88 Under s 181F the Commission must have regard to the respondent's reasons for his decision to remove the applicant and the respective cases presented by the applicant and respondent. In having regard to those matters the Commission must also have regard to the applicant's interest and the public interest which includes the interest of maintaining the integrity of the police force and the fact that the respondent made the Order under s 181D(1): see s181F(3). These competing interests must be balanced one against the other with no one interest assuming any greater significance or taking any greater precedence over the other.

89 The applicant's conduct during the two incidents was undeniably very serious. A particularly serious aspect of that conduct occurred on 24 November 2007 when the applicant subjected innocent members of the public, namely Mrs Pearce and her son, to a terrifying ordeal outside their family home. Moreover the applicant did not dispute, except for some relatively minor matters, the fact that he engaged in that conduct. In oral hearing the applicant made the following concession:

Q. In so far as the conduct alleged against you is concerned, you have not sought to put in issue what the Commissioner said in relation to what you have done wrong, that is true is it not?

A. To a certain degree. I can't argue with what I did. I disagreed with some of the things Commissioner said in his documents. But basically what happened happened, they are the facts.

90 Given the seriousness of the conduct it may be concluded that the respondent was justified in deciding to remove the applicant. That is not, however, the end of the matter. In my view the applicant's state of mind at the time he engaged in the conduct, that is, his PTSD and depression, was a decisive factor in causing that conduct.

91 It is also the applicant's case that his removal was harsh. As I observed in Johnston on that issue (at [54] to [57]):

Consideration of this issue directs attention to the consequences of removal. The obligation on the Commission to have regard to the issue when it properly arises from the relevant material was the subject of comment by the Full Bench in Little v Commissioner of Police (No. 2) (2002) 112 IR 212:

[71] The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate 'justification' in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.

[72] Further, the provisions of s 181F of the Police Service Act point to a further reason as to why the challenged decision was in error. Section 181F(1)(b) requires that the Commission consider, in an application brought under s181E, the case presented by the applicant as to why the removal of a police officer was harsh, unreasonable or unjust. Such a case was brought by the officer in this matter, both in his submissions to the Commissioner (made pursuant to s 181D(3)(b)) and before the Commission at first instance). In such circumstances, putting the consequences of the removal out of account or, to be treated in such a way as to be overborne by other considerations, such as the 'justification' for the Commissioner's basis for forming a conclusion, was, in our view, wrong. That approach was plainly contrary to the provisions of s 181F of the Police Service Act, which requires that the Commission consider such matters when they arise in the applicant's case. So much would also seem to follow from the provisions of s 181F(3)(a) whereby the Commission is expressly required to consider the "interests of the applicant". That consideration plainly requires that the consequences for the applicant of his or her dismissal be a material consideration.

Section 181F of the Act has been earlier set out in this Decision. In particular, the interests of the applicant, balanced against the public interests, which incorporate police interests in maintaining the integrity of the NSW Police, provide a framework in which the consequences of the applicant's removal may be assessed.

A classic exposition of the application of the principles when considering the consequences of dismissal or removal from employment is found in the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233:

I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J, in Loty's Case ([1971] AR 95 at p99), the Commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative.

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the Tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

Metropolitan Meat Industry Board, and the decision of the Full Bench in Little's case, propose that where an application by an applicant against his or her removal or dismissal from employment has failed to satisfy the tripartite test under the Act, the Commission must nevertheless have regard to the harshness or severity of such removal and may, if the circumstances permit, reinstate the applicant on the ground that those circumstances support a finding that the removal has been shown to be too harsh a consequence. This approach is mirrored by s 181F(3)(a) of the Act. As the Full Bench in Little's case observed, that provision requires a consideration of the consequences of an applicant's removal.

92 The applicant in written submissions relies on a number of mitigating factors to demonstrate that his removal, in all the circumstances was harsh. These factors include, in addition to the medical evidence concerning his mental state at the time of the impugned conduct and its impact on that conduct, the applicant's 18 years of service as a police officer, his continued ill-health and incapacity for work and the associated financial impact of his removal.

