Lawrance v Commissioner of Police [2010] NSWIRComm 149 (12 November 2010)

Last Updated: 19 November 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Lawrance v Commissioner of Police [2010] NSWIRComm 149



FILE NUMBER(S):
IRC 37

HEARING DATE(S):
13 and 14 July 2010

DATE OF JUDGMENT:
12 November 2010

PARTIES:
Andrew Lawrance (Applicant)
Commissioner of Police (Respondent)

CORAM:
Walton J Vice-President


CATCHWORDS: POLICE - removal of police officer - conduct ground for removal - application for review - harshness only ground - relevant principles re harshness - off duty conduct - work Christmas party - display of Prince Albert piercing - exposure on two to three occasions - identification of witnesses - risk of exposure to others - offensive conduct - no members public present - divisive effect on party - immediate group witnessing not offended - other persons disassociate and remove from environment - appropriateness of conduct - Commissioner's Reasons - failure to adequately take account applicant's response - evaluation of substance of reasons - procedural issue not determinative - merit factors - gravity of misconduct - prior misconduct - contribution of alcohol - character evidence - impact on applicant - s 181F(3) - public interest - interests of applicant - harshness found - remedy - impracticable to reinstate - re-employment another position - Senior Constable - position available - applicant suitable for position - order for re-employment to be made effective 21 days - conditions re alcohol, promotion and warnings as to misconduct - parties to bring in draft orders - directions made

LEGAL REPRESENTATIVES
Ms P Lowson of counsel
Walter Madden Jenkins Solicitors
Mr J Murphy of counsel
Henry Davis York Lawyers

CASES CITED:
Anderson v Director General of the Department of Environment and Climate Change & Anor (2008) NSWCA 337
Becke v Commissioner of Police (No 4) [2010] NSWIRComm 74.
Burge v NSW BHP Steel Pty Limited [2001] NSWIRComm 117; (2001) 105 IR 325
Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410
Casari v South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217
Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458
Commissioner of Police v Evans (2006) 153 IR 144
Commission of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191
Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44
Commissioner of Police v Brennan (2008) 172 IR 56
Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2
Department of Health v Kaplan [2010] NSWIRComm 65
Director General, NSW Department of Health v Industrial Relations Commission of New South Wales (2010) 193 IR 244
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Hosemans v Commissioner of Police (No 2) (2005) 138 IR 159
Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263
Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37
McCabe v NSW Police Service [1996] NSWIRComm 105; (1996) 99 IR 361
Johnston v Commissioner of Police (2007) 169 IR 301
Little v Commissioner of Police No 2 (2002) 112 IR 212
Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231
Morgan v Commissioner of Police [2009] NSWIRComm 184
Morgan v Commissioner of Police [2010] NSWIRComm 67
Newton v New South Wales Police Service (1989) 87 IR 66
NSW Attorney General's Department v Miller [2007] NSWIRComm 33
Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167
Starr v Commissioner of Police [2001] NSW IRComm 226
Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420
Van Huisstede v Commissioner of Police (2000) 98 IR 57


LEGISLATION CITED:
Anti-Discrimination Act 1977
Industrial Relations Act 1996
Police Service Act 1990
Summary Offences Act 1988


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice-President

Friday 12 November 2010

Matter No IRC 37 of 2010

ANDREW LAWRANCE AND COMMISSIONER OF POLICE

Application by Andrew Lawrance for review of an Order under s 181D of the Police Act 1990

DECISION

[2010] NSWIRComm 149

1 This is an application made under s 181E of the Police Act 1990 ('the Police Act') by Andrew Lawrance ('the applicant') for a review of an Order made on 30 December 2009 ('the Order') by the Commissioner of Police ('the Commissioner') pursuant to s 181D(1) of that Act removing the applicant from the NSW Police Force ('the Police Force'). The Order was founded upon a determination by the Commissioner that he did not have confidence in the applicant's suitability to continue as a police officer. That determination was based upon one of the three statutory grounds available to the Commissioner for the removal of a police officer under s 181D, namely, the 'conduct' of the applicant: see Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [214] ('Van Huisstede').


2 The applicant's conduct on the evening of 11 December 2008 was central to the Reasons for the Commissioner's determination to remove the applicant on the ground of 'conduct' (but, it should be noted, not the sole reason).

3 During the course of the evening, the applicant, then holding the rank of Sergeant and the position of sector supervisor at Maclean Police Station, attended the 2008 'Lower Clarence Sector' police Christmas party ('the Christmas party') at a Chinese restaurant, known as 'Tommy's Chinese Restaurant' ('the restaurant'), situated at Clarence Street, Yamba, New South Wales.

4 The applicant on at least two occasions exposed his penis to which a bottle opener was attached by means of a ring (which was attached to the bottle opener) inserted into a piercing in his penis known as a 'Prince Albert' piercing. That behaviour was described by the applicant as a 'party trick', although on the evening in question, the applicant added to his misbehaviour the use of the opener to open a bottle of beer. The conduct, so described, shall be referred to generally as 'the impugned conduct').

5 In attendance at the Christmas party there were 24 adults and one child. There were 16 serving officers: two Sergeants, Sergeant Volker Ruehe and Sergeant Greg Levey, and 14 other officers who were junior in ranking to the applicant. The junior officers included: Senior Constable Peter Barnier ('SC Barnier'), Senior Constable Ralph Clark ('SC Clark'), Senior Constable Matthew Gosper ('SC Gosper'), Senior Constable Greg Hambrow ('SC Hambrow'), Senior Constable Ashley Harwick ('SC Harwick'), Senior Constable Sid Hill ('SC Hill'), Senior Constable Mathew Hinton ('SC Hinton'), Senior Constable Jane Morgan ('SC Morgan'), Senior Constable Rebecca Pipes ('SC Pipes'), Senior Constable Steven Pope ('SC Pope'), Senior Constable Lindy Roberts ('SC Roberts'), Senior Constable Matthew Sippel ('SC Sippel') and Senior Constable Daniel Wills ('SC Wills'). All officers including the applicant were off duty but attending a work Christmas party.

6 There were eight civilians who attended the Christmas party including the applicant's wife, Rebecca Lawrance. Other officers' wives who were present included: Karen Hambrow, Amber Barnier, Kim Palmer, Dana Pope and Sarah Hinton, who brought her newborn son, Caleb, to the restaurant, (it should be noted that the Hinton family left immediately after the meal and before the impugned conduct took place). Security guards, Jamie Stokes and his wife, Susie Stokes, also attended. They owned a security company in Yamba (I shall deal separately with whether they witnessed the conduct). The restaurant owner, Tom Chiu, and his staff were also present on the night.

7 Some persons who attended the Christmas party (police and non-police) witnessed the appellant's exhibition. Others had some knowledge of the unfolding events without direct observation or necessarily understanding all aspects of the 'goings on'. There was a controversy, to which I shall return, as to whether members of the public and other persons not attending the function saw or may have seen the impugned conduct.

HARSHNESS : RELEVANT PRINCIPLES

8 This brief recounting of the impugned conduct may explain why Ms P Lowson of counsel, who appeared for the applicant, confined the challenge to the Commissioner's decision to remove the applicant to the ground of harshness, thereby abandoning the other grounds (that the removal was unreasonable and unjust) found in the application for review (although Ms Lowson faintly hinted that such grounds may have still had some prospect).

9 Given that confinement to the challenge to the Commissioner's decision, and the propensity (in more recent times) for applicants under s 181E to rely on the ground of harshness as the principal or only basis for relief, it may be useful at the outset to devote some attention to explaining what factors may appropriately be taken into account in a review undertaken on that basis. Those factors and related general considerations are discussed in the remainder of this section of the decision.

10 Subject to certain stated exceptions, s 181G(1) of the Police Act applies the provisions of the Industrial Relations Act 1996 ('the IR Act') to an application for review under Div 1C of the Police Act in the same way as they apply to an application under Pt 6 of Ch 2 of the IR Act: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 at [9] ('Sewell No 2'). Section 181G(1) has the effect of applying to proceedings under s 181E of the Police Act the provisions of Pt 6 of Ch 2 of the IR Act in ”such a manner as to import the provisions of Pt 6 to the review proceedings (together with the corresponding adoption of the jurisprudence of the Commission with respect to unfair dismissal provisions of the IR Act) except where expressly excluded by the provisions of s 181G(1)": Little v Commissioner of Police No 2 (2002) 112 IR 212 at [65] ('Little No 2').

11 The determination of an application made under s 181E of the Police Act requires a finding as to whether the removal by the Commissioner itself was harsh, unreasonable or unjust: Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 at [11(b)]. Indeed, the entire point of the provision for review in Div 1C of the Police Act "is precisely to enable the Industrial Relations Commission to overturn the Commissioner's decision on the basis of a finding, to be made by the Industrial Relations Commission, that 'the removal is harsh, unreasonable or unjust'": Sewell No 2 at [75].

12 Section 181F(3)(b) states that the Commission "must have regard to the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to s 181D(1))". The public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust, or in determining the appropriate relief to be granted if the removal was found to be so: Van Huisstede at [216]; Starr v Commissioner of Police [2001] NSW IRComm 226 at [339]; Commissioner of Police v Evans (2006) 153 IR 144 at [5] and [62] ('Evans'); Commission of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191 at [58] ('Collins') (also see Little No 2 at [68]).

13 In Evans (at [5]), the view was expressed that s 181F(3) does not alter the fundamental test posed by s 84 of the IR Act, namely, whether the dismissal was harsh, unjust or unreasonable. In Little No 2 (at [68]) the Full Bench observed that a balance must be struck between the requirements of s 181G(1) and s 181F(3) as follows:

Further, the requirements of s 181F(3) are relevant to determining whether the removal of a police officer was harsh, unreasonable or unjust: see Van Huisstede (at [248]). However, those factors do not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters. The provisions of s 181F(3) are simply matters to which the Commission is also to have regard in making such an assessment (which, in any event, would be considerations broadly relevant in the adjudication of many unfair dismissal applications under the Industrial Relations Act) and particularly so where the proceedings relate to positions in the public sector or other areas where the public interest may have particular relevance.

14 This passage from Little No 2 conforms with the judgment of the Court of Appeal in Sewell No 2, where that Court emphasised that, despite the central significance of the Commissioner's role in a legislative scheme, the entire point of the provisions for review in Div 1C of the Police Act is to enable the Commission to overturn the Commissioner's decision on the basis of a finding that the removal was harsh, unreasonable or unjust. However, the observations of the Full Bench need to be understood, in my view, in the light of the Court of Appeal's view (in Sewell No 2 at [77]) that "the matters referred to in s 181F, most relevantly s 181F(3)(b), are entitled to weight as a fundamental element in the decision making process. Indeed, the section, in its overall context, is an indication that these considerations are entitled to substantial weight". This is the context in which the words ”must have regard to" in s 181F(3) must be read and applied (see also Sewell No 2 at [73]).

15 However, s 181F(3) does not dictate what weight or influence should be attributed to the factors referred to in the sub-section in determining an application made under s 181E. In Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 at [67], the Full Bench dealt with a submission made by the Commissioner as to a police officer driving under the influence of alcohol. That submission was described in the following way:

Mr Skinner contended that the respondent was not deserving of a third chance, particularly in the light of the need for his Honour to consider the maintenance of the integrity of NSW Police (see s 181F(3)(b) of the Police Act). Not only was he obliged as a citizen of New South Wales to abide by the law, but also as a sworn police officer he was charged by his oath of office, the Police Act, the Police Regulation, the Crown Employees (Police Officers) Award, and the New South Wales Police Code of Conduct and Ethics to abide by the laws that he breached. These duties it was submitted, weighed more heavily upon the respondent given his previous conviction and clemency shown to him then.

The Full Bench's assessment of the submission was as follows (at [66] and [67]):

There can be no doubt that Marks J was fully cognisant of the seriousness of the offence committed by the respondent and it may be accepted his Honour well understood the implications for maintaining the integrity of NSW Police if the respondent were to be reinstated. But his Honour was required to have regard to all of these considerations as well as the respondent's interests.

Section 181F(1)(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made. Ultimately his Honour decided, on balance, having regard to all of the circumstances, the dismissal was harsh.

(see also Collins at [54] and Johnston v Commissioner of Police (2007) 169 IR 301 at [62].)

16 These observations correlate to some of the passages of the judgment in Van Huisstede (paras [216] to [220]), which were adopted by the Full Bench in Collins (at [58]) and the majority in Evans (at [5]). It is unnecessary to repeat paras [216] and [217] of Van Huisstede, which should be read in the light of my earlier remarks. However, I would propose to set out, for the purposes of adoption (as the Full Bench did in Collins), paras [218] to [220] of Van Huisstede as illustrating the proper process for the balancing of public interest considerations. Those passages are as follows:

218 The subsection also makes clear that the public interest is only taken to “include” the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context):

Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree.

219 In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable.

220 In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner).

17 In relation to issues concerning integrity, the Court of Appeal in Sewell No 2 (at [72]) indicated that s 181F(3)(b) uses the language of institutional integrity rather than personal integrity, as identified in s 7(a) of the Police Act but, in the particular context of a reference to the integrity of the Police Service, the provision should be understood as encompassing any issue of integrity which arises with respect to the Order for removal of a particular officer to which the review by the Commission relates.

18 In Commissioner of Police v Brennan (2008) 172 IR 56, the Full Bench, after considering the terms of s 7 of the Police Act and the common law office of a constable, observed (at [66]):

The appellant submitted that the public interest, reflected in the conferral of the power in section 181D of the Police Act is concerned with maintaining a police force whose members are not only sworn to uphold and enforce the statutory mission and functions referred to above, as well as undertake the special responsibilities of the public office, but do so in fact. We agree with this submission.

19 The task of the Commission in undertaking a review under s 181E(1) is now well established as being constituted by the Commission making "a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted": Hosemans v Commissioner of Police (No 2) (2005) 138 IR 159 at [134] ('Hosemans No 2'). As earlier noted, Div 1C of Pt 9 requires the Commission, in the review, to consider whether the removal of the applicant police officer is "harsh, unreasonable or unjust". As noted in Collins at [61], the removal of a police officer may be either harsh, unreasonable or unjust "or a combination of all three".

20 In this case, the confinement of the grounds for review by the applicant require only a determination as to whether the removal was harsh; a process that involves mixed issues of fact and law: Burge v NSW BHP Steel Pty Limited [2001] NSWIRComm 117; (2001) 105 IR 325 at [4]; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37 at [82]; Dobbie at [18] and [40], Johnston at [25] and Evans at [1].

21 Distinguishing between what may be harsh, unreasonable or unjust may be sometimes elusive or involve a degree of circularity, but it is necessary for the Commission to state explicitly the basis upon which it makes a determination in a review undertaken under s 181E(1): Collins at [61] and see Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. Thus, the Commission must state explicitly which, if any, of the grounds pursued by the applicant under s 181E(1) are found to be made out. (In this case there is a single ground.)

22 The High Court of Australia discussed the distinction between the concepts of harsh, unreasonable or unjust in Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ stated (in the context of an award provision):

... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

23 The fundamental exposition of principle as to what may constitute 'harshness' in the removal of a police officer for the purposes of s 181E(1) is found in the decision of Watson J (made in the context of an unfair dismissal claim) in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233. In Little No 2 (at [70]) the Full Bench stated, in this respect, as follows:

In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated:

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.

(See also Department of Health v Kaplan [2010] NSWIRComm 65 at [29] ('Kaplan').)

24 The concepts of the 'severity' of the dismissal and 'too harsh a consequence' in Metropolitan Meat Industry Board naturally bring with them the notion that the assessment of harshness involves, in part, an evaluation of the gravity of any misconduct giving rise to the removal: Collins at [37] and Brennan at [70]. Thus, the question of proportionality arises (see Byrne at 465 and 467, Evans at [7] and Kaplan at [28]). Further, in the case of an application based on harshness, the Commission must take into account whether there were any mitigating circumstances (see Little No 2 at [70] and [71]).

25 Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F(3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36]).

26 Finally, I turn to the factors relevant to the consideration of mitigation. Many of those factors have been mentioned in the preceding paragraphs. It may be useful, however, to further illustrate some of these factors by a series of subject headings, as follows:

(a)Good previous service and character: the Commission may have regard to whether the applicant had a good service record and good professional and character references: Little No 2 at [83]; Collins at [62] and Evans at [7]. (I will discuss further the relevance of character references below.) However, the counterpoint is that prior misbehaviour may also be taken into account, even if not expressly considered in the Reasons for decision by the Commissioner: Collins at [37] and [38];

(b) Absence of a likelihood of re-offending: it may be relevant to consider whether there is any likelihood of the officer re-offending: Evans at [7]. This consideration may also include questions as to whether an undertaking was provided not to further engage in conduct which was causal of any misconduct: Dobbie at [34], [52] and [67] and Johnston at [42]. This consideration may depend very much on the particular circumstances of the case and the conduct engaged in by an applicant. The authorities make clear that relevant considerations in mitigation are whether the misconduct was due to an excessive consumption of alcohol and if the officer had taken steps to seek professional help to overcome that problem: Evans at [7], Collins at [67] and Dobbie at [34] and [52] (see a similar approach with respect to medical or psychological problems: Johnston at [43] and [61]);

(c) Acceptance of responsibility and remorse by the officer: objectively demonstrable remorse and contrition and the acceptance of responsibility may be taken into account as mitigating factors: Collins at [67] and Evans at [7];

(d) The stigma which may attach to the circumstances surrounding the removal from the Police Service: Hosemans v Commissioner of Police ( No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [26] ('Hosemans No 4');

(e) Consequences of the removal: in Little No 2 at [69], the Full Bench made it clear that "any exclusion of consideration of the consequences of a removal (even if prima facie the decision was in some way said to be 'justified') is erroneous as such an approach would effectively remove from consideration essential aspects of the statutory tripartite test, such as whether the removal was, in all the circumstances, 'harsh'". In Collins at [63], the Full Bench, in reliance on Metropolitan Meat Industry Board, adopted the approach in Little No 2 at [69], thereby emphasising the necessity to give consideration to "the consequences facing an employee and to the mitigating factors, including the immediate consequences of dismissal, such as the impact on superannuation" following the removal of a police officer. Both the financial consequences of the removal and the prospect for the applicant's economic future are relevant: Johnston at [70]. This factor will plainly have greater significance where it may be demonstrated that the impact upon the removed officer was, given the personal circumstances of the officer, particularly severe or, in some cases, out of the ordinary. It must be balanced with other factors bearing upon the question of harshness, not the least of which is the seriousness of the applicant's misconduct.

THE EVIDENCE : AN OVERVIEW


27 Much of the evidence before the Commission was uncontroversial (even in relation to critical aspects of the impugned conduct). This may be attributed, in some part, to the admissions made by the applicant during the course of the investigation by Detective Chief Inspector Jason Breton and in these proceedings but it is also a feature of the practical and co-operative approach to the disposition of the proceedings adopted by Ms Lowson and Mr J Murphy, of counsel for the respondent; an approach which, unfortunately, is often found wanting in proceedings of this kind in more recent times.

28 An agreed statement of facts was produced as to the following matters: no officer advised the applicant to refrain from engaging in the impugned conduct; no disciplinary or other action was taken against any other police officer attending the Christmas party; the applicant remained on operational duties and retained his appointments until October 2009 and no criminal proceedings were commenced against the applicant. Other aspects of the evidence, as I have noted, were uncontentious.

29 Nonetheless, there were some matters of fact about which there was a strenuous contest. These issues require resolution in accordance with the orthodoxy for the resolution of evidentiary matters in cases of this kind (see Hosemans No 2 at [128] to [132]). That task will be undertaken principally in the following section of this decision entitled 'Factual Findings as to the Events of 11 December 2008 and the Impugned Conduct'. However, I will make some further remarks about those issues below.

30 The applicant's evidence was given orally under oath and was contained in a Statement and an affidavit in reply, both of which were admitted into evidence without objection. The applicant also put into evidence his submission in response to the Notice and his Record of Interview ('ROI') given to Chief Inspector Breton on 16 January 2009. The applicant was called to give evidence and was cross-examined by Mr Murphy.

31 I gave close attention to the applicant giving his evidence and have formed the view that he was a witness of credit who gave forthright, consistent and reliable evidence of matters within his memory. His evidence was frank, accepting, where applicable, the limits of his own knowledge or understanding. His account of events was, within those limits, consistent from his earliest recounting of the episodes and largely corroborated by the statements of other police officers, particularly those most directly observing his conduct. (I have made an allowance, in this respect, that some of those officers may have been friends or more intimate colleagues but nothing in the evidence points to any particular deficiencies or limitations in their evidence arising from that consideration.)

32 The applicant attached a copy of a report by Ms Wendy McCartney, psychologist, and references from a priest, nurse, his wife and 12 serving police officers in his response to the Commissioner. The officers gave reference as to his good character, performance and rank in the Police Force (with 11 of the officers providing a further statement, after the Commissioner had given his Reasons for Removal, stating that their view of the applicant remained unchanged).

33 Mrs Lawrance also provided a reference in support of the applicant on 25 October 2009 which dealt briefly with the impugned conduct.

34 Mr Murphy tendered a bundle of material described as 'respondent's evidence'. That bundle contained, inter alia, the Notice, the applicant's response to the Notice, the Order and Statement of Reasons of the Commissioner and Commissioner's Confidence Submissions ('CCS') (which included the statements of the 16 police officers who attended the Christmas party and the applicant's ROI).