93 The applicant's employment history as a serving member of the police force has been set out earlier. The applicant appears to have been a highly commended police officer. In 2004 he was awarded the Police Medal and in 2006 he was awarded the National Medal. It may be accepted without further evidence that the removal of a police officer from the police force carries with it financial and personal consequences which impact adversely on the removed officer. The applicant's illness was acknowledged by the respondent's worker's compensation insurer as a work-related injury. The HealthQuest Report confirmed the diagnosis of Dr White and Ms Durbock, although the Report did not go so far as to confirm its connection or its contribution to the impugned conduct. The applicant continues to be incapacitated although there are strong indications on the evidence that his current treatment regime has resulted in an amelioration of his symptoms. At the time the applicant gave evidence at oral hearing he was unemployed and in possession of a medical certificate indicating that he was unfit for work. The applicant in oral evidence also informed the Commission that he was very ashamed and embarrassed by his behavior. He added, "I'm not proud of the way I behaved at all". The Commission accepts these expressions of remorse and intends to take them into account as factors relevant to the applicant's interest under s 181F(3).

94 In addition to the seriousness of the applicant's misconduct the importance of integrity in the police force and the fact of his removal, the evidence disclosed that the applicant continues to harbour some animosity towards members of the police force. This was demonstrated at oral hearing when the applicant expressed a desire to give his evidence in the absence of all uniformed members of the police force.

95 The Commission under s 181F(3)(a) must weigh up all of these matters and strike an appropriate balance between the two competing interests, namely the applicant's interest and the public interest. These matters I have sought to deal with in considerable detail in this Decision. In weighing up these interests as I have done I have been particularly persuaded by the medical evidence which, as I have found, warrants the conclusion that the applicant's PTSD and depression manifested as a result of his involvement in the 5 November 2006 motor vehicle accident followed in rapid succession by his involvement in other serious motor vehicle accidents and contributed to, or caused, to a significant extent, the misconduct during the two incidents in July and November 2007. It also provides a compelling explanation for his failure to attend to the Kolber and Martin matters within the prescribed limitations period. A consideration of this factor together with the other factors including the competing factors leads me to a conclusion that the applicant's removal was harsh.

Relief

96 In his application filed on 1 September 2008 the applicant sought reinstatement to his former position. In his affidavit filed on 24 November 2008 the applicant stated that he seeks reinstatement to the NSW Police Force, "only for the purposes of applying for a medical discharge".

97 In submissions in reply before the Commission the applicant sought the following orders:

A. The applicant is reinstated as an officer of the New South Wales Police Force on the following terms and conditions:

a. The Commissioner of Police is ordered to pay the applicant remuneration that the applicant would have received but for being removed, less any workers compensation received by the applicant;

b. As previously submitted, if the Commission wishes to indicate that the conduct is unacceptable, it could deny an award of back pay, although this is put strictly in the alternative;

c. The applicant's period of employment is taken not to be broken by his removal and the terms and conditions of his employment are taken not to be otherwise affected except to the extent set out in these orders;

d. The Commissioner of Police shall place the applicant on sick leave (or suspension with pay) until the medical retirement process, based on the HealthQuest Report dated 30 June 2008, is completed;

e. The Commissioner of Police shall cause the officer to be medically retired within a short timeframe, but in any event not more than 28 days from the date of this decision.

f. Liberty to apply is granted to the parties as to the form and detail of these orders provided such leave is exercised within 14 days of this decision.

B. In the alternative, the applicant is reinstated as an officer of the New South Wales Police Force on the following terms and conditions:

a. The Commissioner of Police is ordered to pay the applicant remuneration that the applicant would have received but for being removed, less any amounts paid to the applicant upon his removal and workers compensation or work income received by the applicant;

b. The applicant's period of employment is taken not to be broken by his removal and the terms and conditions of his employment are taken not to be otherwise affected except to the extent set out in these orders;

c. The Commissioner of Police shall place the applicant on sick leave (or suspension with pay) and shall not treat the applicant as medically fit for duties in his former position by reason of these orders;

d. The proceedings are adjourned to a date to be fixed. On that date these orders may be vacated if, as a result of the completion of the medical discharge process, the applicant is retired from the New South Wales Police Force. (see NSW Teachers Federation v Education Commission (NSW) (1998) 26 IR 179)

C. In the alternative, the applicant is to be paid compensation as follows:

a. The applicant is to be paid by the Commissioner of Police an amount of compensation equating to the amount of remuneration that the applicant received during the last period of 6 months he was in receipt of full pay.

b. The amount of compensation is to be paid within 21 days of the date of this decision.

98 Under s 89 of the Industrial Relations Act 1996 (IRA) the Commission has a discretion to order the reinstatement of an applicant consequent upon a finding that his dismissal (or in the present case, his removal under s 181D(1)), was harsh. Section 89(1) provides:

The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

99 The other provision, relevant to the present issue, is s 89(8), which is expressed as follows:

An order under this section may be made on such terms and conditions as the Commission determines.

100 It is the respondent's contention that s 89(8) requires that any conditions imposed on an order for reinstatement must support or regulate and be incidental to the establishment of the working relationship, and cannot be made to ensure that it is not restored. Reliance was placed on the Full Bench decision in Dobbie to establish this proposition. It was also contended that to the extent the orders made in Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170 and in Anthony Cavanagh and NSW Police [2003] NSWIRComm 474 contradict the proposition, those decisions should not be followed.

101 The respondent also contended that even if the Commission was satisfied that it had the power to reinstate the applicant for the stated purpose, it could not be satisfied that it would not be "impracticable" to make the order. Consideration of the word "impracticable" in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 were relied upon in support of the contention. The respondent submitted on this issue that there was no evidence to support a conclusion that his risk of re-offending was low, especially in circumstances where he maintains a "deep-seated hatred" for the NSW Police Force and actively contends that he is totally unfit for any police work: cf Wells v Commissioner of Police (2000) 100 IR 106; Cassel v Commissioner of Police [2003] NSWIRComm 73; Johnston (first-instance decision) at [82].

102 It was further contended by the respondent that it was also significant to the issue of reinstatement that the applicant admitted virtually all the misconduct and has not therefore been in a position to call current serving members of the police force to support his application: see for example Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 with regard to the relevance of character evidence.

103 The respondent also submitted that the making of a reinstatement order "only for the purposes of applying for a medical discharge" could not achieve the desired result because there are numerous and time-consuming steps not yet taken which involve an investigation into the applicant's fitness. It was said that the HealthQuest Report was a preliminary step in the process, and that there remains a real prospect that an assessment of the applicant's fitness for work will reveal that he is fit for placement in some other suitable position.

104 Finally the respondent submitted that if the Commission finds that reinstatement would not be impracticable (in the terms proposed) then the question still arises as to whether the discretionary remedy should be provided to the respondent and given the circumstances, it should not.

105 I propose to deal in turn with each of the contentions raised by the respondent on the issue of reinstatement in the terms sought by the applicant.

106 In Dobbie, the Commissioner of Police contended that a condition imposed on an order for reinstatement under s 89(8) (in the form of an undertaking to abstain from consuming alcohol) was ancillary to the order, not its premise (at [24]). This, I would observe is an uncontroversial proposition. The function of s 89(8) within the statutory regime in s 89 of the Act was the subject of comment by the Full Bench in Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 at [5] to [7].

107 In Four Sons a Full Bench held that s 89(8) enabled the Commission to make a final order that compensation be paid within seven days of the date of a decision in circumstances where the Commission had ordered compensation to be paid under s 89(5) IRA.

108 In Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203, the respondent in the proceedings below had sought interim relief from the threatened dismissal of one of its members by the appellant. The trial judge made orders which included an order that, "the status quo in place at 4:00pm on 5 September be reinstated for all purposes". The Full Bench found that if the trial judge in making the order had relied on s 89(8), then it went beyond what was available as final relief under s 89(7), that final relief being an order that the appellant shall not dismiss the respondent in accordance with the threat to dismiss. This was because an order requiring the status quo in place to be reinstated "for all purposes" could convey the meaning that not only could the appellant not dismiss the respondent in accordance with any alleged threat but it could not dismiss her, or seek to vary her employment contract in any respect, for any reason: (at [42]). The Full Bench went on to observe (at [43]):

Whilst we note that s 89(8) enables the Commission to make an order under s 89(7) on such terms and conditions as the Commission determines, we do not consider an order that would have the effect of preventing the employer from terminating an employee’s employment for a reason not related to the alleged threat or from varying the contract of employment in any respect, was an order necessary or incidental to the primary order under s 89(7) or an order necessary to the “proper and effectual performance” of the primary order: See Hornsby Shire Council v Porter (1990) 19 NSWLR 716 at 725 referred to with approval in Four Sons Pty Ltd v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 at [6].