35 Some particular reference should be made about the statements contained in the bundle which were referred to by both parties in submissions going to the resolution of the contested factual issues.

36 All 16 police officers who attended the party gave formal statements to investigating officer, Detective Chief Inspector Jason Breton, in January 2009. Detective Chief Inspector Breton also prepared a statement. In those statements, the following persons gave a first hand account of their observations of the impugned conduct: SC Harwick, SC Gosper, SC Pope and SC Sippel. Other officers, who also gave an account of the night that made reference to the impugned conduct, were: Sergeant Ruehe, SC Barnier, SC Morgan, SC Clark and SC Pipes. These people became aware of the impugned conduct at the restaurant but did not directly witness it. Sergeant Levey, SC Wills, SC Hinton, SC Goodwin, SC Roberts, SC Hill and SC Hembrow gave no evidence concerning the impugned conduct. No objection was taken by counsel for the applicant to the tender of their statements as part of the CCS material. The statements formed one part of the material considered by the Commissioner and were relevant to the evaluation of the Commissioner's reasons for removing the applicant. On the whole of the material before me, it may be accepted that the statements represent an attempt by the officers to give an honest account of the evening in question, no doubt affected by the usual limitations of human recollection and the differences occasioned by their capacity for observation on the evening.

37 However, it must be observed that the statements were not the subject of any clarification or elaboration as a result of evidence, in affidavit or statements form, adduced in these proceedings or tested in cross-examination (as the officers were not called to give evidence). That must affect the weight which may be given to those statements, particularly where the officer's account lies in direct conflict with a cogent account by the applicant which has been the subject of affirmation and testing by cross-examination in these proceedings. That said, I have (as will be observed below), nonetheless, undertaken, in the light of the approach adopted by the parties, an overall evaluation of the available material with respect to each factual issue.

38 As will be later discussed, Mrs Lawrance and Mrs Pope attended the evening and witnessed the impugned conduct but did not provide a statement to Detective Chief Inspector Breton (or give evidence in the proceedings other than, as I have noted, Mrs Lawrance's statement being tendered in the proceedings). Mrs Lawrance dealt with the impugned conduct in her character reference . The restaurant proprietor, Tom Chiu, made a statement but indicated that he did not witness "any person expose themselves" in his restaurant. No statement was taken from Mr and Mrs Stokes.

39 This is the evidentiary context upon which factual findings may be made. I will set out the general factual background below before turning to the particular circumstances of the evening on 11 December 2008, resolving factual controversies where they arise. The discussion of the impugned conduct will take the course of discussing the evening sequentially in light of each factual occurrence of the impugned conduct.


FACTUAL BACKGROUND : A DESCRIPTION OF THE APPLICANT AND HISTORY OF HIS POLICE CAREER AND SUBSEQUENT EMPLOYMENT


40 At the time of the applicant's removal from the Police Force he had completed 14 years of service. The applicant is 33 years old. He married Rebecca Lawrance in 2004 and has three children with her: a daughter Lacy aged five, and two sons, Marley, aged three, and Tye, who is nine months of age. His wife also has another son Wyatt who is 15 years of age. Wyatt has had no contact with his natural father for six years and regards the applicant as his father.

41 The applicant, his wife and their four children live in a recently purchased family home at Maclean on the north coast of New South Wales. The family home is in joint names. The applicant and his family had previously lived in police residences at Maclean. The applicant and his wife now have a substantial mortgage of $295,000 over their family home and the monthly repayments are $1,829.

42 The applicant had long harboured a desire to be a member of the NSW Police Force. In 1992 the applicant, then in year 10 at Inaburra High School, Bangor, completed his work experience at Engadine Police Station.

43 On 19 November 1995, the applicant commenced at the Goulburn Police Academy. On 17 May 1996, he graduated from the Academy and became a Probationary Constable at Sutherland Patrol. On 1 July 1997, the applicant was appointed as a Constable at Bankstown Local Area Command (LAC) and spent time with proactive operational teams such as the 'Target Action Group'.

44 The applicant was the subject of two complaints in December 1997 and 1998. The first concerned his behaviour, whilst off duty, at the Revesby Workers' Club, and the second complaint involved the use of incorrect procedures. No disciplinary action was taken with respect to these complaints and the incidents did not feature in the Commissioner's Reasons for Removal.

45 In 1997, the applicant was awarded two certificates of appreciation, with one commendation reading: "dedicated and diligent service to the Revesby Patrol". In 1998, the applicant was awarded a Certificate of Achievement by the Bankstown Local Area Commander for "Outstanding operational practice within the Command during 1998". In 1999, the applicant was given two more certificates from the Bankstown Local Area Commander.

46 Later, whilst the applicant was stationed at Bankstown LAC, he was the subject of an investigation following his appearance before the Police Integrity Commission (PIC). Three adverse findings relating to his conduct were made against the applicant. Those findings related to events which occurred in 1999 and 2000, but do not have the same features as the impugned conduct. They were relied upon by the Commissioner in his Reasons for Removal and will be later discussed in more detail.
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47 On 26 May 2002, the applicant became a Senior Constable at St George LAC.

48 On 27 April 2003, the applicant transferred to Wanaaring (a single unit station) and continued in the rank as Senior Constable. In that same year, the applicant received a complimentary remark on his service record for the arrest of an offender following a complaint received about an intoxicated motor vehicle driver.

49 On 16 August 2005, the applicant was appointed as a Sergeant at Bourke Police Station and completed various periods relieving in higher duties at the rank of Inspector/Duty Officer.

50 In September 2005, the applicant engaged in conduct at the Wanaaring Hotel which had some features in common with the impugned conduct. As a consequence he was counselled in June 2006. I will return to this matter later under the heading of 'Prior Complaints, Warnings and Incidents'.

51 In late September/early October 2005, the applicant successfully completed the Sergeant's Course in Goulburn. The applicant was issued with a Certificate of Completion on 2 February 2006.

52 The applicant was awarded the NSW Police Medal for 10 years of diligent and ethical service in 2007. He also represented the NSW Police Force at the World Police and Fire Games in Adelaide and won a gold medal in Karate.

53 In March 2008, the applicant was awarded the 'Greg Jackson Award' for being the 'Officer of the Month' in the Darling River LAC.

54 The applicant was transferred to Grafton Police Station on 18 May 2008, where he performed general supervising duties. In that same month, the applicant was presented with a NSW Police Force plaque from the LAC to recognise his 'Committed and Dedicated Service' whilst stationed in Special Remote Locations within the Darling River LAC between 2003 and 2005.

55 In September 2008, the applicant was posted to the Maclean Police Station as Sector Supervisor. The Maclean sector is part of the Grafton unit.

56 The applicant then began a period of relieving as the Operations Commander for the Clarence Valley at the rank of Inspector/Duty Officer in December 2008. There are nine police stations in the Valley: Grafton, Wooli, Nymboida, Copmanhurst, Maclean, Ulmarra, Lawrence, Iluka and Yamba.

57 On 11 December 2008, the applicant was engaged in the impugned conduct.

58 Four days later, on 15 December 2008, the applicant heard a rumour that a complaint had been made about his behaviour on the evening of 11 December 2008. On 29 December 2008, the applicant was removed from relieving in higher duties in the duty officers' position at Grafton. As a result, the applicant, on that day, contacted the Professional Standards Duty Officer, Chief Inspector Jason Breton, and gave an account of his conduct on the evening of 11 December. The applicant co-operated with Chief Inspector Jason Breton's investigation of the matter.

59 In early January 2009, the appellant, of his own volition, sought assistance, support and counselling through the NSW Police Employee Assistance Program. On 16 January 2009, the applicant was required to undertake a directed interview about the evening of 11 December 2008 and the impugned conduct with Chief Inspector Jason Breton. As a result of the impugned conduct and an ongoing disciplinary investigation, Superintendent Mark Holahan, the applicant's Local Area Commander, stood the applicant down from relieving at the rank of Inspector/Duty Officer in January 2009 and moved his work location from Maclean to Grafton. That move resulted in the applicant's family vacating the subsidised police residence at Maclean and buying the aforementioned home.

60 Initially the applicant's duties were that of Shift Supervisor at Grafton, but after two weeks of service at that location, the applicant's duties were changed to that of Station Manager.

61 On 17 March 2009, six counselling sessions were approved for the applicant with psychologist, Wendy McCartney. She gave reports dated 25 September 2009 and 22 January 2010. The report was supplied to the Commissioner as part of the applicant's response to the Notice.

62 On 7 October 2009, the applicant was served with a Notice, dated 1 October 2009, pursuant to s 181D(3)(a) of the Police Act ('the Notice'). The applicant responded to the Notice on 27 October 2009 by the making of a submission ('the submission' or 'the response'). However, as earlier mentioned, on 30 December 2009, the applicant was served with an Order removing him from the Police Force.

63 Until the applicant was removed from service he remained the Station Manager at Grafton. At times, when the Local Area Command was short staffed, the applicant was rostered to perform duties as the Shift Supervisor and the Custody Manager at Grafton Police Station.

64 In his response to the Commissioner's Notice, the applicant gave the following assessment of his financial prospects:

...if I am removed from the Police Force, my wife and family will suffer dreadfully. Frankly, I do not know how we would survive financially and the thought of me losing my job is quite frankly too awful to contemplate.

65 After his removal, between January and April 2010, the applicant unsuccessfully applied for four jobs with the Roads and Traffic Authority. In February 2010, the applicant was employed on a casual basis, at the bottle shop at the Argyle Hotel in Maclean, working on average 22 hours per week and earning on average $387 per week (his former gross income as a Sergeant was $88,995). He remained in that position at the time of the hearing of his review application.

66 The applicant's wife, was, at that time, employed as a part-time clerical officer with the Department of Corrective Services. She works 28 hours each week and her weekly net salary is $765. The applicant was the main income provider until his removal. Since the applicant's removal from the Police Force the family's weekly financial expenses are now greater than their income. The family has been relying on equity from the family home to meet its expenses and has been cutting costs. The applicant estimated that, if unsuccessful in his application, he and his wife will need to sell the family home. The financial stress did place a strain on the applicant's marriage and wellbeing.

FACTUAL FINDINGS AS TO THE EVENTS OF 11 DECEMBER 2008 AND THE IMPUGNED CONDUCT

Restaurant - Arrival and Layout

67 On the evening of Thursday 11 December 2008, a group of officers, including the applicant, attended SC Hembrow's residence at around 6.00 pm. At 7.00 pm the police officers walked to the restaurant. By 7.30 to 8.00 pm, all attendees of the Christmas party had arrived at the restaurant. They were at the restaurant for approximately three and half hours prior to the last of the group leaving. The last remaining group left the restaurant and walked to the Pacific Hotel.

68 It was a social occasion. All officers were drinking alcohol except SC Roberts. The party table was arranged on the front verandah section of the restaurant in an L-shape and was the only table on the verandah. The applicant was situated at the "top end of the L" . No map was provided in the proceedings of the layout detailing the restaurant, its location in Yamba or the positioning of the table. There was no evidence as to the size of the table but its dimensions can be garnered from the fact that it consisted of 24 seats.

69 The front of the restaurant was partitioned from Clarence Street by thick, weatherproof, clear, plastic sheeting. The applicant sat facing the plastic sheeting with his back to the inside area of the restaurant. He stated he was on the "end closest to the corner of the portioned area where the sheeting was". The sheeting was lowered. There was some evidence to suggest it was raining heavily at times during the evening. However, the applicant was unable to recall the weather conditions. It was, however, a dark night, and the balcony area was well lit.

70 In his ROI, the applicant stated that the sheeting was "thick and you couldn't sort of clearly see outside as far as the sheeting goes". He was cross-examined on the possibility of someone outside the restaurant being able to see what the he was doing on the evening.

71 Mr Murphy submitted that it may have been possible for someone walking past to see the applicant's impugned conduct and been offended. The only evidence on this question, which I accept, came from the applicant in cross-examination as follows:

Q. The plastic sheeting that we were told was down around the balcony was clear plastic sheeting wasn't it?

A. Yes it was.

Q. The light was on the balcony wasn't it?

A. Yes.

Q. And it was a dark night?

A. Yes.

Q. People walking past could have seen what you were doing?

A. No, I don't agree that.

Q. You cannot completely discount that possibility can you?

A. I can because I know that there was no nobody else around and the plastic sheet that surrounded our area was thick and it was the type of sheeting that if you look through it gives a distorted type view. You could see, if you looked through it you could see that people were seated but it wasn't thin that you could see through it.

Q. The first proposition you put was that there was nobody else around. How do you know that?

A. Before I performed the party trick I was conscious enough of who was around to ensure that only those who were there saw what I was going to do.

Q. Going back to the potential someone outside of the restaurant seeing what you were doing. How were you able to ensure that there was no-one outside that may have seen?

A. Again, I was considering when I left the restaurant of who was outside. There was nobody other than the people at our party.

72 No other evidence was called in the proceedings as to the layout of the restaurant, its visibility to the surrounding streets or the frequency or type of use by the public of Clarence Street. I find that the plastic sheeting was translucent and certainly not transparent. Even though the restaurant was well lit, members of the public walking outside (to the extent there were such persons) could not have observed activities within the verandah of the restaurant with sufficient clarity to witness and/or apprehend the impugned conduct.

Mingling after Dinner


73 At around 10.00 pm dinner was completed and the bill was paid. The party guests started 'mingling' and moving seats. Some officers went outside the restaurant (there was no statement given from any of the officers who were outside as to whether there were any members of the public outside the restaurant or if they could see through the plastic sheeting).

74 There were some inconsistencies in the evidence as to who was where after the bill was paid. It does appear that the guests moved seats or positions within the restaurant and were coming and going from outside the restaurant.

75 The applicant remained in his original seat at the "top of the L" after dinner. The applicant disclosed in his ROI that he was sitting next to his wife and "Steve Pope, was either sitting next to me or across from me". The applicant was unable to recall in his ROI or cross-examination whether there were two or four other people seated with him at the end of the table and who they specifically were after the meal had finished and the mingling had occurred. Thus, the applicant accepted that there may have been two to four people in addition to SC Pope, Mrs Pope, Mrs Lawrance and himself.

76 The applicant was seated with Mrs Lawrance, SC Pope and Mrs Pope during and following the meal. The two to four additional officers who were seated in close proximity to the applicant (based on their statements) were SC Hardwick, SC Sippel, SC Pipes and SC Gosper.

77 The statements of SC Pope, SC Gosper and SC Hardwick were consistent with the applicant's account of where he was and who he recalled he was seated with when the meal was finished.

78 In his statement, SC Pope said:

Sometime after the bill was paid, about 10pm, people started mingling about. Some people moved seats. Some people went outside and everyone was chopping and changing. Dayna and I were sitting opposite Sergeant Andrew Lawrance and his wife Rebecca. They were facing us and Andrew had his back turned to everyone else who may have been in the restaurant.

79 Senior Constable Hardwick gave the following statement:

About 10pm when everyone was mingling, I moved down the other side of the table and sat next to Matt Gosper. We were talking for a while with a group. There was Steven Pope, Dayna Pope, Rebecca Lawrance, Andrew Lawrance and Greg Hembrow.

80 Whilst SC Gosper, in his statement, said:

I basically stayed at the table. I was seated next to Kim Palmer to my left and Jane Morgan to my right. Some people had left and were mingling at the other end of the table and some were talking outside in the carpark. I was at the side of the table with Andrew Lawrance, his wife, Dayna Pope, Steven Pope, Matt Sippel and Ashley Hardwick.

81 There was no statement taken from Mrs Palmer as to where and with whom she was seated on the evening. SC Morgan's account of where she was seated was consistent with SC Gosper's recollection. She stated, "sometime after the bill was paid I changed from sitting next to Senior Constable Matt Gosper and sat with a number of other people including Sergeant Levey and Senior Constable Sid Hill". Ms Morgan also said she went outside where SC Pipes, SC Clark and others were standing before returning back to her original seat next to SC Gosper.

82 Senior Constable Pipes, in her account, said that after the bill was paid, everyone started to mingle and move around. She said she moved to the "far end of the table, with Steve Pope and Dana and Rebecca and Andrew Lawrance".

83 In his statement, Sergeant Levey said he sat next to the applicant at dinner but moved shortly after the bill was paid to sit next to SC Hill. SC Sippel's recollection was that he "moved down to the other end of the table" closer to the applicant.

84 There was an inconsistency between the statements of SC Hardwick and SC Hembrow as to whether SC Hembrow was involved in the group sitting with the applicant, as SC Hardwick, in his statement, claimed he was present. This was inconsistent with SC Hembrow's statement who said he "sat at the far end of the table with Ashley Hardwick, Sid Hill, Amber and Peter Barnier and my wife Karen" and that he had "no specific memory of the night". Given some additional inconsistencies which I later find between SC Hardwick's statement and other accounts of the evening and the conformity between SC Hembrow's statement and other accounts given by the group situated nearer to the applicant, I accept SC Hembrow's version as given in his statement.

85 Other officers who made statements said nothing about the location of the applicant or with whom he was seated at the conclusion of the meal.

86 Based upon the applicant's evidence and the statements of the officers, I find that the applicant was seated at one end of the L-shaped table with Mrs Lawrance, SC Pope and Mrs Pope (they were in the immediate group) after the meal had finished and the mingling had commenced. The following officers were also seated in close proximity to the applicant at that time: SC Hardwick, SC Sippel, SC Pipes and SC Gosper.

Conversation re Piercing

87 Sometime after 10.00 pm, a conversation regarding 'tattoos and body piercings' occurred. SC Pope, SC Hardwick, SC Gosper, SC Pipes and SC Sippel all recalled the conversation about tattoos and piercings with the applicant in their statements. Mrs Lawrance and Mrs Pope were also present during the conversation.

88 The applicant explained, in his ROI, that "we were all talking about these tattoos and body piercings and then over a few minutes I suppose the conversation got onto to the fact that I've got my penis pierced". He then revealed he had a 'party trick' (that is, the piercing) which he would "normally do in some sort of closed company" with people he knew and was socialising with.

89 The applicant conceded, in cross-examination, that he raised the topic about the fact he had his penis pierced. He also explained what the 'party trick' involved:

Q. You then say: "I have come out with. I have got a party trick which I have done before normally in closed company "do you see that?

A. Yes.

Q. So, again you raised the issue of the party trick?

A. Yes.

Q. When you say: "Normally in closed company "what do you mean by that?

A. People that I know: Certainly not in front of strangers, people that are.

Q. In public places?

A. At times.

90 The applicant was not wearing a ring through his piercing on 11 December 2008 (and has since had the piercing removed). In his ROI, the applicant explained that a 'Prince Albert' was a piercing that goes in from the underside of the penis and pierces the skin between the underside of the penis and the urethra and "what happens is the other end of the piercing comes out the eye of your penis". The applicant threaded the key ring of the bottle opener in through the underside of his penis and the urethra and out through the eye. He also clarified that when he referred to 'the piercing' he uses the expression interchangeably to mean either the ring or aperture.

Preparing for the 'Party Trick'

91 It is unclear how long this topic was discussed for before the applicant went to the toilet with SC Pope's bottle opener which was on the table. The applicant was in the toilet for approximately 5 to 10 minutes and inserted the 'ring', which was attached to the bottle opener, through the aperture (which was the piercing) of his penis (as earlier noted, there was not a pre-existing ring through the piercing at the time).

92 Mr Murphy submitted that, as the applicant had inserted the ring attached to the bottle opener and concealed it into the piercing of his penis (and not just attached the bottle opener to a penis ring), this was an exercise that would have taken considerably more time, planning, effort and even discomfort than simply attaching an object to a pre-existing ring. In cross-examination, the applicant stated the "material was quite malleable" and he was able to open the ring up and insert it through his penis piercing without difficulty.

93 Whilst this explanation by the applicant may be accepted, it must also be accepted that, given the method used and the time taken in preparation, additional planning and effort would have been involved in preparing the 'party trick' than if a simple attachment to a ring have been employed by the applicant.

Intention

94 It was suggested in cross-examination by Mr Murphy that it was the applicant's clear intention, after he had attached the bottle opener, to come back to the group with whom he had been sitting prior to going to the toilet, with a view to exposing his penis (with the bottle opener attached), that is to carry out the 'party trick'. The applicant conceded it was his intention to show the 'party trick' but not necessarily to open a beer bottle. This much does not seem to be in dispute but it is appropriate to set out the applicant's cross-examination on the issue as it goes to his state of mind in contemplation of the impugned conduct:

Q. I want to suggest to you that, when you went to the men's room and attached the bottle opener to your penis, it was your clear intention to come back to the group and to expose your penis with the bottle opener attached to it. That was the party trick, wasn't it?

A. Absolutely.

Q. And it was then going to be used and in fact was used to open beer bottles?

A. It was used to open a beer bottle, yes.

Q. It was your intention that that would occur?

A. Not necessarily to open the beer bottle, no.

Q. From the time you obtained the bottle opener you think from Steve Pope, left the table, went to the men's room, inserted the key ring thing in your penis and then returned and before you actually exposed your penis, can you remember what sort of time that would have taken roughly?

A. My recollection would be that it was somewhere from five to ten minutes.

Q. But you did what you did quite deliberately because you knew what you were intending to do later on?

A. Yeah, that's right.

Q. And you had plenty of time to think about it - think about the wisdom of what you were going to do, didn't you?

A. I certainly knew what I was going to do when I went to the men's room.

Q. And there was plenty of time - had you thought better of it - for you to not go ahead with your intention, wasn't there?