109 What may flow from these observations is that an order made under s 89(8) that bears no necessary or incidental relationship or connection to the factual context underpinning the making of the primary order (for example an order for reinstatement) will be beyond power. By contrast it is not at all apparent that the order under s 89(8) sought by the applicant in these proceedings would have the same outcome or effect. In its terms it is confined to the discrete issue of reinstatement for the purpose of an application being made for a medical discharge. It does not purport to apply in any wider context. It does not envisage multiple purposes but only a single purpose. In the present circumstances a medical discharge process for the applicant was clearly contemplated by Superintendent Commins. He took steps to formalise the process on 14 April 2008 by submitting a medical discharge application form in the applicant's name. Mr Bruce on 28 May 2008 thought it would be preferable, following discussions with Superintendent Commins for the applicant to exit via a medical discharge rather than by way of disciplinary proceedings. The HealthQuest Report's conclusion was that the applicant was currently unfit for any duties with no provision in the report for the applicant to work in permanent restricted duties. A condition imposed under s 89(8) as an incident to a primary order made under s 89(1) that the applicant not return to active duties in any capacity but apply for a medical discharge would not of itself in my view operate to ensure that the working relationship is not restored. Prior to the applicant's removal he had been formally suspended with pay from the NSW Police Force, the suspension having come into effect on 7 August 2007 according to leave records attached to the CCS. The medical evidence prior to and during this period, disclosed that the applicant was suffering from a psychological injury as a result of his police work which rendered him unfit for work. In Little (No 2) an order that the applicant at first instance be reinstated upon undertaking that he retire rather than resume his position with the Police Force is conceptually similar to the order for relief proposed by the applicant here, in that it did not envisage in the order for reinstatement any return to active duties.

110 In Dobbie the appellant argued, unsuccessfully that a term imposed under s 89(8) (that the respondent undertake as a condition of reinstatement not to consume any alcohol whether at work or otherwise) was not available because under s 89(1) the respondent could only be reinstated to his former position "on terms no less favourable to [him]". The proposed term it was said constituted a "less favourable" term.

111 In rejecting the argument the Full Bench said (at [42] [43]):

We are unable to discern any proper basis for reading down the provisions of s 89(8) of the Industrial Relations Act in the manner proposed by the appellant. The proposition that the Commission is to be straitjacketed as to the terms on which a person may be reinstated is inconsistent with the general discretion that is afforded to the Commission in determining what relief is appropriate under s 89 where a finding is made that a dismissal is harsh, unreasonable or unjust.

Moreover, given that s 89(8) applies to all orders made under s 89 (see Four Sons Pty Ltd v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 at [5]) as a matter of logic the appellant’s proposition would mean that the only term or condition that could be applied to a reinstatement order would be one “not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.” Such an order under s 89(8), and the power to grant it, would be otiose in light of the provisions of s 89(1) which provides:

The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

112 The observations in Dobbie provide support for the view that s 89(8) is a provision operating within the scheme of s 89 in relation to which the Commission has a general discretion to determine the appropriate form of relief, including a discretion as to what, if any, terms or conditions may be imposed on the form of relief.

113 As to whether it would be "impracticable" to make an order for relief in the terms proposed by the applicant because the risk of re-offending is neither low or acceptable, I do not see that the evidence supports such a conclusion. The evidence does not go so far as was suggested by the respondent that the applicant maintains a "deep-seated hatred" towards members of the police force. The applicant, during oral hearing, indicated that he continued to feel let down by the police force and he exhibited some feelings of hostility or animosity towards them. The evidence, however, supports a conclusion that the applicant has been improving and continues to improve on medication taken to alleviate his psychological symptoms. Significantly, after the incident of 24 November 2007 there has been no re-occurrence of incidents of misconduct or misbehavior perpetrated by the applicant. The applicant also expressed deep remorse for his misconduct and shame and embarassment for his actions during the two incidents in 2007. Because his injuries stem directly from work-related duties, specifically involving his exposure while on duty to serious motor vehicle accidents, an order reinstating the applicant on terms that he remain non-operational must add weight to the conclusion that the applicant is unlikely or highly unlikely to conduct himself in the manner in which he conducted himself during the two incidents, or to misbehave in any way that might bring the NSW Police Force into disrepute.

114 The applicant's desire for reinstatement is for the purpose only of being processed for a medical discharge. Given the matters outlined immediately above, an order for relief framed in the terms proposed would not in my view impact adversely on the integrity or safety of members of the NSW Police Force or members of the public.