A. If I had considered that, yes.

95 It is also appropriate to set out the following section of his ROI:

I've come back out to the table and the people that were present in, in sort of a group where I was were all laughing and, come on, sort of, show us and show us your party trick and all this sort of stuff and people laughing and, and then I've said, Oh you know, you want to see it, You want to see it? I'm going to you know, show you, and all that sort of stuff and everyone wanted to see it and, and I was, I'd had a fair few to drink and then I've, I was over at the table with the, the group that were in front of me and then I've undone my fly and I've just exposed the end of my penis which had a piercing in it to the people that were directly in my company that were in front of me. Anyway, everyone laughed and you know, thought it was hilarious and anyway so that was that. It was only for a matter of seconds you know, until people saw it and then it was put back in and then of course the conversation kept going on about the piercing ...

First Occurrence

96 Approximately ten minutes later the applicant returned to where he had been seated at the table, next to his wife and opposite SC Pope and Mrs Pope. He was wearing a long pair of camouflage trousers, t-shirt and thongs. His trousers were zipped.

97 Thus, when the applicant returned to the table he took up a position in which he had his back to the restaurant and was facing the plastic sheeting. He then rose off his seat. There was a discrepancy as to whether the applicant was standing or seated when the first occurrence of impugned conduct occurred. There was no evidence from the applicant as to whether he was seated or standing when he engaged in the conduct. He was neither asked in his ROI nor cross-examined on the issue. However, he did concede in cross-examination that on the first occasion his penis "would have been more exposed than what it would have been the second time".

98 Senior Constable Pope claimed in his evidence of the first occurrence that the applicant was "seated" and was "fairly discreet as to how high he lifted his body". SC Gosper and SC Hardwick believed he was standing when he exposed his penis on the first occasion. SC Morgan also gave evidence to the effect that she left when the applicant stood up. I find on the balance of probabilities that the applicant stood up to carry out the 'party trick' in the first occurrence.

99 The applicant then unzipped his trousers and exposed his penis with the ring and the bottle opener attached.

100 The applicant stated that the immediate group seated at the end of the table consisted of Mrs Lawrance, SC Pope and Mrs Pope (the same people who were seated with the applicant after dinner). He again conceded there were two or four more people present but was unable to identify who the officers were. This was tested by Mr Murphy under cross-examination:

Q. We know that there were at least two women in the group - that was your wife and Steve Pope's wife?

A. Yes.

Q. You're unable to say whether the two or four other people you have referred to included any women?

A. I don't know.

Q. You can't say one way or the other?

A. No.

101 The applicant, in his ROI, stated that he knew his wife, SC Pope and Mrs Pope definitely saw his penis (Ms Lowson accepted that Mrs Lawrance and Mrs Pope witnessed the occurrence). He was unable to recall who else "was in the group" but that "whoever was there would've obviously seen it".

102 Senior Constable Pope, SC Gosper, SC Hardwick and SC Sippel also witnessed the first occurrence, and were seated at the table after the applicant returned from the toilet.

103 Senior Constable Pipes went outside when the term 'party trick' was mentioned and did not witness the first occurrence. SC Morgan on the other hand, had returned to the table from outside and was seated next to SC Gosper. SC Morgan had missed the initial conversation regarding piercing and tattoos. In her statement, SC Morgan heard the applicant talk about a 'party trick' and saw him stand up with his "hands around where his belt area was". SC Morgan said she knew what was about to occur: "I heard him talk and other people talk during the night about a party trick and it had something to do with Sergeant Lawrance's penis". SC Morgan "didn't want to see what was happening" because she "would have found it offensive", so she stood up and sat next to SC Hill and Sergeant Levy and did not witness the occurrence.

104 Hence, the following persons witnessed the first occurrence: SC Pope, SC Gosper, SC Sippel, SC Hardwick, Mrs Lawrance and Mrs Pope.

105 The exact time at which he engaged in the impugned conduct is unknown but the duration was a couple of seconds.

106 The applicant was well affected by alcohol when he engaged in the first occurrence of impugned conduct. The applicant had started drinking beer, 'XXXX Gold' (mid strength) and then consumed wine with his meal followed by cans of pre-mixed rum.

Second Occurrence

107 Some time later in the evening, the applicant was involved in a second occurrence of impugned conduct.

108 The time frame between the first and second occurrence was unclear based on the evidence. However, there was some evidence to suggest that the second occurrence of impugned conduct did not immediately follow the first occurrence. It was reasonably clear from Sergeant Ruehe statement that one or both occurrences happened towards the end of the night. In his statement, Sergeant Ruehe said he remained outside after the bill was paid, around 10.00 pm, and did not return inside "as it was the end of the night".

109 The applicant stated, in his ROI, that the conversation "continued on" about his piercing before he exposed his penis again to the group.

110 The evidence disclosed that people were still moving seats and moving between the restaurant and outside of it between the first and second occurrence. According to the applicant's evidence (and this was supported by SC Pope in his statement) the conversation continued with the same nucleus of people who witnessed the first occurrence: Mrs Lawrance and SC Pope and Mrs Pope. However, he accepted that additional or different persons from the party may have been present at the second occurrence.

111 Senior Constable Hardwick and SC Gosper gave evidence in their respective statements that they were present during the "continued conversation" regarding the piercing.

112 Senior Constable Sippel, who was present for the first occurrence, gave no evidence as to the second time the applicant exposed himself. SC Morgan, as stated earlier had removed herself from the situation after the first occurrence.

113 Senior Constable Clark stayed outside and had no interest in seeing what the applicant was doing. He claimed there was a general discussion about the 'inappropriateness' of what had occurred and recalled someone saying "his dick was pierced and he has a bottle opener on it". He also stated "people were generally laughing and joking about something that had occurred inside at the table". SC Pipes was also outside and knew people were talking and laughing about what was going on inside. SC Pipes later returned inside but said she "did not see anything as to what might have had the group laughing".

114 Sergeant Ruehe, Sergeant Levey, SC Wills, SC Hill, SC Roberts, SC Hinton, SC Goodwin and SC Hembrow, gave no evidence regarding the second occurrence of impugned conduct.

115 Senior Constable Barnier gave no direct account of the first occurrence. He did, however, refer to "a lot of yelling and yahooing and people laughing" after 10.00 pm. He also recounted being asked to: "Come and have a look at this". It is a reasonable inference that SC Barnier was referring to, without witnessing it, the first occurrence. With this consideration in mind, and on the balance of probabilities, I find the account of the impugned conduct given by SC Barnier concerned the second occurrence (this broadly correlates to his time estimate of about 10.40 pm). It might be noted that SC Barnier does not mention a third occurrence (which I shall discuss below).

116 The applicant was cross examined as to SC Barnier's statement, and responded as follows:

Q. Paragraph 14, over the page, behind tab 9, "Steven Lawrence" - this is about seven lines down from the top of the second or third page - "Andrew Lawrance opened the beer bottle with the beer bottle opener that was allegedly attached to his genitals" - do you see that?

A. I haven't got the statement in front of me but I am familiar with it.

Q. Does that assist your recollection? That you opened the beer bottle with the opener still attached to your penis?

A. It doesn't - it doesn't assist my recollection. I certainly can't speak for Senior Constable Barnier but I can certainly indicate that Senior Constable Barnier - the incident or the occasion with - that he's referring to, may well be the one occasion when Pope opened up the beer bottle because I certainly can't recall another occasion.

117 Senior Constable Barnier's account of the impugned conduct was as follows:

I can't remember exactly all the people who were left at the table there, but I remember seeing Steven Pope, Matthew Sippel and Jamie Stokes. I had a brief conversation to Jamie Stokes about general things and I remember Sergeant Lawrance yelled at me to get a stubbie of beer and to bring it over to him. I declined as I was not drinking. About this time, Matthew Gosper sat near me and I had a brief conversation with Matthew. Moments later someone passed a stubbie of beer to Sergeant Lawrance. I can't remember exactly who is was, but I think it was Tommy the restaurant owner. Sergeant Lawrance opened the stubbie with a beer bottle opener that was allegedly attached to his genitals. From where I was sitting I could not actually see any of his private parts as he was approximately six or seven metres away at right angles to me. His clothing and the dim light blocked my view. From where I was it appeared as if he was opening a bottle of beer normally - except at groin level.

118 Ms Lowson submitted that all SC Barnier could see was a bottle being opened at groin level, but no more. There was no evidence of where he was sitting relative to the applicant and how many people were between him and the applicant. Further, it was contended that if SC Barnier could not see the applicant's penis, and he was sitting close enough to see a bottle being opened, how could any other inference be drawn that someone at the end of the table or outside the restaurant saw the applicant's impugned conduct. I accept this evidence does support a conclusion (as stated below) that only a specific number of persons actually witnessed the impugned conduct. It does not, however, sustain a proposition that there was not a risk of other persons observing the impugned conduct and being offended. This is because SC Barnier's evidence leaves open the question of where other attendees were situated and what their movements were at or about the time of the impugned conduct.

119 It is for this reason and those discussed below that I do not consider Mrs Stokes (or Mr Stokes) witnessed the second occurrence (or for that matter, the first), even though it would appear the Stokes remained at or about the restaurant at the time of the impugned conduct. As to the question of the Stokes departing the restaurant before the impugned conduct, Mr Murphy submitted that the applicant's evidence should not be accepted, in this respect, and other evidence should be preferred, such as SC Hardwick's account.

120 Ms Lowson made no submission as to whether Mr and Mrs Stokes were still present at the time the impugned conduct occurred.

121 In his ROI, the applicant stated he had never met Mr and Mrs Stokes and said they sat on the opposite corner of the L-shaped table throughout the evening. He had no communication with them. He stated: "I know they definitely weren't there when this happened, to the best of my knowledge".

122 The applicant approached the question of the attendance of the Stokes in cross-examination as follows:

Q. There were two civilians as part of the party - the Stokes?

A. Yes.

Q. And you were asked about them. At question 56, you were asked, "were they present?" You say, "I don't remember but I have never - I have never met that couple so far" - and over the page you say, "I know they definitely weren't there when this happened to the best of my knowledge" - do you see that?

A. Yes.

Q. When you say 'when this happened', what occasion of exposing your penis are you referring to?

A. It's not clear but I believe that they had left before any of this business occurred.

Q. You can't say definitely whether they had or they had not?

A. I believe that they had.

123 It was probable that the Stokes remained at the Christmas party at the time of the impugned conduct. Sergeant Ruehe stated he was speaking to Mrs Stokes outside the restaurant some time after 10.00 pm. As extracted above, SC Barnier remembers seeing Mr Stokes. It would appear that this occurred at a time reasonably proximate to the second occurrence. SC Hardwick has a similar recollection: "I do not believe there was anyone else in the restaurant when this occurred other than Jamie and Susie Stokes the Security Guards from Yamba". SC Hardwick's evidence may be accepted for this purpose, given the conformity with other evidence, but, as I will later find, SC Hardwick is unreliable in other respects.

124 However, I do not consider this finding represents a lack of reliability in the applicant's evidence. The applicant's statements, in this respect, were not emphatic. In my view, the applicant attempted to give truthful answers within the limits of his recollection. His evidence was consistent, as I will now find, with the Stokes being located at a place not proximate to where he was performing the impugned conduct (and, in fact, the Stokes not witnessing the conduct).

125 Senior Constable Barnier does not suggest that Mr Stokes witnessed the impugned conduct. In fact, he stated he had a "general discussion" with Mr Stokes. No mention was made that the conversation descended to a discussion about the impugned conduct. SC Barnier did not, as I have observed, witness the impugned conduct itself. Hence, it may be inferred that same limitation would have affected Mr Stokes, to the extent Mr Stokes remained nearby to SC Barnier.

126 Senior Constable Barnier said he spoke to SC Pope, SC Sippel and SC Gosper. There was no supporting evidence from the officers that the Stokes had witnessed the impugned conduct. Mrs Stokes made no statement. Nor did Mr Stokes. No other witnesses, including SC Hardwick, indicated that the Stokes were located in such proximity to the impugned conduct such that they may have observed the conduct. There was, in short, no evidence that the Stokes witnessed the impugned conduct.

127 It might be noted that, whilst SC Barnier was sober on the evening, there are some difficulties with his account. SC Barnier stated that the restaurant owner, Mr Chiu, was present and that he may have passed the stubbie of beer to the applicant. Whilst, Mr Chiu did not directly reject this statement (like the others giving their statements to Detective Chief Inspector Breton, he was not called to give a statement of evidence or evidence in the proceedings), he nonetheless made a statement inconsistent with that of SC Barnier. Mr Chiu asserted he did not witness any person expose themselves on the evening and at "no time did he see argument or anything wrong with their police table".

128 On the balance of probabilities, the following persons witnessed the second occurrence: SC Pope, SC Gosper, SC Hardwick, Mrs Pope and Mrs Lawrance. SC Barnier was present but did not witness the impugned conduct, per se. Mr and Mrs Stokes may have been present at or about the restaurant or its surrounds but did not observe the conduct. Nevertheless, this conclusion does illustrate that there remained at the party, at the time of the impugned conduct, persons other than police or their families. The applicant's lack of knowledge of their presence may well illustrate that they were out of his range of vision but it also demonstrates the risk that, despite his efforts at non-disclosure, persons other than his intended audience may have witnessed the impugned conduct. Given the nature of the conduct, exposure to it offered the real potential for offence. This conclusion follows, at least, from the fact that the applicant's capacity to eliminate or avoid a risk of exposure to the Stokes must be limited by his imperfect knowledge of their whereabouts.

129 On the applicant's account of the second occurrence, he removed his penis from his trousers with the bottle opener attached and opened SC Pope's beer bottle. However, he maintained in his ROI and under cross-examination that the penis was not simply exposed outright in the process, but was obscured by the manner in which he was holding it (although he did accept his penis may have been out of his trousers). The account he gave in his ROI was as follows:

I'd undone my fly and, and had you know, pulled, pulled the, the bottle opener, bottle opener out. It was still attached to my penis but my penis wasn't hanging from my pants. I'd actually had a hold of my penis so you'd be lucky, you'd be lucky if it was even out of my pants. But I had a hold of it because I was worried you know what I mean, that he might even pull the thing off or something you know, so I had a hold of my penis and he just simply grabbed the bottle opener and opened his beer.

130 This account was supported by SC Pope's account which was as follows:

In my opinion nobody had a better view than me and I could not clearly see his penis. I then lent over and used the attached bottle opener to open my bottle of Corona. In doing that I did not touch his penis. I thought this was funny and the four of us laughed.

131 Senior Constable Gosper's account, in this respect, was not inconsistent, as he does not identify seeing the applicant's penis on the second occurrence (even though he did on the first). There appears to be an inconsistency, in this respect, between these accounts and the account given by SC Hardwick. SC Hardwick's statement, in this respect, was:

Sometime later it arose that if "Popey had it done within 7 days Andrew would give Popey $1000". If he didn't Popey had to give him $1000". It was like a challenge. Popey got another Corona Beer and he didn't have a bottle opener so Andrew stood and unzipped his zipper.

He pulled his penis out. Steven Pope used the attached bottle opener to open his Corona. Everybody laughed at that.

132 The account by SC Hardwick does contain some ambiguity in that he does not give any detail as to how the applicant removed his penis from his trousers and as to what was observable. To the extent it was inconsistent with the applicant's account, I prefer the applicant's version. The applicant's account is, after all, direct evidence tested under cross-examination, which I had the advantage of observing. I have formed, as earlier noted, a positive view of the applicant's credit. Furthermore, the applicant's account was credible, given the obvious concern about the activity leading to pain or damage and, hence, the protective action of holding (and, thereby, potentially and substantially concealing) his penis. SC Pope, was the closest to the applicant, given his involvement in the opening of the bottle, and he corroborates the applicant's account. I also do not accept SC Hardwick's account (to the extent of any inconsistency) on the broader basis that I will find below there were inconsistencies between it and other police statements (and, ultimately, the applicant's evidence) which, by their nature, require some parts of his statement to be treated with caution as to its reliability.

133 There was no issue, again based on the evidence, that the applicant had his back to the restaurant and was facing the plastic sheeting when he exposed himself in this manner on the second occasion.

134 On the balance of probabilities, I find the applicant was standing when he engaged in the second occurrence of impugned conduct. In his ROI and cross-examination, the applicant claimed he had no recollection of whether he stood up to allow SC Pope to open the Corona or if he remained seated. SC Pope, in his statement, said he "lent over" while SC Hardwick and SC Gosper stated he was standing.

Third Occurrence

135 There is some ambivalence in the position of the parties as to whether or not there was a third occurrence. Ms Lowson submitted that the statements made by police officers supported a finding that there were two occurrences of impugned conduct but conceded it was impossible to exclude a third occurrence. However, she submitted that, if there was a third occurrence, it was not clear just what constituted it.

136 Mr Murphy did not submit that there was a third occurrence. Nor did he directly put such a proposition to the applicant in cross-examination (it should be noted that the Commissioner in his reasons, stated, "There is also evidence to suggest you offered to do so a third time)".

137 However, Mr Murphy did seek to establish that there were other people present who could have seen the applicant engage in the impugned conduct and, in that respect, directed the applicant's attention to the statement of SC Hardwick, which contained the only account of the impugned conduct in which there was a third act or element.

138 Ultimately, the issue may not be of great significance. As I will discuss shortly, the fact that the applicant may have embarked upon similar behaviour on one further occasion at or about the same time and place as the other occurrences would not seem to add much to the resolution of the issues raised in this matter. However, the matter demands attention by reason that the statement of SC Hardwick attributes to SC Pipes, a statement which is both contentious and is disputed.

139 After referring to events containing a close resemblance to the first and second occurrence SC Harwick's states:

A short time later Rebecca Pipes, Peter Barnier and Amber Barnier came back to the table. Someone said, "Show them your party trick." Andrew Lawrance stood up and unzipped his zipper and pulled his penis out. No beer was opened on this occasion.

Rebecca Pipes walked away saying she was disgusted.

140 The applicant was cross-examined upon this statement as follows:

Q. I will read this to you, if I may, Mr Lawrance. Paragraph 17 of Mr Hardwick's statement says:

“A short time later Rebecca Pipes, Peter Barnier and Amber Barnier came back to the table and someone said, 'Show me your party trick' and Andrew Lawrance stood up, undid his zipper, pulled out his penis" -

I am sorry - "pulled his penis out at that stage" - do you accept that it's now - accept as of today that it's possible Amber Barnier saw you do what you did or was present when you did what you did?

A. I don't recall her being there and I have only got the statements to go upon as far as who saw, what sir, I don't recall her being there, no.

141 The applicant was not asked by Detective Chief Inspector Breton specifically about a third occurrence and did not deal with the question in his statement of evidence.

142 The resolution of the question is not without some difficulty. In circumstances where the applicant's evidence, in this respect, either does not deal with the issue or is affected by a lack of recollection (in the case of Mrs Barnier), the Commission is essentially confined to resolving the question based upon statements made by police officers, none of whom, as I previously observed, was called to give evidence.

143 Upon this basis for analysis, and notwithstanding the somewhat equivocal views expressed by the applicant, there must some doubt about whether the applicant engaged in the impugned conduct on a third occasion on the evening of 11 December 2008. This is because SC Hardwick's account, whilst clear enough on its face, is sufficiently inconsistent with two other statements as to raise doubts about the reliability of that aspect of his statement. I will deal with those inconsistencies before turning to the resolution of this issue.

144 Senior Constable Barnier's statement is inconsistent with SC Hardwick's account of a third occurrence. It is reasonable to infer from SC Hardwick's account that SC Barnier received a demonstration of the 'party trick', that is the third repetition of the impugned conduct. However, in SC Barnier's only account of the impugned conduct, he not only says he did not witness the display, but that he was a such a distance from it that it was not possible to detect the content of the applicant's activities at the party, in that respect.

145 Further, SC Hardwick's account was wholly inconsistent with the account given by SC Pipes. Her account effectively represents a denial of what SC Hardwick attributes to her, namely that she witnessed the impugned conduct and walked away "disgusted". She flatly denied that she saw the impugned conduct. She stated: "I did not see anything as to what might have had the group laughing", an indirect but undeniable reference to the impugned conduct. She was involved in a conversation about piercings but when the 'party trick' was mentioned she "went outside". She says nothing in her statement about going outside because she is "disgusted". Nor does her statement record her making any observation about disgust or offence upon her return to the party. Instead, she records no negative reaction at all. It may be that SC Pipes can be described as another person who actively avoided the conduct (as I will later discuss), or that she felt it was inappropriate but, on any measure, her account does not accord with SC Hardwick's account which involved her walking away from a demonstration of the impugned conduct with a high level of annoyance, discord or even infuriation, when regard is had to the usual meaning of the word 'disgusted'.

146 As to the factual dispute over whether or not SC Pipes uttered the words attributed to her by SC Hardwick, I consider the issue must be resolved in favour of SC Pipes' account, or put slightly differently, of this aspect of SC Hardwick's statement must be rejected. This conclusion is reached for the following reasons:

(i) As I have noted, the inconsistencies between SC Hardwick and both SC Barnier and SC Pipes, raise doubt about the reliability of his statement in this respect;
(ii) The third occurrence is not mentioned in any other statement by a police officer, even those located in close proximity to the applicant during the second occurrence (which SC Hardwick said occurred close in time to the second occurrence); and
(iii) Senior Constable Pipes' own account of her actions and statements should be preferred to SC Hardwick's recollection of words spoken by her, particularly, where his recollection involved something said as she is "walking off" (making it potentially less reliable but, of course, not in any way tested in this respect).

147 There remains the question of whether there may have been a third occurrence of the impugned conduct at all. I propose to deal with this matter essentially as proposed by Ms Lowson, that is, I will determine the ultimate issues in the proceedings upon the basis that it is possible the impugned conduct occurred on a third occasion, even though real questions remain as to who may have witnessed to the conduct. I will also adapt to this analysis Mr Murphy's principal focus, namely, whether Mrs Barnier may have witnessed the impugned conduct.

148 It does not appear to me, when assessed in this way, that this fact alone materially adds to the final assessment of this matter, except in one respect which is unrelated to the fact of the occurrence itself. As described by SC Hardwick, the third occurrence is very similar to the first, save for the different witnesses. No statement was taken from Mrs Barnier about the occurrence and any reaction she may have had to it. Thus, when stripped of that aspect concerning SC Pipes, the third occurrence essentially consisted of a repetition of the first occurrence shortly after the second occurrence, with the prospect of an additional non-police attendee of the party witnessing the conduct.

149 Of greater significance is that, even though the applicant had doubts about Mrs Barnier witnessing the conduct, he could not rule out that prospect in cross-examination. This raises similar issues to those arising in relation to the presence of the Stokes. In my view, there was always present, during the evening in question, a risk that other members of the party, outside the applicant's immediate group or those seated close to him (in "closed company" as he described it) may have observed the conduct, given the obvious limits to the applicant's capacity to control who may witness the conduct. The capacity to prevent exposure was governed by the limits of his own knowledge of their whereabouts before or during the conduct, and therefore, his capacity to adjust his behaviour to avoid exposure. This risk is exaggerated because the attendees at the party were clearly moving about and holding discussions both inside and outside the restaurant during the evening. Thus, even though the evidence only permits a conclusion that the actual exposure to the conduct was limited to certain members of the party, this conclusion does not remove from consideration the risk of exposure beyond the intended audience of party goers which exposure may, given the nature of the conduct, have caused offence. In this sense only (in relation to risk), I consider that SC Gosper and SC Hardwick's speculation to be apposite in relation to risk: "I cannot tell you who else saw this happen although it is reasonable that others may have". To this may be added, as I will also discuss, the adverse reactions from some of those who chose to avoid the conduct. This consideration does not, however, extend to patrons other than the party attendees, as those persons had left the restaurant before the impugned conduct.

Were Members of the Public Present on 11 December 2008?

150 The Christmas party was a work-related function held at premises where members of the public were present. The factual issues were whether any members of the public were still present when the applicant engaged in the impugned conduct and whether anyone from the public saw the impugned conduct.

151 The applicant stated, in his ROI, that the restaurant was "reasonably packed". The 16 officers who provided statements all gave an estimation as to how many people were inside the restaurant on the evening. The estimates ranged from 20 to 30 (SC Hardwick), 10 to 20 (SC Barnier), 10 to 15 (SC Morgan), 50 to 100 (Sergeant Ruehe), 30 (SC Hill), 60 (SC Hembrow), 20 (SC Wills) and 5 to 10 (SC Sippel). The Commissioner, in his Statement of Reasons, only referred to Sergeant Ruehe's and SC Hardwick's estimations. It should be noted that Sergeant Ruehe, in his statement, said he attached a sketch of the general layout of the evening, but no such layout was attached to his statement.

152 Senior Constable Pipes and SC Clark said the restaurant was busy and "fairly full" but gave no estimate. On the other hand, SC Roberts, SC Sippel and SC Hinton said it was not busy "compared to other times". SC Goodwin agreed it was not busy, stating "Tommy (the owner) spent a fair bit of time with us and that is not the case when the restaurant gets busier". Sergeant Levey, SC Pope and SC Gosper gave no evidence as to how many patrons were there on the evening.

153 Mr Chiu's statement was the only civilian statement taken and provided no evidence as to the capacity of the restaurant, receipts for the evening and whether the restaurant was, in fact, closed when the impugned conduct occurred. SC Wills stated that Mr Chiu was urging the police table to leave because he wanted to close the restaurant. Mr Chiu stated that the police table arrived at 7.30 pm and left at 9.30 pm. This was inconsistent with the fact the impugned conduct occurred sometime after 10.00 pm.

154 Ms Lowson submitted that there was no contradictory evidence led by the respondent to sustain a proposition that members of the public remained at the time of the impugned conduct. Evidence would have been available as to how many people were dining in the restaurant on the night, obtaining take-away meals and the capacity of the restaurant. None of this evidence was obtained. She also submitted that there was no evidence of the physical layout of the restaurant, how many staff were on duty on the night, where they were located, whether they worked predominantly in the kitchen or if Mr Chiu did the serving.

155 There was a slight issue as to whether there were any other tables (other than the police table) on the verandah of the restaurant.

156 The applicant, in his ROI, stated that there was only one table on the verandah of the restaurant on the night. He maintained that view under cross-examination.

157 The applicant's evidence as to whether there was another table on the verandah was consistent with Sergeant Ruehe, Sergeant Levey, SC Hardwick, SC Pope, SC Barnier, SC Morgan, SC Wills, SC Hill, and SC Hembrow, who all stated they were the only table outside on the verandah during the evening.

158 In contrast, SC Gosper stated there was "a table of four behind us on the deck, in between us and the restaurant". SC Pipes, in her statement, claimed "we were the only group on the balcony with the exception of one small table of possibly four persons".

159 Senior Constable Clark, SC Roberts, SC Hinton and SC Goodwin gave no evidence to this effect.

160 This evidence demonstrates again the variations in the recollections and accounts given by the various police officers who gave statements. On the balance of probabilities, I find that the restaurant was well patronised on the night and that, taking into account the applicant's evidence (and my finding as to him being a witness of credit) as well as statements corroborating his account, the police Christmas party table was the only one situated on the verandah.

Were there Patrons of the Restaurant Not Part of the Christmas Party Present at the Time of the Impugned Conduct?

161 Mr Murphy submitted that it would be difficult to come to the conclusion that, at the time of the impugned conduct, there were no other members of the public present in the restaurant. It was contended that it was quite possible that other patrons were present at the time of the impugned conduct. Ms Lowson submitted that the likelihood of any person, other than police officers and some members of the party, witnessing the impugned conduct (which lasted only a matter of seconds, and, at most, on three occasions) was small.

162 In his ROI, the applicant stated that he did remember that "some people had left and I also remember that there was nobody else in the restaurant as far as other members of the public so it was quite late at night".

163 In cross-examination, Mr Murphy asked the applicant how did he know that there was nobody else apart from the police party in the restaurant when he engaged in the impugned conduct. The applicant stated that it was late at night and he had to "make his way through the restaurant" to get to the toilet and "there was nobody in the restaurant besides our party which remained at the front". Mr Murphy further suggested to the applicant that he had no recollection that the restaurant was empty (apart from the police party). As noted above, the applicant rejected that proposition

164 It was further suggested by Mr Murphy that the reason why the applicant had his back to the restaurant when he engaged in the impugned conduct was to ensure that members of the public did not witness his conduct. The applicant, again dismissed the proposition, stating "there were no other members of the public in the restaurant. I had my back to the restaurant to face the people who were in front of me".

165 Given my earlier observations about the applicant's credit as a witness, and the absence of any directly contradictory evidence, I accept the applicant's account in this respect.

166 There was no statement made by any officer interviewed by Chief Inspector Breton that members of the public were still present in the restaurant at the time of the impugned conduct.

167 Senior Constable Pope, who was a close observer of the events, said that, even though the applicant turned his back to "everyone else who may have been in the restaurant (at the time of the final occurrence)" he was "sure that there was no one else there because "Tommy was hurrying us up as he wanted to finish up". He stated he could not tell "who else saw this happen" but he did not "believe there was anyone else in this restaurant when this occurred". SC Hardwick and SC Gosper also stated that, to the best of their knowledge, they did not believe "there was anyone else in the restaurant" when the impugned conduct occurred.

168 It follows that I reject Mr Murphy's submission in this respect. On the balance of probabilities, patrons of the restaurant, other than those attending the party, were not present at any time during the impugned conduct. Indeed, there was no evidence to the contrary. Whilst I accept the evidence that the applicant had his back to the restaurant (when he engaged in the conduct) may have, in the absence of countervailing evidence, enabled an inference to be drawn that members of the public were present at the time of the impugned conduct, I do not think it is appropriate or reasonable to do so in the face of the contrary evidence of the applicant, and other officers corroborating his version of events. This is particularly so, when regard is had to the applicant's plausible explanation as to why he positioned himself in the manner he did, and, where he gave evidence (which I accept) that he observed the other patrons had left the restaurant before he engaged in the first occurrence of impugned conduct. To this may be added SC Pope and SC Gosper's accounts, both of whom noticed the applicant looking behind him, but nonetheless maintained that there were no patrons remaining in the restaurant. If this analysis was conducted on the basis of risk, as suggested by Ms Lowson, I would also accept that there was no real or appreciable risk that a person, other than a member of the party or staff, observed the impugned conduct (this conclusion also derives from parts of my analysis of the evening which follow).

Were Members of Staff or the Proprietor Present During the Occurrences and did they Witness it?

169 In his ROI, the applicant gave no evidence as to whether staff were present during the impugned conduct. However, during cross-examination by Mr Murphy, the applicant accepted that staff were still in the restaurant when the impugned conduct occurred. That evidence was as follows:

Q. I want to suggest to you that there was still staff present in the restaurant?

A. There was still staff yes in.

Q. And they are members of the public aren't they?

A. Certainly not in the context of how I referred to members of the public in my interview.

Q. And I want to suggest to you - again - I want to say you're unable to say with any certainty whether or not other people in or about the restaurant may have seen you expose your penis. Before you answer that, I am including the potential for staff as well and other patrons and people in the vicinity?

A. No, I don't agree with that, sir, no.

170 Sergeant Ruehe was the only officer to make reference as to whether the staff were present in his statement. He stated that when "this party trick occurred there was (sic) no other parties in the restaurant other than the staff attached to the restaurant".

171 Ms Lowson submitted that there was nothing in Chief Inspector Breton's investigation to suggest that any inquiries were made about whether staff remained, or if they or Mr Chiu were still attending patrons. Counsel accepted that the police officers making statements identified there was staff remaining, but it was unclear whether those references involved anyone other than the proprietor. It was contended that there was no evidence as to whether there was one other or more staff members present or if those staff attended to the party at any time after the bill had been paid.

172 Mr Murphy submitted that it was clear the owner was in the restaurant at the time the impugned conduct occurred and that he was a member of the public. It was also highly likely, it was submitted, that there were members of staff still present at the time of the impugned conduct.

173 I conclude that some members of the staff and the proprietor remained at the restaurant at the time of the impugned conduct. As earlier noted, the proprietor did not witness the conduct. There was no evidence that a member of the restaurant's staff witnessed the conduct.

The Impugned Conduct : Offensive Behaviour?

Persons who Witnessed the Conduct

174 Senior Constable Pope, SC Hardwick, SC Gosper and SC Sippel stated that they were not offended by the applicant's behaviour at the restaurant.

175 Senior Constable Pope and SC Gosper both stated the impugned conduct was not a display to everyone "but rather was a private thing between two blokes that had been drinking". They also state it was done in "a closed environment at a private function and after a few drinks". They both had "no complaint about this party trick". SC Pope, who opened his Corona with the bottle opener attached to the applicant's penis also stated "there was no issue with me".

176 Senior Constable Sippel claimed he was not "personally offended" by the impugned conduct. SC Hardwick said he had "no complaint about this party trick". He was also "not offended in any way" but thought it was "pretty stupid".

177 Mrs Lawrance saw the impugned conduct but did not give a statement to Chief Inspector Breton. As mentioned earlier in the decision, she did provide a statement in support of the applicant where she stated:

Andy did not set out to hurt or offend anyone with his party trick. In fact, I have seen the party trick before with the reaction at the Christmas party consistent with the reaction of persons at any other time. They found it amusing, shocking, funny and nothing more than what it was intended - a joke. I find it hard to believe that some off duty police at a Christmas Party would be offended by trick as per the 181D notice.

178 Mrs Pope also saw the impugned conduct but did not make a statement. It should be noted that SC Pope stated in his statement that he had discussed the impugned conduct with his wife but gave no other evidence as to what she thought about the impugned conduct.

179 The applicant, in cross-examination, revealed that Mrs Pope was the only female who was "actually asking to see it". The applicant did not accept that his conduct disclosed a complete lack of respect for the women who were present at the party.

180 In his ROI, the applicant stated that, as to those witnessing the conduct, "they all laughed" and thought it was "hilarious". He also said they were "entertained" by the impugned conduct. This was borne out in the statements of many of the police officers who witnessed the conduct.

181 Sergeant Ruehe, SC Pipes, SC Clark, SC Barnier and SC Morgan, despite not witnessing the impugned conduct, stated that people were "laughing", "yelling" and joking" about what was occurring inside at the table.

182 The applicant stated in his ROI that if he thought "anyone for instance was going to be offended or it was inappropriate to those around me I certainly wouldn't have done it". He stated he felt "comfortable" with whom he was socialising and he would not have shown "a mob of strangers" his 'party trick'.

183 In cross-examination, the applicant was asked whether it was possible somebody who witnessed the impugned conduct may have been offended. The applicant said if he believed that somebody may have found his conduct offensive he would not have engaged in the impugned conduct. The applicant was also asked if he had inquired of those present to determine if they might find the 'party trick' offensive before he engaged in the impugned conduct. The applicant admitted he did not ask anybody whether they would be offended. However, he dismissed the proposition that his conduct was offensive in the context in which it occurred and maintained it was not his intention to offend anyone.

184 Mr Murphy submitted that the applicant's conduct had the potential to cause serious offence to those who were in a position to witness it and that the conduct was offensive and divisive.

185 Ms Lowson submitted that the applicant's evidence was consistent with the other officers who saw the impugned conduct and that everyone was "laughing" and found it hilarious. The applicant was conscious of only performing his trick for the people in his "immediate vicinity" and that he would not have engaged in the impugned conduct if he thought that it was going to be offensive to people.

186 The following people definitely witnessed one or other occurrence of the impugned conduct: SC Pope, SC Gosper, SC Hardwick, SC Sippel, Mrs Lawrance and Mrs Pope. They did not take offence to the applicant's conduct and treated the behaviour as a form of entertainment - laughing and joking about the applicant's 'party trick'. Some of them encouraged the conduct.

Offence taken by Persons not Witnessing the Impugned Conduct

187 The two Sergeants and the remaining 10 junior officers did not see the impugned conduct.

188 Sergeant Levy, SC Barnier, SC Hill, SC Roberts, SC Hembrow and SC Hinton gave no evidence as to whether they would have found it offensive if they had seen the impugned conduct.

189 Senior Constable Goodwin and SC Wills were both told about the applicant's behaviour later at the Pacific Hotel and indicated they were not interested. They made no further statement about the matter as to whether they found it offensive or not.

190 The applicant was cross-examined on the issue that the impugned conduct had a divisive effect on the party group:

Q. Do you accept that your conduct had a divisive effect on the group that were attending this function?

A. Divisive effect in what regard?

Q. In that there were a number of them who didn't want to see your exposed penis and went outside or stayed outside as a result of that desire not to see you expose your penis in front of them?

A. I acknowledge that the evidence is that some people chose to stay outside because they were not interested and I acknowledge that.

Q. That was not just women, it included men as well?

A. Yes.

191 There was a group of officers, Sergeant Ruehe, SC Pipes, SC Morgan and SC Clark, who were outside when the impugned conduct was occurring on the verandah of the restaurant. There was an issue as to whether these officers remained outside because they found the impugned conduct offensive. I have set out each of the officers' statements in relation to this issue below.

192 Senior Constable Pipes went outside the restaurant when "someone" mentioned 'party trick'. She claimed that when she returned inside "people were generally laughing and joking about something that had occurred inside at the table". As earlier discussed, I do not accept that SC Pipes made the statement attributed to her by SC Hardwick that she was "disgusted". Nevertheless, I consider that SC Pipes made a conscious decision to avoid exposure to the impugned conduct and thereby situated herself outside.

193 Sergeant Ruehe gave the following statement:

Someone I cannot remember told me something. I decided to stay outside because I wasn't interested in what I was told. I didn't want to return inside as it was the end of the night.

People were generally laughing and joking about something that had occurred inside at the table, a "party trick".

194 Mr Murphy submitted that the statement of Sergeant Ruehe should be read that he chose not to go back inside because he found the conduct occurring inside was, at least, inappropriate.

195 Ms Lowson, on the other hand, submitted that Sergeant Ruehe made no suggestion that the people he was discussing the applicant's behaviour with thought it was inappropriate.

196 It is true that Sergeant Ruehe did not describe the behaviour as 'inappropriate'. It is clear, however, that he was appraised of the conduct and decided to "stay outside". This would indicate a conscious act of avoidance and, it may be reasonably inferred, that he did not wish to associate himself with the conduct. This conclusion carries with it that the Sergeant made some assessment of the appropriateness of the conduct (whether at a personal or professional level). It is not possible, however, to say with sufficient confidence whether Sergeant Ruehe was one of the persons situated outside the restaurant whom SC Clark described as finding the applicant's conduct inappropriate (which I will discuss below), even though he plainly disassociated himself from it.

197 Senior Constable Clark's statement was the most comprehensive as to what occurred outside the restaurant. SC Clark stated that he did not want to see the impugned conduct. He stated that there was a discussion, as I have noted, about the inappropriateness of what was occurring in the restaurant:

Someone has obviously told me but I cannot remember who, perhaps one of the girls that a party trick was happening. I can't recall exactly how it was said to me but I understood it to be something like "(Andy's got his dick out)".

I stayed outside and had no interest in seeing what he was doing. There was general discussion about the inappropriateness of what had occurred but I cannot recall what was said or who said it. I recall something like "(His dick was pierced and he has a bottle opener on it)".

People were generally laughing and joking about something that had occurred inside at the table. Outside was a different mood.

198 Senior Constable Clark said he was outside with Sergeant Ruehe, SC Pipes, SC Morgan, SC Goodwin, SC Wills, Susie Stokes and Sergeant Ruehe's partner, Kim. He said they "came and went periodically".

199 Sergeant Ruehe said he was outside with SC Clark, SC Pipes, Susie Stokes and his partner, Kim.

200 Ms Lowson accepted that SC Clark made an active decision not to participate in what was occurring on the verandah. However, it was submitted that SC Clark was the only officer who stated that people outside the restaurant discussed the inappropriate nature of the conduct. Ms Lowson also contended there may be a number of other reasons why those officers chose not to see the impugned conduct. They may all have piercings themselves. It could be hypothesized for days the reasons why those officers chose not to be there, but a conclusion cannot be drawn that they would be offended if they saw it. These officers were interviewed in a police investigation. They sat down with Chief Inspector Breton. They had every opportunity to put to Inspector Breton any concerns they had about the conduct.

201 Mr Murphy submitted that the contention that SC Clark was indifferent to seeing what was happening inside because he may have had his own piercing (and, therefore, had no interest in seeing the applicant's) did not reflect what SC Clark said in his statement. SC Clark, he submitted, regarded what was happening inside as offensive, or at least inappropriate.

202 To accept the applicant's submissions on this point would be to effectively reject SC Clark's statement that some persons gathering outside the restaurant, in knowledge of the applicant's conduct, found the conduct inappropriate and were not happy about it. I do not consider there is a proper basis to do so. The evidence could certainly not be rejected on the fanciful suggestion that there may be simple disinterest based on the preponderance of the piercing amongst the males attending outside. Nor can the submission be accepted based upon the absence of specific statements of offence expressed by other police officers situated outside the restaurant. Whilst SC Clark does not identify who expressed the views in question, he does indicate Sergeant Ruehe and SC Morgan were outside. I have and will find, that those persons held adverse opinions about the conduct.

203 Senior Constable Morgan also gave her account as to the applicant's impugned conduct. SC Morgan was seated next to SC Gosper and moved and sat next to Sergeant Levey and SC Hill when she heard all the "laughing" and she saw the applicant stand up to show the group his 'party trick'. SC Morgan stated "I didn't want to see anything". After sitting and talking with Sergeant Levey and SC Hill, SC Morgan went outside and spoke to, as I have noted, Sergeant Ruehe, SC Pipes and others (who were not named in her statement). She claimed:

We have spoken briefly about what was happening over at Sergeant Lawrance's table. I have discussed with the rest of the group that I didn't want to see what was happening.

If I had of seen Sergeant Lawrance's penis in this situation I would have found it offensive but I chose not to see what Sergeant Lawrance was doing so I didnt see anything that I found offensive.

(It will be noted that SC Morgan refers to having a discussion with the rest of "the group".)

204 It was submitted for the applicant that it maybe accepted that SC Morgan realised what was going to happen and chose not to see it and had she seen it she would have been offended. This, however, supported, it was contended, the view that the impugned conduct was done in a discrete way. The people who did not want to view the impugned conduct did not have to see it. It was further contended that, if SC Morgan had meant to say she was offended by the fact of what occurred, then she could have indicated that in her statement. There was no suggestion or any limit on the opportunity the police officers had to put to the investigating officer exactly what they thought.