115 In Perkins a Full Court of the Federal Court considered the meaning of "impracticable" in the context of an order for reinstatement of a dismissed employee under s 170EE (1) and (2) of the Workplace Relations Act 1988 (Cth), as the provisions were then in force. The approach to the issue in that judgment has been adopted in a number of decisions in this jurisdiction including Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 341 - 342; CCH Australia Ltd v Bowen (1998) 79 IR 206 at 217 - 218; Oswald v New South Wales Police Service (1999) 90 IR 42 at 67; and, Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [246] [247]. In Perkins the Full Court set out a number of principles for consideration of the issue whether an order for reinstatement may be "impracticable" (at 191 - 192). It should be borne in mind however that Perkins was concerned with an order for reinstatement to operational duties. This is not what is contemplated here. The applicant does not seek a return to work-related duties. Given these matters Perkins is distinguishable from the present case.

116 The respondent also relied on what was described as "highly unusual circumstances", namely that the applicant admits to virtually all the misconduct and has not been in a position to call any currently serving members of the NSW Police Force to support his reinstatement. It was said in advancing this particular contention that character evidence was a relevant consideration to the exercise of the Commission's discretion to order reinstatement as confirmed by the Full Bench decision in Toshack (at [69]). The decision in Toshack is in my view also distinguishable from the present circumstances. In Toshack the impugned conduct involved the telling of lies that misled a court. Mr Toshack during the proceedings before the Commission at first instance had led extensive character evidence to support his application. The Full Bench found error in the first instance decision on the ground that the trial judge had allowed himself to be influenced to the extent he did having regard to the character evidence led by the appellant. That evidence, the Full Bench said, was only acceptable if Mr Toshack had rehabilitated himself, and that conclusion was not available on the evidence (at [75] [76]). It is also noteworthy that Mr Toshack's integrity was on trial (as well as his conduct). The applicant by contrast was removed on the grounds of conduct and competence. His integrity was not in issue.

117 The respondent also contended that the making of a reinstatement order only for the purposes of a medical discharge could not result in the applicant being medically discharged, because numerous steps involved in the examination of the applicant's fitness have not been taken. The HealthQuest Report was said to be a preliminary step only in that process. For my part I do not see, accepting that this represents an accurate view of the process, that this would constitute a significant impediment to the making of an order for reinstatement for the purposes of applying for a medical discharge. If such an order were made, in terms, but the end result was that the medical discharge application was unsuccessful, then the order could incorporate a condition that the applicant resign in the event the application is unsuccessful. In Casari v Sydney South West Area Health Service (2009) 185 IR 217 a Full Bench of this Commission made an order that Mr Casari be re-employed in his former position but only for the purpose of him affecting a resignation from employment effective from the day immediately following the date of the Full Bench decision (at [75] [76]).

118 The respondent also relied on Blackadder for the proposition that the Commission had no power to make an order for reinstatement in the terms sought by the applicant. Blackadder is also distinguishable in my view from the present case. Under consideration in the judgment was s 170CH(3) of the Workplace Relations Act which contained a power to order reinstatement by appointing an employee in the position in which the employee was employed immediately before the termination of the employment. In a passage extracted from [44] of the judgment Callinan and Heydon JJ observed that reinstatement under the sub-section requires:

the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re-established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination. In cases where that last element cannot be achieved (as, for example, where the work formerly done is no longer required) the form of reinstatement for which s 170CH(3)(a) provides would not be appropriate and the question would become whether the alternative form of reinstatement (by appointing to another position) should be made.

119 At [77] of the judgment their Honours added:

In any event it is almost unthinkable that the Commissioner would have made an order that the appellant be reappointed had he thought that the appellant would either not be able to perform, or would not be allocated actual work by the respondent for him to do. The order made by the Commissioner should be read as Moore J in dissent in the Full Court preferred to read it, as an order intending that the appellant be reinstated, and that he be given work to do of the kind which he had done in the past.

120 To similar effect Kirby J in the same judgment said at [33]:

By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. In effect, if the respondent's argument were correct, it would permit the respondent to thumb its nose at the heart and core of the order made, namely that the appellant be "reinstated", that is, according to the word's derivation and ordinary meaning, "put back in place" in his former employment. The Act does not offer to the employer the power to buy its way out of the obligations imposed on it under a valid law of the Parliament. The employer is bound to comply with the order and the Act. Its failure to do so produces statutory consequences to which, by his orders, Madgwick J sought to give effect.

121 The issue in Blackadder concerned the employer's refusal to comply with an order to reinstate the employee (Mr Blackadder) to his former position. The employer effectively disobeyed the order and placed Mr Blackadder on garden leave with pay. The judgment was therefore concerned with the non-compliance of a court order by the employer and the attendant unfairness visited upon Mr Blackadder as a result of that non-compliance. The remarks of Callinan and Heydon JJ that the employer should have under the terms of the order provided work to be done, and the remarks of Kirby J that reinstatement is meant to be real and practical not illusory and theoretical must be read in that context. I should also add for completeness that it does not appear from my reading of the relevant statutory provisions under the Workplace Relations Act, under consideration in Blackadder, that there was a provision comparable or similar to s 89(8). The respondent did not direct my attention to any such provision.