205 Mr Murphy submitted that the applicant attempted to diminish the importance of SC Morgan's evidence, suggesting she was not offended, and that there was "no harm done". This was, it was contended, not a correct characterisation of her evidence. SC Morgan was about to be confronted by the conduct and she was "sufficiently offended" by that prospect to have left the scene. He submitted it was simply wrong to suggest there was no offence taken.

206 Senior Constable Morgan was quite particular in her indication that she did not "see anything that I found offensive" because she had removed herself from exposure to it. It does not follow, however, that she did not find the conduct offensive, per se. Rather, I agree with Mr Murphy that a reasonable inference which could be drawn from SC Morgan's evidence is that she opted not to see the conduct because she found it, by its nature, offensive and, therefore, avoided it.

207 Ms Lowson accepted that some officers chose not to see the impugned conduct. However, she submitted, overall, on the question of "offensive behaviour", there was no evidence, other than SC Morgan's, as to why some of the officers chose not to see the conduct. It is unknown whether it was because they had already seen a 'Prince Albert' piercing and would not have been entertained by it. The conduct was not 'thrusted' in the face of people against their will but, rather, occurred in a way where people could elect to opt out if they wished to avoid being subjected to the exposure. The course of events was consistent with the applicant's evidence that he would not have engaged in the behaviour if he thought it may have caused offence. There was a minimal amount of evidence to suggest that, at the time, anyone considered the conduct to be inappropriate. It seems largely to have been accepted as part of the festivities of the evening.

208 The Commissioner contended that it was quite wrong to suggest that SC Morgan was the only officer prepared to say she was either offended or would have been offended had she seen it. There was sufficient material to conclude that there were a number of officers who were offended by the conduct and the consequence of that is that this conduct had an entirely divisive impact upon the group.

209 In my view, the statements of Sergeant Ruehe, SC Clark and SC Morgan, when taken together, warrant the conclusion that those officers did not find humour in the applicant's behaviour (as other officers in the restaurant did) and disassociated themselves from the conduct. The common element in each was the decision to avoid the impugned conduct for various reasons which, as I have discussed, were based on factors ranging from conscientious avoidance through to offence. I do not accept Ms Lowson's submission which was to the effect that some persons attending the party had simply made a decision not to partake in something resembling entertainment, about which tastes may differ, or had chosen to ignore behaviour which they may have found inappropriate. This submission significantly downplayed the true nature and impact of the conduct which, as Mr Murphy contended, forced some members of the party to remove themselves, not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable.

Summary of Findings as to the Evening of 11 December 2008 and Impugned Conduct

210 In summary, my findings as to the evening of 11 December 2008 and impugned conduct are as follows:

1. On Thursday 11 December 2008, the applicant attended a work-related Christmas party involving police from the LAC, their partners and friends. The party was situated at a restaurant known as 'Tommy's Chinese Restaurant'. Whilst the precise layout of the restaurant is not known, the party occurred on a verandah which was separate but adjoined to the remainder of the restaurant. There was a layer of plastic sheeting dividing the verandah from the area outside the restaurant. The plastic sheeting was translucent, not transparent, and no members of the public walking outside could have observed activities within the verandah of the restaurant with sufficient clarity to witness the impugned conduct.

2. The persons attending the party were seated on an L-shaped table which was the only table situated, that evening, on the restaurant's verandah. The table would have been a substantial size as it held 24 attendees. A meal was served at the party. During this time there was a substantial number of patrons, in addition to the party attendees, at the restaurant. Sometime after 10.00 pm, at the completion of the meal, the guests mingled and did so for the remainder of the evening. However, the applicant remained seated with his wife and two friends, SC Pope and Mrs Pope, at the top end of the L-shaped table. The applicant initiated a discussion regarding "tattoos and body piercings". During the course of that discussion the applicant explained he had his penis pierced. He further revealed he had a 'party trick'. At or about the time of that discussion, the following police officers were situated in close proximity: SC Hardwick, SC Sippel, SC Pipes and SC Gosper. They were privy to the discussion.

3. At some stage during or at the close of the discussion, the applicant went to the toilet to prepare for his 'party trick'. On this occasion, the trick involved inserting a ring attached to a bottle opener through his penis piercing (known, when a ring is attached, as a 'Prince Albert' piercing). This preparation took five to ten minutes. It was during his movement to or from the toilet that he noticed all other patrons, other than the party attendees, had left the restaurant.

4. Upon returning from the toilet, he took up his original position at the table next to his wife and opposite SC Pope and Mrs Pope. Those persons, along with SC Gosper, SC Hardwick and SC Sippel, witnessed what the applicant then proceeded to do. He stood, unzipped his trousers and exposed his penis with the ring and the bottle opener attached. At the time the applicant was facing the plastic sheeting with his back to the inside area of the restaurant. This was the first occurrence of the impugned conduct, which lasted a matter of seconds.

5. Sometime later in the evening, the applicant was involved in the second occurrence of impugned conduct. After the first occurrence the conversation had continued about piercings with the same nucleus of people who witnessed the first occurrence. Again, the applicant, with his back to the restaurant, stood and removed his penis from his trousers. However, on this occasion, he allowed SC Pope to open his Corona with the bottle opener still attached. The extent to which the applicant's penis protruded out of his trousers during this occurrence was unclear, but the applicant was holding his penis, thereby, to some extent, obscuring visibility of it (although the nature of the act being engaged in would have been plain enough to a nearby observer). The following persons witnessed the second occurrence: SC Pope, SC Gosper, SC Hardwick, Mrs Lawrance and Mrs Pope. SC Barnier was also somewhere in the vicinity but could not, from his vantage point, see the impugned conduct (rather, he only saw a bottle being opened at groin height). It would appear Mr and Mrs Stokes remained at or about the restaurant but not sufficiently proximate to where the applicant was performing the impugned conduct to observe it. (There was no evidence that they witnessed the conduct.)

6. There is some doubt about whether the applicant engaged in the impugned conduct on a third occasion. SC Hardwick was the only officer to give a description of a third occasion and his evidence is affected by inconsistencies. No other witness verified his account. No submission was advanced by the Commissioner that there was actually a third occurrence of impugned conduct, although the applicant, by his counsel, conceded that possibility. I have proceeded on the basis that there may have been a third occasion in which the applicant engaged in the impugned conduct on the evening in question but there is some uncertainty as to who witnessed the third occurrence (the applicant doubted Ms Barnier saw the impugned conduct), and, in particular, I have rejected SC Hardwick's account that SC Pipes witnessed the impugned conduct during the third occurrence (and then walked away disgusted). I have observed that the third occurrence could not, in any event, significantly impact upon the ultimate consideration of this application. The third occurrence was, as described, effectively a repetition of the first occurrence. It was, on SC Hardwick's account, only a short time after the second occurrence. On SC Hardwick's account, it may have been inferred that Mrs Barnier saw the impugned conduct but there is no evidence from her as to whether she saw it and, if so, what may have been her reaction.

7. As to the exposure of the conduct to the public, I have found there were no other members of the public in the restaurant at the time of the impugned conduct other than attendees of the party. The applicant knew that to be so at the time he engaged in the impugned conduct. However, the owner and staff of the restaurant were still present when the impugned conduct took place. The owner did not witness the conduct. There is no evidence as to whether any staff witnessed it. This does not mean that there was not a real risk that other persons attending the party may have witnessed the conduct and, by the very nature of the conduct, found it offensive. The applicant did not have sufficient knowledge of the whereabouts of other attendees or control over their movements (or their access to him) to fully remove or avoid that risk. However, I do not consider there was a risk of patrons of the restaurant, not attending the party that evening, witnessing the impugned conduct, as they had departed by the time the behaviour commenced.

8. SC Pope, SC Hardwick, SC Gosper, SC Sippel, Mrs Lawrance and Mrs Pope all witnessed the applicant's 'party trick', found it humorous and, in some respects, encouraged the applicant. Plainly, they did not find the applicant's behaviour offensive. The statements of Sergeant Ruehe, SC Clark and SC Morgan, when taken together, warrant the conclusion that those officers, who were situated outside the restaurant, did not find humour in the applicant's behaviour (as other officers inside the restaurant did) and disassociated themselves from the conduct. The common element in each was the decision to avoid the impugned conduct for various reasons which, as I have discussed, were based on factors ranging from conscientious avoidance through to offence. I do not accept Ms Lowson's submission, which was to the effect that some persons attending the party had simply made a decision not to partake in something resembling entertainment, about which tastes may differ, or had chosen to ignore the behaviour which they may have found inappropriate. This submission significantly downplayed the true nature and impact of the conduct which, as Mr Murphy contended, forced some members of the party to remove themselves, not by a simple, uneventful choice, but by necessity to avoid the conduct, which was to them, in various degrees, repugnant or unacceptable.

PRIOR COMPLAINTS, WARNINGS AND INCIDENTS

1997/1998 Incidents

211 In December 1997, the applicant was the subject of a complaint regarding his behaviour, whilst off duty at the Revesby Workers' Club. The allegation, as recorded, was that the applicant (and another off duty officer) tried to "coerce club staff with threatening comments made in their official capacity as police officers". Alcohol was said to be a contributing factor. The evidence in the proceedings was that the complaint was "successfully conciliated" (although the meaning of that expression was not explained). It was clear, however, that no disciplinary action was taken.

212 In December 1998, it was alleged that the applicant engaged in "the use of incorrect procedures". The allegation was that the applicant, whilst attending a particular incident, was "given a plastic [bag] containing what appeared to be cannabis". Upon completion of inquires, it was alleged that the applicant disposed of the substance by flushing it down the toilet, in breach of correct procedure. Again, the complaint was said to be successfully conciliated. No disciplinary action was taken.

Counselling in 2002

213 The applicant was also the subject of an investigation following his appearance before the PIC in 2000. Adverse findings were made against the applicant as follows:

(i) On 26 August 1999, the applicant was uncooperative and intimidating to officers from Healthy Lifestyles during the conduct of random alcohol tests;
(ii) On 17 December 1999, the applicant failed to properly secure his firearm by keeping it in his personal locker at Bankstown Police Station; and
(iii) On or about 15 June 2000, the applicant breached a non-publication order made by the PIC in relation to an assault allegation, by discussing the subject matter of the inquiry with other police officers at Bankstown Police Station.

214 In April 2002, the applicant was served with a Region Commander's Warning Notice, pursuant to s 173(1) of the Police Act, in connection with the above findings (which had been sustained by the Police Force).

215 The applicant was also required to undertake retraining, counselling and assessment by Healthy Lifestyles under a structured management plan.

216 The structured management plan was put in place for a period of eight months. Inspector Belinda Neil (the nominated officer assigned as the mentor to the applicant) provided four monthly reports in 2002 to the Bankstown LAC as to the applicant's progress. At the conclusion of the management plan, the outcomes were reviewed by Ms Neil. She found no issues of concern remaining as to the applicant and was satisfied the objectives of the management plan were achieved. She recommended that no further management action was necessary with respect to the applicant.

217 In the applicant's response to the Notice given by the Commissioner, the applicant gave his account for the first time in relation to the Region Commander's Warning Notice and the 1999 and 2000 allegations as follows:

i) I asked the Healthy Lifestyle Officer to read him "form of demand" before I undertook a breath test whilst on duty. The officer took offence and reported my behaviour. The existence of this complaint was brought to my attention when I was served the Warning Notice nearly three years after the incident. I was never interviewed or questioned about the incident and I was never given the opportunity of putting forward my explanation or my side of the story.

ii) I locked my firearm in my locker due to an oversight after I had worked a shift lasting more than 15 hours.

iii) A forthcoming Police Integrity Commission hearing was published in Sydney newspapers. Everybody I worked with at Bankstown knew about the PIC Inquiry. Subsequently I gave evidence in a private hearing. Technically I breached a non publication order because I disclosed that I had attended and given evidence but I said nothing more about it. Details of my evidence were not discussed with any other officer, however because of the media hype surrounding the matter, everybody knew about my involvement in the matter anyway.

Wanaaring Incident - August/September 2005

218 On 13 October 2006, a report was issued by Inspector Lance Leslie McFawn regarding a complaint made by Mr Christopher Rylands against the applicant. The report dealt with two issues as follows:

1. That Sergeant Lawrance sometime during 2005, did act inappropriately whilst off-duty in that he showed a piercing of his penis, to a female within the Wanaaring Hotel at Wanaaring.

2. That Sergeant Andrew Lawrance provided false or misleading information to the ODPP in response to a request for information concerning the bail determination of Mr Christopher Rylands.

219 The report recorded Mr Rylands' complaint regarding the first issue as being in the following terms: "the officer had pulled his pants down, stretched his penis and showed off his "piercing" whilst in the Wanaaring Hotel. Four females were nominated as being "assaulted" by this act". It should be noted that Mr Rylands did not witness the alleged incident and it was, in fact, Sharon Carruthers and Christie Pinnuck who told Mr Rylands what the applicant did at the hotel.

220 Inspector McFawn investigated the complaint by interviewing the applicant and various witnesses as to the two issues, including the five women alleged to have been present at the Wanaaring Hotel (a copy of the interview was attached to the Inspector's statement of evidence in the proceedings).

221 The findings of the report were as follows:

Issue 1: Adverse finding

Issue 2: No adverse finding.

222 Based on the evidence obtained in the investigation, Inspector McFawn found that the applicant had acted inappropriately whilst off duty and recommended he be counselled in the form of advice and guidance. Inspector McFawn based this recommendation on evidence obtained from Ms Pinnuck, and the admission of the applicant that he displayed his penis to Ms Pinnuck whilst in the confines of the Wanaaring Hotel.

223 Ms Pinnuck's account was that she did not believe the applicant had a piercing so she requested to see it. They went to the rear of the hotel, where he showed her the piecing for approximately 10 seconds. She saw the ring at the end of his penis. Ms Pinnuck believed they went to the back of the hotel so others could not see what he was doing. Ms Pinnuck denied being shocked and said that she only believed the applicant had his penis pierced after she had viewed it.

224 It should also be noted that Ms Carruthers stated that she had not witnessed the applicant ever showing his penis. She said she had heard 'talk' about him having a piercing but had never observed the applicant display this piercing.

225 It was the Inspector's belief that the applicant endeavoured to limit the viewing of his pierced penis to that of Ms Pinnuck by moving to the rear of the hotel. It was found that the applicant had demonstrated genuine remorse for his actions and was aware of the ramifications of such a display, as detailed in his ROI, in relation to the Wanaaring incident.

226 Inspector McFawn then made a general comment that the offence of 'wilful and obscene exposure' under s 5 of the Summary Offences Act 1988 could not be pursued due to time limitations, with the alleged offence occurring in September 2005. Further, the evidence obtained during the investigation did not establish the requisite elements for this offence. There were some concerns that the complainant was attempting to discredit a prosecution witness in raising these issues. It was noted that Ms Pinnuck expressed a belief that the complainant was attempting to disclose inaccurate information to investigating police. Inspector McFawn did not take steps to investigate the issue relating to the complainant's motivation for making the allegations.

227 The Commissioner concluded, in his Reasons for Removal, that the applicant had been "counselled" in relation to a prior incident in September 2005 at the Wanaaring Hotel in which it appeared the applicant "pulled down" his trousers and "stretched out" his penis to "show off" his piercing.

228 The Commissioner's conclusion, in this respect, employed, in fact, identical language to that used to describe the complainant's account in the investigator's report. This was hardly surprising, because the only document the Commissioner had in the CCS documents was an extract from one section of the report entitled 'Previous complaint matters requiring management action' where that description was located. (Ms Lowson made a submission that it was entirely unclear why "contemporaneous documents of the Wanaaring investigation" were not included in the CCS documents, particularly in circumstances where the first four documents detail a disciplinary matter dating back to 1999 and 2000.)

229 The Commissioner's conclusion was contrary to or differed from the report in three respects. First, the report did not conclude that the applicant had pulled down his trousers. Secondly the report did not provide evidence that the applicant had previously engaged in similar conduct. Ms Carruthers merely indicted that she had heard "talk" of the applicant's piercing. (I would note, however, that this matter is of little consequence, as the applicant later revealed in evidence in these proceedings that he had previously engaged in similar conduct.) Thirdly, the Commissioner makes no allowance, as the report does, for the applicant having been invited to undertake the conduct with a single person in a discrete location in the hotel (and that he was remorseful).

230 The evidence in this case as to the Wanaaring incident consisted of the applicant's statement in reply (in which he adopted his submission to the Commissioner) and Inspector McFawn's statement in which he annexes the investigator's report. This evidence was consistent and must result in the following conclusion as to what occurred at the Wanaaring Hotel in September 2005. The applicant, who was off duty at the time, played pool with Christie Pinnuck, Kylie Pinnuck and Margaret Hines. The applicant had a friendship with the women. A conversation arose about tattoos and body piercings that each of them had. Christie Pinnuck asked to see the applicant's 'Prince Albert' piercing and they went to an area in the hotel near the poker machine wall with a view to avoiding public observation. The applicant then undid his fly and removed enough of his penis to show her his piercing. He was wearing a ring at the time. This occurred for a matter of seconds and, as the evidence reveals, both laughed before returning to the other women at the pool table. Ms Pinnuck took no offence. The applicant stated he was not intoxicated.

231 The evidence differed from the Commissioner's findings in the following respects. The applicant did not "pull down" his trousers and "stretch out" his penis to "show off" his piercing. Rather, he undid his fly in a discreet area of the hotel and removed his penis to show one woman, Ms Pinnuck, (for approximately 10 seconds) who had asked to see the piercing. There was no other evidence in the investigator's report that the applicant had previously engaged in this type of behaviour at Wanaaring (but I again note the evidence relating to previous conduct in these proceedings).
232 Ms Lowson made a submission that the Commissioner's reasons were inadequate with respect to the Wanaaring incident. This is correct for all the reasons I have given above. I will consider these contentions later in this decision.

233 There were two issues raised, in this respect, by the respondent. First, Mr Murphy contended that the applicant's conduct at the Wanaaring Hotel in 2005 was similar to that undertaken by the applicant in the impugned conduct but was far more serious than the Wanaaring incident. Secondly, the applicant had failed to adhere to the warnings given to him arising from the Wanaaring incident.

234 As to the first of those matters, it may be accepted that there were similarities between parts of the impugned conduct and the applicant's conduct in 2005. The similarity extends to the applicant exposing his penis with the 'Prince Albert' piercing (to the extent that there was a ring inserted in the penis on both occasions) to another person in a public place, albeit with some attempt to avoid disclosure to any other person wider than the intended audience. The two events differed in a number of respects. The impugned conduct occurred in front of a larger group of people who had gathered at a work-related function. It included more than one display; the second, in one respect, in a more exaggerated form. The Wanaaring incident occurred when the applicant was off duty and playing pool in a hotel with some female friends. Further, the impugned conduct occurred over a period of time; was deliberate (at least for entertainment purposes) and largely (but no wholly) initiated by the applicant. The impugned conduct also involved him additionally attaching a bottle opener to his penis (and using it). I agree, therefore, with Mr Murphy that there were similar elements (particularly as to the core issue), but the impugned conduct was more serious.

235 As to the second issue, the counselling which the applicant received after the Wanaaring incident consisted of a 'Darling River Local Area Command Advice and Guidance Notification Form' ('the Counselling Form') issued by Inspector McFawn on 26 October 2006. The content of that advice and guidance consisted of the following:

This form should be seen as a notification that you had been given advice and guidance for work related matters, or lapses in behavioural expectations or responsibilities. Action to improve your performance level is to be initiated. You are to fully participate in any action, which is specifically designed to enhance your workplace performance.

The agreed improvements to be achieved are:

The Sergeant is to be mindful that conduct both on and off duty, has the potential to adversely impact upon the credibility of a Police Officer, the Local Area Command and the Police organisation as a whole.

236 The Counselling Form was signed by the applicant on 26 October 2006 and the investigation was concluded by the Darling River Complaints Management Team. The issues were finalised at a local level and were not dealt with under s 173(1) of the Police Act.

237 The cross-examination of the applicant as to the counselling he received was as follows:

Q. You were subsequently counselled and told that such conduct was unacceptable?

A. Not those exact terms but yes, I was provided with advice about it.

Q. Following the counselling you received you understood, that as far as the police force was concerned such conduct was unacceptable?

A. It was - the unacceptable nature of my conduct was discussed with me yes.

Q. That was, whether or not some person asked to see your piercing or party trick, it was still unacceptable?

A. I don't recall the specifics of my advice and guidance being that specific in relation to examples of the type of exposure that may or may not be unacceptable.

Q. Let me ask you this then: Following the counsel you received following that incident, you clearly understood that as far as the police force was concerned, exposing your penis in a public place was unacceptable even if someone had asked to see it. That was your understanding wasn't it?

A. My understanding was that the incident at Wanaaring was not viewed favourably by the police.

Q. I understand that but I want you to focus specifically on the proposition that it was unacceptable even if somebody asked to see your piercing? Let me withdraw that and ask a different question. It was your understanding as far as the police force was concerned the fact that someone may have asked to see your piercing did not make a showing of your penis in a public place acceptable conduct?

A. I wouldn't say that I considered that. What I understand from the Wanaaring incident is I accepted my behaviour at the hotel was unacceptable. Some of the specifics that you are putting to me didn't specifically come to my mind in regard to that incident.

Q. In any event, from October 2006 you were well aware that exposing your penis in a public place was unacceptable conduct?