122 In the event that the Commission were to find that reinstatement would not be impracticable the respondent contended that the Commission should nevertheless refuse to exercise its discretion. This contention was not supported by reference to any particular aspect of the evidence given during the proceedings, and the Commission was not given the benefit of any further elaboration on the matter. If the contention was advanced having in mind the seriousness of the applicant's conduct then an order for reinstatement in the terms proposed may, in my view, be accommodated in the same way as a Full Bench of the Commission approached the matter in Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288, at [117], that is, by incorporating into the terms of an order for reinstatement a condition that the applicant receive no back pay from the date of his removal in recognition that the applicant should bear some responsibility for his misconduct.

123 Several decisions of this Commission have made orders for reinstatement incorporating a term or condition under s 89(8) that an applicant immediately upon reinstatement apply for a medical discharge. None of the decisions have been the subject of successful appeal or review to a superior court on this issue. Other decisions of the Commission (also not the subject of appeal or review on the issue) have made orders for reinstatement or re-employment under s 89 of the Act on conditions that do not contemplate any return to work or active duty by the applicant concerned. I propose to mention some of the decisions by way of illustration.

124 In Little (No 2) a Full Bench ordered reinstatement on the condition that the applicant give an undertaking to retire. The Full Bench in that decision noted (at [92]) that the effect of the order was that the applicant would retire rather than resume his position within the service which would enable him to receive relevant superannuation benefits. In Cavanagh (at [32]) Peterson J made an order that the applicant be reinstated without compensation, conditional upon his undertaking in writing to the Commission that he apply for a medical discharge and in the event that application was unsuccessful that he resign from the NSW Police Force immediately upon being so notified. In Casari a Full Bench ordered that the applicant be re-employed in his former position on condition that he not return to work but immediately resign in writing effective from the day immediately following the date of the Full Bench decision. In Harrison v Commissioner of Police [2006] NSWIRComm 319 I made orders reinstating the applicant to his former rank in order to allow him to be medically discharged and to clear his reputation (at [93] [94]). In Allchin the trial judge below made an order reinstating the applicant to the NSW Police Service without pay and without compensation in respect of time not worked but conditional upon his undertaking in writing to the Commission that he attend a medical examination in consideration of a medical discharge, and that in the event that application was unsuccessful that he be deemed to have resigned from the Police Service. The Full Bench (at [27]) found no error in the form of the relief that would attract a grant of leave. In refusing leave the Full Bench ordered that the applicant have 21 days from the date of its decision to provide a written undertaking to the Industrial Registrar that he will attend for a medical examination and if that undertaking was provided that the rights provided by the trial judge as set out in the order for reinstatement were to be revived.

125 With these considerations in mind I propose to order that the applicant be reinstated subject to a number of conditions which will be imposed under s 89(8) and which are intended to ensure that the applicant is not returned to active duty in the NSW Police Service in any capacity, but is to take immediate steps to apply for a medical discharge. I propose further to incorporate into the terms of the order that the applicant not receive any back pay or compensation from the date of his removal until the date of this decision in recognition of the seriousness of the misconduct which formed the basis of his removal under s 181D(1). I also propose to include in the terms of the order a condition that if the applicant is unsuccessful in his application for a medical discharge that he resign forthwith from the NSW Police Force. The order for reinstatement is to take effect on and from the date of this decision and will include a term that the applicant remain on suspension on pay, which was the status quo preceding his removal.

Orders

126 The Commission makes the following findings and orders:

(1) The applicant's removal under s 181D(1) of the Act was harsh.

(2) The applicant is reinstated to the NSW Police Force on and from the date of this Decision on the following terms and conditions:

(a) the applicant will not return to active duty in any capacity but is to take immediate steps to apply for a medical discharge

(b) the applicant shall not receive any back pay or compensation from the date of his removal until the date of this decision in recognition of the seriousness of the misconduct which formed the basis of his removal under s 181D(1) of the Police Act

(c) immediately upon his reinstatement the applicant will remain on suspension with pay

(d) should the applicant be unsuccessful in his application for a medical discharge he will resign forthwith from the NSW Police Force

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LAST UPDATED:
10 February 2010