A. Yes, I was aware of that from the previous incident yes.

238 The applicant accepted that the circumstances of the Wanaaring conduct and the fact that it gave rise to an investigation should have made him more aware of the adverse consequences of performing his 'party trick' on 11 December 2008. Ms Lowson submitted that, in terms of the available range of discipline or remedial action, it was at the lower end of available approaches. This must be correct. She also submitted that the escalation from a guidance and advice response at Wanaaring to being dismissed for similar conduct in 2008 demonstrated the harshness and disproportionate nature of the response in 2009. That is an issue to which I will return later.

Further Incidents

239 Over objection from Ms Lowson, Mr Murphy cross-examined the applicant as to other occasions (apart from the Wanaaring Hotel and the night in question) during which he had performed the 'party trick' in public. The applicant gave the following evidence in that respect:

Q. Can I draw your attention to the words before Mr Lawrance on the second line, p 6 of the transcript, in answer to question 36 you said: "Like I said, it was pretty late in the night and I have come out. I have a party trick which I have done before which I normally do in this sort of closed company with people sort of who I am drinking with and people who I sort of you know " - I repeat the question: What occasions apart from Wanaaring and the Christmas incident had you done the party trick, in closed company in a public place?

A. I can think of a couple of cases off the top of my head which I have.

Q. Can you tell His Honour when and where that occurred?

A. There was a Christmas party or a work Christmas party in 2002 when I was working in Sydney where myself and a couple of fellows I worked with were out drinking late at night and I showed those 2 fellows and we were in a nightclub. Then there is another occasion I can remember, in 2005 when I was on the Sergeants' course at Goulburn. We were in a restaurant but we had a closed off section of the restaurant so it was only the people in our - actually in the restaurant and we were in the section that we were. Again, it was getting late in the night and different fellows were getting up telling jokes and when I come to my turn I did the party trick at the Sergeants's (sic) course in front of the other sergeants of the course.

240 In re-examination, Ms Lowson established that the first matter referred to by the applicant occurred in a nightclub in 2002 after the cessation of a Christmas party. The applicant was at the nightclub with three other serving police officers (holding respectively the ranks of Superintendent, Sergeant and Constable). He displayed his piercing to those persons in a room or section of the nightclub in a similar fashion to the Wanaaring incident. Other patrons were present but could not see the applicant's display, which took place over a matter of seconds. It was never suggested to the applicant that his conduct that evening was unacceptable. Of the persons observing the conduct, two officers remain in service (holding the ranks respectively of Assistant Commissioner and Inspector).

241 In relation to the events of 2005, Ms Lowson established, in re-examination, that the applicant had attended a gathering of Sergeants (there was one Senior Sergeant) in a closed-off section of restaurant after the Sergeants' Course held in Goulburn. The officers were sitting in a circle "telling dirty jokes" in order to, apparently, entertain each other.. For his contribution, the applicant undertook the 'party trick', but with a room key attached to his penis through his piercing. His performance lasted a matter of seconds, was met with laughter and encouragement. There was no complaint made at the time or thereafter. There was certainly no disciplinary action taken as a result of the conduct on that occasion.

242 Counsel also obtained the following evidence from the applicant:

Q. When you gave answers earlier in respect of what occurred in December 2008, that you on that occasion were of the view you didn't think what you were going to do would be offensive, was there any link between that and the way in which your conduct on those previous occasions had been received by members of the Police Force?

A. Because I had done it before and I knew that the general reception to my party trick was that of laughter and sort of disbelieve, the reaction that people have got when they see it, I didn't think - I haven't received a reception any different to that before and I certainly wouldn't have done it if I thought I was going to receive a reception different to what I have in the past.

243 Ms Lowson noted that it should be recognised by way of chronology that the Wanaaring incident occurred sometime before September 2005 but the applicant was not subject to any investigation until September 2006. As a result, all three incidents (where the applicant had exposed his penis piercing) had occurred before the investigation. She submitted that, to that extent, those further two incidents effectively play no role in these proceedings.

CHARACTER EVIDENCE


244 The applicant relied on 15 character references in his submissions to the Commissioner. They included 12 references from senior or supervising officers in the Police Force: Chief Inspector DJ Spooner, Coffs/Clarence LAC, Detective Inspector Jason Weinstein, Darling River LAC, Detective Inspector Greg Paul Moore, Crime Manager, Richmond LAC, Detective Inspector Brett Greentree, Crime Manager, Darling LAC, Inspector John Wadsworth, Albury LAC, Inspector Mick Heap, Richmond LAC, Detective Senior Sergeant Peter O'Reilly, Coffs/Clarence LAC, Detective Senior Constable Duncan Butcher, Darling River LAC, Sergeant Christopher York, Bankstown LAC, Sergeant Rod Morris, Tweed/Byron LAC, Acting Sergeant Matthew Hinton, Yamba Police Station and Senior Constable Jade Redman, Central Hunter LAC. References were also given by Father Rex Hackett, who is the Parish Priest at Grafton and Police Chaplain within the Grafton LAC; Ms Nicola Sarah Morris, a registered Nurse at Bourke Hospital, and his wife, Rebecca Lawrance.

245 These character and professional references in support of the applicant were attached to the applicant's response to the Notice. Eleven of the 12 officers who provided character references (excluding SC Redman) made statements in the proceedings to the effect that they had read the Commissioners Statement of Reasons and Order, and their view of the applicant remained unchanged.

246 I have considered the statements in support of the applicant in their entirety. They speak very favourably of the applicant both as to his personal character and value to the Police Force. I have included a sample of references from a Chief Inspector, Detective Inspectors, Inspectors and a Detective Senior Sergeant below:

Chief Inspector DJ Spooner

Sergeant Lawrance quickly gained my confidence on a number of levels.

In a professional sense he is very well read, knowledgeable, diligent and motivated. He is respectful to superiors, peers and subordinates alike and conducts himself as a role model in his day to day dealing with his work, the public and his role as a Sergeant of Police.

I have formed the opinion that Sergeant Lawrance is worth more to the organisation and the community as a member of the NSW Police than standing on the side lines. This fellow is worth saving. He is an officer possessed of an extremely strong work ethic and contributes in a manner which exceeds that which, in this day and age, has become accepted.

Detective Inspector Jason Weinstein

Sergeant Lawrance in my view is the type of Sergeant that our force is in dire need of. He is strong and sound Police Officer, an exceptional Sergeant of Police and I have no doubt the type of person that will reach Commissioned Officer ranks.

Detective Inspector Paul Moore

As Sergeant Lawrance's Duty Officer I found him to be dependable and honest officer.

It was Sergeant Lawrance's ability through his superior people management skills, to effectively deploy and task staff that led him to be identified as a Sergeant more than capable of relieving at the rank of Inspector.

I developed respect for Sergeant Lawrance based on my observations of his ability to perform his duties as a leader in a professional and ethical manner.

I consider Sergeant Lawrance's previous history as a diligent and dedicated police officer and leader support a case for leniency in terms of his punishment on this occasion.

Detective Inspector Brett Greentree

I always found Sergeant Lawrance to act in a way befitting a senior manager of this organisation; he is reliable, professional, trustworthy and was by far the stand out Sergeant across the Command (Bourke).

It is my view that Sergeant Lawrance is a fine officer and one that should be retained. I have no doubt that Sergeant Lawrance will make Commissioned Officer ranks in the future and I am sure he would perform that role at an exceptionally high level. I believe that if lost to the organisation Sergeant Lawrance will be a significant loss.

Inspector Mark Heap

It was during this period of our working relationship that I truly saw how dependable and professional Sergeant Lawrance was. He performed to an extremely high standard in regards to his roles and responsibilities and was able to achieve all goals set, both personally and within his team.

I again re-affirm my support for Sergeant Lawrance to remain within the NSW Police and at the rank of Sergeant.

Inspector John Wadsworth

I have had the opportunity to observe Sergeant Lawrance supervise staff and commend him on his exceptional leadership and ability in this remote location (Bourke) where decisions must be made often in confrontational circumstances with limited resources. I always found him to exhibit exceptional leadership qualities which led to him relieving as Duty Officer at Darling River LAC for extended periods.

I believe his ability as a Sergeant and a leader should be considered on this occasion.

Detective Senior Sergeant Peter O'Reilly

To successfully work at Wanaaring, a police officer must possess excellent communication skills, initiative and courage. Sergeant Lawrance consistently displayed these characteristics as well as being dependable, conscientious and hard-working police officer who was held in high esteem by this community.

At Maclean, Sergeant Lawrance again improved the performance of the staff which was evident through case management and successful prosecutions. His performance also reflected in the immediate positive impact he had on the community....

APPLICANT'S ATTITUDE TO MISCONDUCT


247 From his earliest recounting of his conduct, the applicant displayed what appears to be a dichotomy in his thinking between a limited comprehension of the inappropriateness of his conduct to a quite significant recognition of his wrongdoing and (as later displayed) a desire for its rectification. Thus, on the one hand, in his ROI, he strained to explain that he did not consider that he had offended any persons at the party, that his behaviour was "fun" and that his regret was, in essence, that the conduct had been disclosed (by the expression "I'm kicking myself"). He was anxious to explain how the conduct was carried out in "closed company" and the source of the complaint which had led to the investigation. On the other hand, in the course of discussing how the conduct came to notice, the applicant demonstrated a more profound acknowledgement of his wrongdoing when he said "I can see how in that regard that those actions could be viewed to, to be some sort of discredit, you know, of the Police or, or inappropriate. I, I can see how that could, could have the potential to happen".

248 That duality of position carried over to his response to the Commissioner. He said "Those in attendance who saw what happened were not offended by my conduct" and "not one person who was present has said they found my conduct to be offensive". He does make the concession, in this respect, that an officer may not wish to complain about another officer and that (reflecting some of the submissions made on his behalf during the proceedings), the conduct was "in extremely poor taste". On the other hand, the applicant stated that he deeply regretted his conduct and that it should not have happened. He recognised that his behaviour was related to alcohol abuse and mentioned the steps he had taken to modify his behaviour, in that respect, and his desire to act professionally both on and off duty. I will discuss this further in the next section of this decision.

249 In his statement, the applicant accepted that his conduct was "stupid and irresponsible" and that he was thoroughly ashamed that [his] actions and dismissal from the Police Force [had] brought so much hardship on [his] family".

250 This pattern of recognition of his conduct was continued in cross-examination. When asked about the previous incident at Wanaaring and whether he understood that the Police Force viewed the exposure of his penis in public as unacceptable, he replied: "My understanding was that the incident at Wanaaring was not viewed favourably by police". Yet, he subsequently accepted that the previous conduct was unacceptable. In relation to the impugned conduct, when asked what he meant by the expression, to the effect, that he was "kicking himself" he explained: "I was kicking myself because something that was meant to be fun obviously turned out in something a lot more serious than that". He continued that he had "some sort of regret that I did it" and that he was "[kicking himself] for the fact that it turned into a - some sort of a complaint matter". He did not accept that his conduct was indecent. He contended that his conduct was not offensive "in the context of how it occurred". When asked whether there were other persons at the party who may have been offended, he replied that he did not believe anyone he intended to see the conduct would be offended and that it was not his intention to offend anyone. From his reading of the evidence he did not believe anyone was offended by his conduct. On the other hand, he gave the following evidence:

Q: You still don't think what you did was wrong, do you?

A: I can clearly see the inappropriateness of what I have done.

...

Q: Entirely unacceptable?

A: I agree that it was unacceptable what I did as far the inappropriateness of what occurred.

251 These considerations raise questions as to whether the applicant had demonstrated remorse and contrition in the light of a proper appreciation of his misconduct. This bears further upon the question as to whether the applicant would be likely to behave in a similarly inappropriate manner in the future. That question will be better answered, in the light of counsel's submissions set out later in this decision, and after the following section dealing with the contribution of alcohol to the impugned conduct.

THE CONTRIBUTION OF ALCOHOL


252 The applicant was well affected by alcohol when he engaged in the impugned conduct. SC Hardwick described the applicant as being "seriously affected by alcohol". The applicant had started drinking beer, 'XXXX Gold' (mid-strength), and then consumed wine with his meal followed by cans of rum mixers. In fact, he had consumed overall at the restaurant approximately six bottles of beer, a bottle of wine and six cans of rum (the precise quantity consumed at the time of the impugned conduct is unclear, but it is plain that the applicant was intoxicated).

253 In relation to the affects of alcohol, Mr Murphy submitted; "There (sic) was not a spur-of-the-moment, unexplained and uncharacteristic act of somebody affected by alcohol or otherwise". It was submitted for the applicant that he had not advanced the consumption of alcohol as an excuse, but as an "explanation" and that the role of alcohol had been to impair his judgment and reduce inhibitions that might otherwise militate against such misbehaviour.

254 The submissions of counsel for the parties, in this respect, are not entirely inconsistent. Mr Murphy was correct to submit, in my view, that the applicant was able to engage in a quite deliberate course of conduct, in which he set about to provide this public display either for his own or other persons' gratification or amusement. This does not mean, however, that the alcohol consumed and the applicant's intoxication did not impair his judgment and act as a catalyst for the conduct engaged in. The reconciliation of these different viewpoints becomes more apparent if consideration is given to the report of Ms Wendy McCartney (which was tendered into evidence without objection). Ms McCartney was a psychologist, who treated the applicant after the incident.

255 Before doing so, it will be useful to note one matter raised at the end of the applicant's response to the Commissioner which was in the following terms: "I appreciate that I should have thought of this at the time, but alcohol deadens one's ability to look at something sensibly".

256 Ms McCartney's report (which was not the subject of cross-examination) offers support for the contention that alcohol did contribute to the applicant's behaviour on the evening of 11 December 2008 by impairing his judgment and perspective of his wrongdoing. I am not merely referring, in this respect, to the typical effects of excessive alcohol consumption arising from binge drinking, but to the broader impact of alcohol on the applicant's life arising from a sustained pattern of excessive consumption of alcohol: what colloquially might be called an "alcohol or drinking problem". The problem constituted a lack of awareness of how alcohol was adversely affecting his behaviour in his work, family and social life, and the acts or omissions undertaken commensurate with that lacuna in judgment.

257 Ms McCartney stated that the applicant's score on the 'Alcohol Use Disorder Identification Index' (developed by the World Health Organisation to enable the early detection of persons who are likely to suffer harm as a result of their drinking) was '22', placing him in the category described in the Index as 'high risk' for potential alcohol-related problems for the period "prior to and including the December 2008 incident". (It will be recalled, in this context, that alcohol was accepted as a contributing factor in the 1997/1998 incidents although it was found that the applicant had overcome the problem.)

258 Ms McCartney reported upon the progress of the applicant after the incident in managing alcohol. I will return to that matter, but it is her detailed discussion of the areas of "cognitive and behavioural change" which are instructive in the present context. She found that the applicant was "now aware of the physical, social and work-related consequences of risky levels of consumption. He is able to foresee the consequences of his behaviour and the impact on work, family and social life". She also identified that the applicant also now understands "situations of high risk" and had learnt to control "his behaviour as maturity and role demand". This suggests, as I have noted, the applicant's behaviour and perception of his behaviour was affected by excessive alcohol consumption, and that that infirmity existed at the time of the impugned conduct (as the high score on the index was registered before and at this time). Thus, it should be inferred that those personal difficulties were developing or existed before the "change" and were broadly consistent with the notion that the applicant's judgment was impaired and lacking perspective at the time of the impugned conduct. Their existence explains how alcohol may have made him less risk adverse and not fully comprehending his work and non-work responsibilities vis à vis the impugned conduct. This prior alcohol problem is should result in a conclusion that the impugned conduct was not simply a careless act of self indulgence during a particular social occasion but that there were some personal mitigating factors which to some extent explain his behaviour.

259 It must be accepted that, even given this description of the applicant's alcohol problem, an element of the applicant's behaviour involved self determination, probably driven by a desire to engage in the exhibition he ultimately undertook, and that he did so, contrary to what maybe reasonably expected of an officer of his seniority.

260 A balancing of these considerations properly results, in my view, in a conclusion that alcohol was a contributing factor in the applicant's behaviour. However, that factor cannot wholly justify or excuse this behaviour, and must simply constitute a mitigating factor which will be taken into account in the consideration of the applicant before the Commission.

261 It will also be relevant to the consideration of the present application to examine whether the applicant's problem with alcohol has been modified or removed on a lasting basis as a result of treatment he had received and/or his own efforts at rehabilitation.

262 After the incident, the applicant became involved with the NSW Police Employee Assistance Program and, as I have noted, he attended sessions with Ms McCartney. In his response, he stated that he had modified his behaviour and attitude towards alcohol, there had been no incident since the party and that he had maintained "good habits". Ms McCartney reported that, by the test conducted on 21 September 2009, the applicant had a "low current risk of experiencing problems due to the hazardous consumption of alcohol". She also indicated that the applicant had made significant progress from April to September 2009 in changing his alcohol related behaviour and attitudes.

263 Ms McCartney recorded two opinions as to the applicant's modified behaviour. The first concerned an opinion expressed before any decision was made by the Commissioner to remove him as a police officer and, the second, after the Order to Remove was made. Both of those opinions are that the applicant has made a lasting modification to his pattern of alcohol consumption and related behaviour. I set out both opinions below:

Opinion 1:

Sgt Lawrance has made significant and seemingly lasting modification of his pattern of alcohol consumption, behaviour, family life and changes to his pattern of thinking about alcohol. He has adopted a more mature attitude to his responsibilities at work and remains a well-intentioned and motivated police officer. He is aware of the benefits of these shifts in cognition and behaviour. He responded very well to counselling, was committed to therapeutic aims. I believe the above changes are enduring and that Sergeant Lawrance has adjusted well since the 2008 incident.

I have left the remaining approved appointment for after a decision made in relation to his 2008 behaviour.

Opinion 2 (after the removal of the applicant):

It is my belief that Sgt Lawrance has positively modified behaviour and attitudes towards drinking in a way that will endure over time. It has been to his advantage that he has been able to profit from the counselling sessions offered as a rehabilitative step. I am confident in his ability to act in his role in an appropriate and mature way, under stress and that these conduct changes are ongoing.

COMMISSIONER'S REASONS FOR REMOVAL


264 I have considered the Commissioner's Statement of Reasons ('the Reasons') for the Order removing the applicant from the Police Force. The Reasons were dated 30 December 2009 and issued pursuant to s 181D(4) of the Police Act. What appears below are extracts of some pertinent parts of those reasons. Where counsel has relied on sections of the Reasons in support of contentions advanced, those parts have been italicised (and on one occasion an explanatory note has been included):

In making the determination, and in accordance with the relevant legislation, I have taken into account the grounds set put in my Notice pursuant to section 181D(3)(a) of the Police Act 1990, together with the evidence contained in the supporting documentation, which were served on you on 7 October 2009. The grounds set out in my Notice to you refer to your conduct. 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 material that has been presented to me in this matter, and I provide the following reasons for my determination: (Mr Murphy relied upon this part of the Commissioner's reasons to demonstrate that the Commissioner had considered the character evidence provided by the applicant.)

On 11 December 2008, you attended the Lower Clarence sector Christmas party at "Tommy's" Chinese restaurant in Yamba. At the time, you were the sector supervisor at Maclean.

It appears that numerous other officers (including Sergeant Volker Ruehe, Sergeant Greg Levey, Senior Constable Peter Barnier, Senior Constable Ralph Clark, Senior Constable Matthew Gosper, Senior Constable Greg Hambrow, Senior Constable Ashley Harwick, Senior Constable Sid Hill, Senior Constable Mathew Hinton, Senior Constable Jane Morgan, Senior Constable Rebecca Pipes, Senior Constable Steven Pope, Senior Constable Lindy Roberts, Senior Constable Matthew Sippel and Senior Constable Daniel Wills) also attended. It appears that at least eight civilians were also present including your wife, Senior Constable Pope's wife and various other officers' wives, as well as another couple who I understand own a security company in Yamba.

It appears that most of the attendees were drinking alcohol to varying degrees, both prior to and during the meal at the restaurant. It appears that your group was seated in the front veranda section of the restaurant. The evidence suggests there were many other diners inside the restaurant during the course of the evening. One witness estimates that there were 20-30 people in addition to those in your group. Another witness estimates the numbers to be between 50 and 100. It appears that, at about 10:00 pm at the end of the meal, various people moved around the table and away from it "mingling" in different groups.

Your evidence

You were subjected to a directed interview on 16 January 2009. You admit that, by the end of the meal, you had drunk around half a dozen beers, a bottle of wine and several rums. You say you were quite well affected by alcohol.

You say that, at the end of dinner, the topic of tattoos and body piercing came up. You say you mentioned that you had a piercing in your penis and that you had a "party trick". You say that the "party trick" is one which you have done before, and "which [you] normally do in sort of closed company". You say you went to the men's toilet. You say you took a bottle opener with you, which you put through your piercing and did your pants back up. You say you then returned to the table and that "everyone" was asking you to show your party trick. You admit that you then undid your fly and exposed the end of your penis, which had a piercing in it. I note you say you only exposed your penis to the people who were directly in your company in front of you and it was only "for a matter of seconds...until people saw it."

You say that, later in the evening, Senior Constable Pope came towards you with a bottle of Corona. You say he asked if he could have his bottle of beer opened. You say he then used the bottle opener, which was still attached to the end of your penis, to open the bottle. You say that, while the bottle opener was out of your pants (when it was used to open the bottle), your penis may not have been.

You say you definitely know that your wife, Senior Constable Pope and his wife saw your penis. You also say that two or maybe four other people were also in the group with you and that they "obviously" would have also seen your penis. You say that everybody laughed.

Other officers' evidence

A number of the other officers who were present have been questioned over the incident.

Senior Constable Hardwick says that, at the end of the meal, he joined a group with you and your wife, Senior Constable Pope and his wife and Senior Constable Hembrow. Senior Constable Hardwick says that you disappeared from the table and that a comment was made that you "had gone to do something about a party trick". He says that, when you returned, you stood and undid your fly and pulled out your penis. He says your penis was flaccid and that it had a "round key-ring thing attached to a bottle opener that was through the head of his penis". Senior Constable Hardwick says that "[e]veryone was laughing when they saw this".

Senior Constable Harwick says that, later in the evening, Senior Constable Pope approached you with a bottle of Corona. He says that you stood up, unzipped your fly and pulled out your penis. He says Senior Constable Pope then used the attached bottle opener to open the Corona. He says that "everyone laughed at that."

Senior Constable Hardwick goes onto describe that, a short time later, Senior Constable Pipes, Senior Constable Peter Barnier and his wife came back to the table. He says someone asked you to show them your party trick. He says you again stood up, unzipped your fly and pulled your penis out (it appears no beer was opened on this occasion). Senior Constable Hardwick says that Senior Constable Pipes immediately walked away, saying she was disgusted.

Senior Constable Hardwick says he had no complaint about the 'trick' and was not offended. However, he says he "thought it was pretty stupid". I note he says you didn't turn around towards the restaurant, and the trick was directed only at the group in front of you. He says he could not say who else had seen the events but that it was "reasonable that others may have."

Senior Constable Gosper says that you left the table at some stage, and that when you returned you said something similar to "gather around... party trick". He says you were standing up and that you undid your fly and took out your penis. He says he saw a bottle opener "attached to [your] penis via a little ring thing through the top". He says he recalls that Senior Constable Pope opened a beer with that bottle opener.

Senior Constable Gosper says he has no complaint about the trick and was not offended. I note that he says you "deliberately" had your back to everyone else and that you "looked around to ensure nobody could see immediately before [you] did it". He says it was "not a display to everyone, but rather a private thing between blokes that had been drinking".

Senior Constable Pope says that you exposed your penis while you were seated. He says that you were "fairly discreet about how high [you] lifted [your] body". Despite saying that he did not see your whole penis because the bottle opener obscured his view, he admits leaning over to you and opening a bottle of Corona with the bottle opener that was attached to your penis.

Senior Constable Pope says he found the trick "hilarious" and "was not offended" by it, because it "follow[ed] our general conversation". He says "the four of us laughed", apparently referring to himself, his own wife, you and your wife.

Senior Constable Barnier says that, possibly around 10:00 pm, he heard people yelling "[c]ome have a look at this" at the other end of the table. However, he says he did not see anything. He says that at about 10:40 pm he and his wife were saying goodbye to everyone and that you yelled out to him to get a beer and bring it over to the table. He said no, as he was not drinking that night. However, he say he saw someone else pass a beer to you and that you opened the beer with a bottle opener at "groin level". While Senior Constable Barnier says the opener "was allegedly attached to [your] genitals", he says he did not see any of your "private parts" himself.

Senior Constable Sippel says he saw you take out your penis and that it had a key ring attached to it. He says he was not offended by the trick.

Senior Constable Morgan says she heard you talking about a "party trick" which had something to do with your penis. She says she saw you stand up and put your hands "around where [your] belt area was". She says she anticipated what was going to happen from previous talk during the night. She says she "didn't want to see anything", so she moved to a different area of the table. She subsequently moved outside. She says she would have found it offensive if she had seen your penis in that situation.

Senior Constable Pipes says she heard someone mention a "party trick". She says she then left the table and went outside. She says she heard people laughing and joking at something which was happening at the table, but that when she went back to the table she did not see anything or know why people were laughing.

Sergeant Volker Ruehe says that, after the bill was paid, he went outside. It appears that somebody outside told him what was occurring inside. He says "I decided to stay outside because I wasn't interested in what I was told."

Other evidence

During your directed interview, you asserted that if you thought that anyone would have been offended by your actions, you would not have engaged in them. Notwithstanding this, in the context of a discussion about the requirements of the NSW Police Force Code of Conduct and Ethics, you admitted that you could understand how your actions could be viewed as bringing discredit on the Police Force and that it could be viewed as inappropriate. I also note you say you appreciate that being the sector supervisor involves being a role model and a leader.

It appears that you seek to explain your conduct because you were "comfortable" in the "closed group" (of your wife, Senior Constable Pope and his wife) that you were in, and by reference to the amount of alcohol you had consumed. In that regard, I note that you said you are seeking ongoing guidance to manage your alcohol consumption.

It appears that, prior to the Christmas Party, a message from the Commander, Professional Standards, was sent out to all police regarding behaviour of off-duty police during the Christmas and New Year period. That message, among other things:

· reminded "ALL police that they are accountable for their conduct at all times, including while off duty";

· urged officers to 'be mindful that we continue to represent the NSW Police Force when off duty";

· warned officers in relation to 'the excessive use of alcohol by off duty police";

· reminded officers of their obligations under the NSW Police Force Code of Conduct and Ethics and regulation 9 of the Police Regulation 2008; and

· reminded officers that "excessive consumption of alcohol will never be accepted as an excuse if your off duty behaviour results in allegations of misconduct" and that "[s]imply stated, it is not worth risking your career by your alcohol affected off duty conduct" (emphasis added).

I also note that you admitted that you have engaged in prior similar conduct, and that you had done so "in closed company". You admitted that "unfortunately I've had a, a previous issue, similar issue to this when I was stationed in the west of the state where somebody had heard about me doing my party trick". Indeed, I understand you have previously been counselled in relation to an incident in or around September 2005 at Wanaaring in which it appears you pulled down your pants and stretched out your penis to show off your piercing.

In all the circumstances, I consider that you inappropriately exposed yourself on 11 December 2008 in circumstances where the exposure:

· was to a number of other police officers and at least two civilians;

· occurred at work-related function;

· occurred in a public place, in close proximity to other members of the public;

· followed a written warning from Professional Standards Command about the dangers of excessive alcohol use and officers' behaviour at Christmas/end of year functions;

· was significantly aggravated by:

o the fact you admit to having deliberately attached a bottle opener to your penis or to the piercing in your penis in preparation for the "party trick"; and

o your subsequent conduct in allowing another serving officer to open a beer bottle with the bottle opener while it was still attached to your penis; and

· was not the first time you had engaged in this type of conduct (and indeed, you had been counselled on this topic previously).

Your conduct was contrary to the Police Act 1990, the Police Regulation 2008 and the NSW Police Force Code of Conduct and Ethics.

Consideration

I consider that the fact that you conducted yourself in this manner, in the presence of your work colleagues and other civilians, is in and of itself serious misconduct. I consider this to be the case regardless of how many people saw the full "trick". Further, even if as you suggest, only a small number of people actually saw your penis exposed, it appears your actions were actively designed to be a demonstration of a "party trick" to entertain those present, and had the real potential to be viewed by more than simply those people sitting directly near you. The function was a work related event in a public place. You were not simply among close friends in a private environment. Indeed, even if all of those in attendance did not actually see your "trick", the evidence suggests that they were aware of what you were doing.

As set out above, I am particularly concerned that, this does not appear to have been a one-off spur-of-the-moment act of 'simply' exposing your penis. You appear to have taken deliberate steps to prepare for the 'party trick' by going to the men's toilets to attach the bottle opener to your penis piercing. You also admit to then proceedings to demonstrate the 'party trick' on two occasions. There is also evidence to suggest you offered to do so a third time.

While there is evidence that a number of people present found the incident amusing, I nevertheless consider that it is reasonable to conclude that your conduct was highly likely to be offensive - not the least to the various female officers and civilians who were present. I note that a number of people deliberately moved or stayed away from you because they did not want to see your "trick". I note that I consider these to be aggravating factors.

I also consider your seniority to be an aggravating factor. As a Sergeant of Police and a sector supervisor, you simply should have known better than to have engaged in the conduct that you did.

I do not consider your alcohol consumption to be a mitigating or "excusing" factor. In any event, I do not consider that the evidence suggests that you were so intoxicated that you had no control over your actions. To the contrary you appear to have deliberately set out to behave the way you did.

I am also very concerned that you engaged in your conduct in the face of a specific memorandum circulated by the Professional Standards Commander prior to the function highlighting the responsibilities and standard of behaviour expected from officers during the festive period in connection with off duty conduct. I consider this to be a further aggravating factor.

I am particularly concerned that it appears this was a second occasion where you have exposed yourself in a public place. Further, this most recent incident occurred after you were counselled following the last incident. I consider these to be significant aggravating factors.

Finally, and while noting that no proceedings were ultimately commenced against you, I am concerned that serious consideration needed to be given as to whether you should be criminally prosecuted as a result of your conduct.

In all the circumstances, I consider that your alleged conduct as fallen well below the level expected by the NSW Police Force, the NSW community and myself, and may warrant your removal from the NSW Police Force.

I have taken into consideration all of the circumstances, the nature and extent of the allegations given your history of the similar behaviour in 2005 and the fact that you were provided a warning on this occasion. You appear to have a blatant disregard for this previous warning.

I have also taken into consideration that you were issued with a Region Commander's Warning Notice in 2002, I am satisfied that you must have been aware that any further issues may result in reviewable action or your removal from the NSW Police Force.

As a Sergeant in the New South Wales Police Force you are required to have an understanding of appropriate behaviour and maintain positive and professional relationships with your colleagues and the community.

Prior to attending the police function at the Yamba Hotel a message was circulated as a warning to officers to behave appropriately. In your position as sector supervisor you should have been upholding these standards. You also appear to have a blatant disregard for this warning.

In all the circumstances, I consider that your conduct has fallen well below the standards and expectations of both the community and the NSW Police Force.

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

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

SUBMISSIONS

Submissions for the Applicant

265 Ms Lowson made, in summary, the following submissions (in addition to those recorded in relation to factual issues):

Challenge to Commissioner's Reasons for Removal

1. There was very little difference in the way in which the Commissioner addressed the Notice and the Order, demonstrating a failure to properly have regard to the applicant's written submissions. Further, the Reasons were attacked on the following bases:

(i) Despite the Commissioner stating that he had taken into account the applicant's written submission in response to the grounds set out in the Notice, he made no reference to the extensive character references which were attached to the applicant's response. These were extremely supportive of retaining the applicant in the Police Force. The opinion was expressed by the officers giving the references that the community and NSW Police Force would be best served by retaining the services of the applicant;

(ii) The Commissioner gave no allowance for the contribution of alcohol to the applicant's conduct and his later rehabilitation in that respect;

(iii) The Commissioner disregarded significant aspects of the evidence in his reasons and emphasised parts of the evidence that were contrary to the applicant's interests and in fact misleading. For example, Sergeant Ruehe estimated in his statement that there were 50 to 100 people in addition to the Police group at the restaurant (this was mentioned in the Order) but then he also stated that there was no other party, other than staff, present at the time of the occurrences. However, this was not referred to in the Reasons and there was a sense conveyed that the impugned conduct occurred in the presence of a large number of people from the public whereas, in fact, the statements do not reflect that at all;

(iv) The Commissioner was incorrect in citing SC Hardwick's evidence saying SC Pipes was "disgusted";

(v) The Commissioner's conclusion in relation to the Wanaaring incident was wrong or misleading;

(vi) The Commissioner placed significant weight on the fact that an email or message was sent from the Commander of Professional Standards concerning the consumption of alcohol over the Christmas and New Year period. The applicant had not seen the document. Further, there was no evidence obtained as to when this document was sent or whether it was sent prior to the Christmas party on 11 December 2008.

2. The Commissioner also had opportunities in the proceedings to call further evidence from any of the officers who provided statements but instead, chose to rely solely on the statements.

Overview : Misconduct

3. The applicant does not dispute the findings of misconduct. The question for the Commission was to determine whether the removal was the appropriate penalty to impose for the misconduct. The Commission must weigh up a number of factors including:

a. The objective seriousness of the misconduct;

b. Prior misconduct;
c. The applicant's attitude to the misconduct;
d. The respondent's actions in relation to the misconduct;
e. Support for the continued employment of the applicant;
f. The impact of the termination on the applicant and his family .

Seriousness of the Misconduct

4. The misconduct was not properly characterised as serious misconduct having regard to the following matters:

a. It occurred whilst off duty at a police Christmas party;

b. It occurred in the context of entertaining colleagues, predominately colleagues with whom the applicant had a social relationship;

c. It did, in fact, entertain those colleagues, one of whom used the bottle opener (which was attached to the applicant's penis) to open his beer;

d. There was no evidence that the conduct adversely impacted upon the Christmas party overall, which was variously described as "great", "fun" and "cheerful";

e. Notwithstanding the nature of the misconduct, the applicant was discreet in that he revealed the 'party trick' to his immediate colleagues in close proximity with whom he was engaged in conversation;

f. He revealed the bottle opener attached to his penis after ascertaining that there were no other patrons in the restaurant;

g. There was no evidence that the conduct offended any person present at the party, or that any person in attendance complained about the conduct;

h. There was no evidence that there was a risk that any person other than those attending the party would have seen, or even been aware of the conduct;

i. There was no indication that anyone (including the two other Sergeants) intervened or told the applicant to stop after the first occurrence. His behaviour appeared to be accepted as part of the festivities of the evening;

j. A number of attendees were consuming excessive amounts of alcohol, including the applicant;

k. At a technical level his conduct could fall under s 5 of the Summary Offences Act 1988. However, no charges were laid.

5. The applicant's evidence was largely supported by statements of the police officers in attendance at the party.

6. Without diminishing the serious nature of any activity that involves exposing a penis in a public place, the conduct occurred on two or three occasions for a matter of seconds each time. It was intended to be, and was treated as being, fun and a source of entertainment for those at whom it was directed. It did not involve:

a. Any issue of integrity;

b. Any malice;

c. Any physical or verbal assault;

d. Any actual or threatened violence;

e. Any poor performance of policing duties;

f. Any insubordination or disrespect to senior officers.

7. The conduct lies at the lower end in the scale of seriousness and the removal of the applicant was too severe a penalty in the circumstances: see Metropolitan Meat Industry Board.

Prior Misconduct

8. The applicant had previously shown a woman the piercing in his penis with the ring inserted. The context of that conduct was different to the impugned conduct at the restaurant, in that:

a. The woman asked to see the piercing because she did not believe that the applicant had the piercing;

b. The applicant went to a quiet area to show the piercing to the woman only;

c. There was no bottle opener or 'party trick' involved, and

d. The woman looked at the piercing for a matter of seconds and there was no 'entertainment' value associated with the conduct.

9. Despite these differences, the applicant accepted that the circumstances of the previous conduct, and the fact there was an investigation, should have made the applicant more aware of the "potential adverse consequences" of performing his 'party trick'.

10. The applicant should have, but did not, learn from the Wanaaring incident that he should think before revealing his penis in public places, irrespective of how discreet he might be.

11. In relation to the Wanaaring incident, the applicant received a 'Guidance and Counselling Notice' from (then) Acting Inspector McFawn. The matter was dealt with locally and finalised with counselling. It was not dealt with under s 173 of the Police Act.

12. In relation to other matters of prior misconduct, the Commander's Warning Notice in 2002 was not directly relied upon to justify the applicant's removal and occurred more than ten years ago. It was dealt with by the least serious form of non-reviewable action.

13. Since 2000, the applicant's work history has been otherwise exemplary and should count much more in his favour than against his reinstatement. The Commission should be satisfied that the applicant has made a significant contribution to policing in New South Wales

Applicant's Attitude to the Misconduct

14. The applicant has shown appropriate remorse and contrition for the incident. On 29 December 2008 the applicant took the initiative and approached Detective Chief Inspector Breton when he was made aware of "gossip" surrounding the matter.

15. Alcohol was a significant contributing factor in the applicant's conduct. It had the effect of lowering inhibitions as well as contributing to the likelihood of the conduct occurring. The applicant recognised that excessive alcohol consumption was a factor in his conduct and has since modified his drinking habits to maintain a healthier attitude towards alcohol.

Commissioner's Reaction to Misconduct

16. As a result of the investigation into the applicant's misconduct, the Local Area Commander stood the applicant down from his position as relieving Inspector and moved his work location from Maclean to Grafton. His duties were also changed from Shift Supervisor to Station Manager, resulting in a loss of overtime.

17. However, the Commissioner was inconsistent during the period from mid December 2008 to late October 2009. The applicant was not assigned restricted duties and continued to perform all police work, albeit as station supervisor. He retained his appointments. He was not suspended (with pay) until October 2009 and was removed in January 2010.

18. Whilst the applicant was on notice of the continuing investigation, there had been no explanation by the Commissioner as to why, on the one hand, it was more acceptable for the applicant to perform full police duties during most of 2009, when the key facts about the misconduct had been established by January 2009 (largely through the applicant's own admissions) and, alternatively, the only appropriate response to that misconduct was to remove the applicant from the Police Force.

Character Evidence

19. The level of support for the applicant to return to employment as a police officer is in the highest possible terms, from superior officers as well as peers: McCabe v NSW Police Service [1996] NSWIRComm 105; (1996) 99 IR 361.

Impact on the Applicant

20. The applicant has suffered personally, financially and in his career as a result of the poor judgment shown by him at the restaurant. He has learnt in the most difficult of circumstances that he must take full responsibility for his actions, even when he is off duty.

21. The Commission should reinstate the applicant to his former position of Sergeant at the Grafton Police Station and order that the applicant have full continuity of service with the Police Force.

Remedy

22. The applicant submitted that the Commissioner may exercise power conferred under s 89 of the IR Act in proceedings brought under s 181E, save for the powers conferred under s 89(7). Thus, the Commission may reinstate on terms and conditions by utilising the combined powers conferred under ss 89(1) and (8). These powers extend to the Commission granting relief of the kind contemplated under s 173 of the Police Act; and in particular, ss 173(2)(a) or 2(b). For example, the applicant could be reinstated at the same rank but on a lower salary level or increment.

23. Further, it was submitted that the Commission had power to order re- employment, if the Commission found reinstatement was impracticable. However, there is no evidence warranting a conclusion that reinstatement is impracticable. For example, there is no evidence that officers at the Grafton Police Station would have any difficulty working with the applicant.

24. As to re-employment at a lower rank, the applicant submitted that such a decision was within power but such an order was dependant upon the availability of a position. That form of order would raise questions about vacancies in middle management positions and in the regions. The Commissioner, on the other hand, submitted that the power was limited to re-employing at a lower rank and did not extend to re-employment at a particular location. In terms of lower rank, both parties accepted that there were available positions at a senior constable rank within the Police Force for the purposes of s 89(2), but wished to be heard if the Commission were minded to consider fixing a location condition in any such order.

Submissions for the Respondent


266 Mr Murphy made, in summary, the following submissions (in addition to those earlier recorded in relation to factual issues):

Order under s 181D(1)

1. In the Commissioner's Reasons it was stated that the Commissioner took into account the grounds set out in the s 181D(3)(a) Notice served on the applicant, together with supporting documentation, as well as the applicant's written submission in response.

2. The findings made by the Commissioner in the Order under s 181D(1) were plainly open to the Commissioner, based on the evidence before him, as was the decision to remove the applicant from the Police Force.

3. Whilst the conduct of the applicant, which was admitted by him, may not fall within the worst class of conduct that comes before the Commission, even when account is taken of all mitigating factors, the impugned conduct was still properly regarded by the Commissioner, in all circumstances, as sufficiently serious misconduct to warrant dismissal.

Prior Incident

4. In October 2006, the applicant exposed his penis piercing to a female patron at the Wanaaring Hotel. Inspector McFawn considered that he had engaged in inappropriate conduct which had the potential to adversely impact upon his own credibility as a police officer and the credibility of the NSW Police Force. The applicant was formally counselled after the incident.

5. The prior incident was relevant to these proceedings for three reasons:

i. The applicant was not a first time offender;

ii. The applicant must have been acutely aware that exposing his penis in a public place was unacceptable behaviour for a police officer;

iii. In this case, the applicant is seeking another chance. He has already had one.

Evidence of Witnesses

6. Sixteen police officers who were present at the party gave written statements. The following considerations emerge from the statements, together with the applicant's own admissions:

a. The applicant acted in a deliberate and premeditated manner when he attached a bottle opener to his penis. This occurred in a public place on a number of occasions over a period of time to a group of people including civilian females;

b. The applicant paid no regard that his conduct may be witnessed by other restaurant patrons;

c. The applicant's conduct had the potential to cause offence to those who were in a position to witness the impugned conduct;

d. Objectively, the applicant's conduct was offensive;

e. The applicant's behaviour had a divisive effect on the group, with some of the officers being forced to move or stay outside as a result of the applicant's offensive conduct;

f. The applicant held the rank of Sergeant and was one of the officers who was responsible for the 14 junior officers who attended the Christmas party. Junior officers are entitled to expect senior officers to act as role models (the applicant himself conceded this).

Character Evidence

7. The character evidence presented on behalf of the applicant was of little, if any, utility in determining whether the applicant's misconduct warranted termination of employment in circumstances where the essential facts constituting the misconduct were not in issue.

8. It was clear, on the face of the Order, that the Commissioner stated he took into account the applicant's response and by inference the material attached to it. There is no authority supporting a decision to terminate being rendered harsh because there has not been a detailed dissection of character evidence given. The Commissioner did not ignore the character references, instead he has focussed on the impugned conduct of the applicant warranting dismissal.

9. The misconduct in this case was sufficient to support removal from the Police Force, despite the evidence of the referees of character and achievement: Becke v Commissioner of Police (No 4) [2010] NSWIRComm 74.

10. There is a limit to the weight 'good character and 'high achievement' may carry in review proceedings. They may be overcome by the severity of the misconduct. Further, the evidence given by other police officers as to an applicant should be treated with care, because the Police Act recognises the Commissioner as having the ultimate responsibility to "maintain standards".

Gravity of the Offence

11. The impugned conduct that occurred at the restaurant followed similar conduct in 2005 at the Wanaaring Hotel for which the applicant received counselling. This conduct was well below the standard of conduct that the community and the Commissioner was entitled to expect. It was in the public interest that the Commissioner exercised his right to determine that removal from the Police Force was warranted.

12. The impugned conduct was premeditated and deliberate. It was not a private joke among friends at a private function; it was misconduct in a public place by a senior officer in front of junior officers. The applicant exposed his penis on a number of occasions to a group of people, including civilian females. He was unable to say with certainty who was present and who was not. There were two to four unidentified people there at any particular time when he exposed his penis. It simply cannot be seriously put that the impugned conduct did not have the potential to cause serious offence. His conduct certainly had the potential to cause offence to those who were in a position to witness it, and by any objective standard, the conduct was highly likely to be offensive (especially to females who were present) and it was divisive. This is the reason why this type of conduct is an offence provided under s 5 of the Summary Offences Act.

13. The material in support of the applicant needs to be balanced against the proven or established impugned conduct in which the applicant engaged. The impugned conduct was so serious that it outweighed the factors in favour of the applicant. The Commissioner has taken a very grave view about this particular type of conduct and should not be criticised for taking such a view, unless it could be demonstrated (and it was not) that he has applied this standard in some capricious or plainly unreasonable way.

14. In his ROI, the applicant stated that his first occasion of showing his piercing was fun but it became "unstuck" because an officer from Grafton found out about his behaviour at the Christmas party and reported it. Under cross-examination there was a continuing resistance to accept the proposition that the impugned conduct falls well short of the standards that the Commissioner is entitled to expect. The applicant's mindset (although, he conceded his behaviour was unacceptable and inappropriate) seems to be that what he did was "not that wrong". He focused on the unfairness of being reported by others who may have ulterior motives and failed to understand that what he did was entirely unacceptable behaviour both at the Christmas party and Wanaaring. This is a concern and should be taken into account when considering the appropriate outcome and, therefore, reinstatement of the applicant would be impracticable.

Impracticability

15. It is not practicable to reinstate because the applicant has shown a propensity towards "a certain form of conduct", which is entirely unacceptable. The applicant can see nothing inherently wrong in what he has done. He considered the conduct "a bit of fun" rather than offensive. If harshness was found, the Commissioner may consider monetary compensation.

Remedy

16. The respondent submitted that s 89 of the IR Act applied to these proceedings (save as to sub s (7)), if harshness was found, but s 89(1) did not empower the Commission to reinstate the applicant at a lower rank or increment because that would not be reinstatement to a former position.

17. The respondent submitted s 89(2) does empower the Commission, in an appropriate case, to order re-employment to another available position. An example of the exercise of such power is NSW Attorney General's Department v Miller [2007] NSWIRComm 33. However, it may only be exercised if reinstatement is impracticable. The power has not been exercised in police matters, but s 89(2) does contemplate an order for re-employment at a lower rank. The next rank to Sergeant, in descending order, is Senior Constable.

Sexual Harassment

18. During the course of cross-examination it was suggested that the applicant, by his conduct, engaged in the sexual harassment of junior female officers. That question was objected to but allowed. The proposition was denied. No contention was put in final submissions by the Commissioner that the applicant's conduct constituted sexual harassment and the matter will receive no further attention on that basis. (It might be noted that if such a submission was developed it would require particular attention as to the relevant legislative conditions. No such submission was developed in this case.)

CONSIDERATIONS

HARSHNESS GROUND

'The Reasons'

267 The first matter which should receive attention is the Reasons for the Commissioner's decision to remove the applicant: Newton v New South Wales Police Service (1999) 87 IR 66 at 75; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 at [49].

268 The assessment of the adequacy of the Reasons may have two limbs - first, a consideration of the substance of the Reasons (in terms of the adequacy of findings made or conclusions reached), and, secondly, a consideration as to whether the Commissioner had proper regard to the matters raised in the applicant's response (thereby providing an adequate opportunity for the police officer to be heard in the manner contemplated under Div 1B of Pt 9 of the Police Act: Reid-Frost at [36] and [43] (also see Toshack at [49])). Both of these limbs were pressed by the applicant in the present proceedings and are dealt with under their respective headings below.

269 As to the latter consideration, the majority in Reid-Frost stated that the relevant principles regarding procedural issues in review proceedings under the Police Act are as follows (at [6]):

The steps taken or not taken by the Commissioner prior to the removal of a police officer under s 181D (including the procedural steps required under s 181D(3) and (4)) are matters which are relevant to and significant in the assessment of an application made under s 181E of the Act and, in particular, as to whether a finding should be made that the removal was harsh, unjust or unreasonable pursuant to Div 1C of Pt 9 of the Act

(These principles were elaborated upon in para [11] of that same decision but require no further discussion here.)

270 The adequacy of Reasons given by the Commissioner is, in this context, a matter relevant to the consideration of whether the removal of an officer is, inter alia, harsh (Reid-Frost at [38] and [40]). Indeed, the statutory scheme for reviews under Div 1B of Pt 9 of the Police Act makes those reasons "the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to the review": Reid-Frost at [36].

271 Before turning to that consideration of the Reasons, I note that the structure of this decision is such that the following Considerations are based and rely upon, without repetition, elaboration or discussion, except where appropriate, earlier findings of fact (and conclusions deriving from these findings). In other words, the earlier findings of fact and accompanying considerations should, in accordance with ordinary principles, be read co-extensively with these Considerations.

Failure to Consider Matters Raised in the Applicant's Response to the Commissioner

272 The nature of the requirements reposing in the Commissioner to 'consider' the response of an officer to a Notice pursuant to s 181D(3)(c) was discussed in the following passages from the majority decision in Reid-Frost (at [31] and [32]):

31 As to the requirements of s 181D(1)(c), we would again adopt the formulation of Boland J in Hosemans (No 3) wherein his Honour stated (at [161]):

In that consideration he must obtain an understanding of the facts and circumstances set out in the submissions, and of the contentions they urge based on those facts and circumstances (Tickner v Chapman at 476-477 per Burchett J). The Commissioner's duty under s 181D(3)(c) is a personal one unless there is a delegation of the function under s 31 of the Police Act.

32 However, we would also adopt, as being relevant to a consideration as to whether or not the Commissioner has adhered to the requirements of s181D(1)(c), the discussion by the New South Wales Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58] ('Anderson') as to the proper approach to statutory requirements imposed on a decision maker to 'consider'. Anderson concerned a judicial review, but the following observations of Tobias JA, (with whom Spigelman CJ & Macfarlan JA agreed) are applicable to the consideration of the question raised in this matter:

Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, we believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, ‘consider’ and which, as the Full Federal Court observed in Anthonypillai, invoke “language of indefinite and subjective application”.

273 Those principles also govern the resolution of questions arising in review proceedings as to whether the Commissioner adequately had regard to a submission made by an applicant in his response to a Notice. That assessment is to be made, essentially, by an evaluation of the actual Reasons for Removal supplied by the Commissioner (in order to assess whether there were any deficiencies in the steps taken by him). The majority in Reid-Frost commented, in this respect (at [36] and [37]), as follows:

36 We are not here engaged in judicial review or findings as to the validity of an Act, per se, but, as we have noted, the ultimate question concerns whether the procedure adopted contributed to the removal being unfair. More significantly, as we will soon develop, the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light.

37 We would finally observe under this heading that the Commissioner may be taken as reaching his decision along a continuum extending to those assessments giving rise to and found in the Notice. This points to the danger of applying a test based on time in assessing whether the Commissioner had adequately considered a submission received from a police officer.

274 I agree with Mr Murphy that the Commissioner is not required to analyse and dissect each and every matter raised by an applicant in any submission forwarded in response to a Notice issued under s 181D(3)(a). Nor, for that matter, is it consistent with the legislative scheme that reasons given by the Commissioner be approached as if requiring something akin (in the nature and standard required) to judicial reasons.

275 It is, however, necessary for the Commissioner to give consideration in his Reasons for Removal to issues of substance which are raised by the applicant so far as they have the real potential to bear upon whether or not the Commissioner should or should not maintain confidence in that officer. That approach is necessary to afford fairness to the police officer, the subject of a Notice, and will assist in proper administration of the review process undertaken by the Commission. The failure to do so (which constitutes a deficiency in the steps taken by the Commissioner) will be a factor relevant to, but not necessarily determinative of, the review process and any conclusion as to whether the removal of a police officer was harsh, unjust or unreasonable. It is worth repetition that the legislature has attached particular significance in the scheme for the removal of police officers under Div 1B of Pt 9 of the Police Act, to the reasons given by the Commissioner (per s 181F(1)(a) and, by extension, s 181D(1)(c)).

276 This case offers, in fact, less prospect for such difficulties because the applicant has consistently eschewed any substantial challenge to the factual premises underlying the findings of misconduct made against him or, indeed, the very conclusion that his actions constituted misconduct. He made, in that respect, relevant admissions at the earliest (or near earliest) opportunity. Nonetheless, the Commissioner failed, in my view, to give adequate consideration to some aspects of the applicant's response which were material to the decision the Commissioner was required to make under s 181D of the Police Act. The reasons for that conclusion appear below.

277 The first complaint raised by the applicant was that the Commissioner failed to consider the character references attached to his response. The Commissioner did not accept this characterisation of his reasons, and submitted that the assurance of a general kind given by him at the outset of his reasons, to the effect that he had given careful consideration to all material presented to him, was sufficient to satisfy the requirements reposing in him to deal with the applicant's response, particularly given his further contention that there was an absence of a requirement to dissect, in the Reasons, each and every element of the applicant's response (including, in this case, the character references which were attached).

278 Strictly speaking, the applicant did not 'urge' (see Reid-Frost at [36]) upon the Commissioner, in his response, that a particular conclusion should be drawn from the character references, although he did list the referees and their rank. However, in my view, when seen in the context of the whole response given by the applicant, the references must be understood as constituting part of the applicant's claim in mitigation or prayer for leniency presented in the light of his admitted misconduct. This much is reflected in the paragraph of the applicant's response immediately preceding the paragraph of his submission annexing the character references. It is also reflected in the arguments he otherwise develops in the response in which he petitions the Commissioner not to impose the "ultimate sanction" because of his commitment to his work as a police officer and to the NSW Police Force. The applicant also relied upon a contention that he would make a valuable contribution to the Police Force and the community in the future if he was allowed to resume work.

279 Those contentions of the applicant may, of themselves, have received greater attention in the Commissioner's decision, at least by an express weighing of them against the misconduct engaged in by the applicant for the purposes of assessing whether the officer should be removed for lack of confidence. However, the attack brought by the applicant focussed on the absence of a proper consideration of the character references and I will devote my attention to that issue.

280 The significance of references, in the context of a submission by an applicant which relies upon notions of past good service, mitigation or leniency will, no doubt, vary from case to case. There may be cases where the nature of the applicant's contentions and/or character references indicate that none, or only passing attention, needs to be given to the character references. This is not, however, such a case. The references were of such a character, by virtue of the combined effect of their content (in that they not only spoke of the excellence of the applicant's work but the desirability of maintaining his service with the NSW Police Force, both in the interests of that Force and the community) and authorship (given the high standing of the referees in terms of rank, seniority and proximity to the applicant), as to require them to be given, in my view, particular recognition and attention in the evaluation process undertaken by the Commissioner in order to properly conclude whether he retained confidence in the applicant (see McCabe at 373). This is particularly so given the nature of the case advanced by the applicant.

281 In circumstances where the Commissioner's evaluative process should be assessed on the face of the reasons given by him, a glib assurance by the Commissioner that he had 'carefully' considered all materials or that he had "taken into consideration all of the circumstances" or had "taken into account the applicant's written submission", without more, in these circumstances, does not permit a conclusion that the Commissioner had properly considered or taken into account this aspect of the applicant's response. This is particularly so where the Reasons do not descend to any discussion of the applicant's record of service or contribution to the Police Force (other than a reference to the applicant's disregard for prior warnings or counselling). The references spoke, with some real potency, in support of the applicant's pleas for leniency (or contentions calling for a moderation in the assessment of his admitted misconduct) and in favour of a finding that the applicant had provided good service in the Police Force. The references should, therefore, have been the subject of an express and particular evaluation by the Commissioner as part of the consideration of those submissions. This is not to suggest that the outcome of that assessment could only point in one direction, but that some particular recognition and evaluation of the references needed to be undertaken in conjunction with an assessment of the applicant's misconduct in order to properly evaluate what was, in fact, a centrepiece of the applicant's case to the Commissioner.

282 The Commission is not satisfied, therefore, that the Commissioner adequately took into account the character references relied upon by the applicant as part of his case. As I will later find, this is not a case where such a finding may be determinative of the application, but, rather, it is a relevant consideration in assessing the merits of the review.

283 The contribution of alcohol to the applicant's conduct and his rehabilitation from alcohol problems were also raised in this context, albeit in a relatively brief submission (a submission as to the contribution of alcohol was more substantially developed by the applicant in relation to merit questions). In this respect, the Reasons repeat, as a conclusion, the grounds appearing in the Notice (removing the words "For completeness" which had appeared in the Notice). The Reasons, thereby, recognise that the applicant was seeking "ongoing guidance to manage [his] alcohol consumption", but maintained that alcohol consumption was not a mitigating or excusing factor because the evidence suggested that the applicant was not so intoxicated as to have lost "control" over his actions on the evening in question. The Reasons do not acknowledge or discuss the detailed submission made by the applicant as to alcohol consumption or abuse supported, as it was, by the report of Ms McCartney.

284 The applicant was careful to not describe, in his submissions, his use of alcohol as an "excuse" but, rather, contended it was an explanation (by which I understood him to mean he did not suggest his alcohol consumption wholly justified his conduct). In his response, the applicant specifically mentioned his alcohol problem, the causes of it and his rehabilitation with professional help. The report by Ms McCartney gives a detailed exposition as to the contribution of alcohol to the applicant's behaviour, as I have earlier discussed.

285 The Commissioner may be forgiven for having some apprehension about the extent of reliance placed on alcohol factors in many review matters brought under the Police Act, but the combination of the applicant's detailed account of his alcohol problems, which were operative on the evening in question, when buttressed with the report of Ms McCartney, required specific recognition and evaluation in the reasoning process. This is not adequately dealt with in the Reasons. If the Commissioner's repetition of the Notice is to be treated as a consideration of this issue, then the mere repetition of the assessment made in the Notice as to the relationship between alcohol and the applicant's conduct and an acknowledgement that he was seeking ongoing guidance gives mere advertence or 'lip service', in the sense referred to in Anderson v Director General of the Department of Environment and Climate Change & Anor (2008) NSWCA 337 at [58] (see Reid-Frost [32]), to the range of considerations raised by the applicant (and his psychologist). However, given that the applicant's reliance on this matter tended to be focussed on broader merit questions arising in the application, I will defer further consideration of this matter in conformity with that approach.

286 One final matter requires attention in this respect. The Reasons persist with a statement, found in the Notice, that it "appears" prior to the Christmas party "a message from the Commander, Professional Standards was sent to all Police regarding the behaviour of off duty Police Officers during the Christmas and New Year Period". The Commissioner also stated that he was "very concerned" that the applicant engaged in the impugned conduct in the face of that "specific memorandum" issued prior to the party, which highlighted the responsibilities and standards of behaviour (including off duty behaviour) expected from officers during the festive season. The Commissioner also stated that the applicant had appeared "to have blatantly disregarded" the warning. None of this gave any recognition of the applicant's submission that he did not receive the document in question and had never received a document of that kind. Unsurprisingly, the issue raised by the applicant, in that respect, remained unresolved in the Reasons.

287 Ms Lowson did not submit that any of these failures, of themselves, would warrant a determination of the merits of the applicant's application for review. I agree with that approach, as I do not consider any of the matters to which I have referred would warrant that outcome. There is, in this case, an admitted act of misconduct, accompanied by a relevant prior incident of misbehaviour by the applicant (and counselling regarding same) which, in my view, obviates against any determination of the application for review based upon procedural failures in or related to the Reasons alone. These factors are properly considered as part of the overall consideration of the merits of the review application and in the light of a consideration of the substance of the Reasons, the discussion of which is commenced below.

Challenge to Substance of Commissioner's Reasons

288 The applicant essentially raised two issues in this respect. First, it was suggested that the Commissioner placed inappropriate emphasis in the Reasons on parts of the evidence which were contrary to the applicant's interests or were misleading. Secondly, there was a particular challenge to the Commissioner's conclusion regarding the Wanaaring incident.

289 As to the latter matter, I have previously concluded that the Commissioner proceeded upon an incorrect factual foundation as to the Wanaaring incident (which was based on the material put before him). The Commissioner's Reasons also refer to the applicant receiving "a warning" regarding this incident which does not strictly accord with the manner in which the incident was dealt with by the Police Force. Nonetheless, the Commissioner was entitled to, as he did, rely upon this earlier incident as being a factor relevant to weighing the seriousness of the applicant's misconduct (albeit based on a true account of that incident and its consequences), and ultimately whether he had confidence in the applicant.

290 As to the Commissioner's evaluation of the materials before him, the applicant particularly relied upon two matters. First, the applicant criticised the Commissioner's reliance on SC Hardwick's account of SC Pipes' reaction to the impugned conduct. Secondly, it was submitted that the Commissioner placed an improper emphasis, in his summary of "evidence", on matters adverse to the applicant.

291 As to the reliance on the account given by SC Hardwick, I do not consider that the Commissioner's reasoning can be successfully challenged. The Reasons record SC Pipes' account (as given in her statement). The Commissioner did not reconcile the respective accounts, but that was unnecessary (on his approach) because he did not ultimately find that any particular named person was offended, as such, by the impugned conduct. In other words, he did not adopt, in the Reasons, SC Hardwick's version of that event. Rather, after accepting that a number of people found the conduct amusing, the Commissioner concluded that the applicant's conduct was, nonetheless, "highly likely to cause offence". He supported that conclusion, in part, upon the basis that a number of persons deliberately moved or stayed away "because they did not want to see your trick". As the Commissioner was not here referring to members of the public, other than attendees of the party, then, consistently with my earlier conclusions (and those that I will come to shortly), I consider this approach, so far as it was intended to deal with the 'risk' of exposure to the impugned conduct, was reasonably open to the Commissioner on the materials before him (putting aside for present purposes questions concerning the degree of 'likelihood' that the conduct may have been observed).

292 A second complaint made by the applicant was that the Commissioner showed insignificant recognition that the patrons of the restaurant, other than the members of the party, had left the restaurant before the applicant undertook the impugned conduct. It is true that the Commissioner recorded 'evidence' that there was a large number of patrons present on the evening, without acknowledging that some of the very statements he relied upon in that respect also made it clear that members of the public (other than the party attendees) had left by the time the impugned conduct occurred. It is unclear how much reliance the Commissioner places upon the fact that members of the public were present at the time of the impugned conduct in reaching his ultimate conclusion. The Commissioner does refer to the conduct occurring when there were "civilians" present but that observation does not warrant a conclusion that the Commissioner formed his opinion upon the basis that members of the public were present (other than attendees of the party). However, the Commissioner also states that "the exposure...occurred in a public place, in close proximity to other members of the public". That statement would tend to suggest that the Commissioner did contemplate that members of the public were present when the impugned conduct was undertaken but his comments are attended with some ambiguity. With a view to not reading the Reasons with a 'fine tooth comb', I do not propose to treat this finding by the Commissioner as constituting a determination that other patrons of the restaurant (other than the party attendees) were present and potentially exposed to the impugned conduct. What is clear, however, is that, during the course of these proceedings, the Commissioner did prosecute a case that members of the public (other than attendees of the party) were potentially exposed to the conduct. I have rejected that contention, and will consider the merits of this application upon the factual premise that other patrons of the restaurant (other than the party attendees) had departed before the applicant undertook the impugned conduct.

293 The balance of my consideration of the Reasons will be undertaken as part of the following discussion of the parties' cases (which shall form part of a 'fresh and independent review').

The Respective Cases of the Parties

294 Putting aside, momentarily, public interest considerations, s 181F(1) imposes a statutory obligation on the Commission to consider the two further matters specified in s 181F(1)(b) and (c) in undertaking a review. These two arms, which concern the respective cases of the parties, appear sequentially in the provisions of s 181F(1). However, the necessity to consider them in that way will vary, depending upon the nature of the issues raised in a particular matter and the manner in which the parties have conducted their cases.

295 In this case, it is more appropriate to deal with the respective cases concurrently. There are two reasons for that approach. First, there is no issue that the applicant's actions of 11 December 2008 constituted misconduct. Secondly, the issues were joined in the proceedings by the parties debating the issue of harshness via a series of largely common headings ranging from the seriousness of the misconduct (about which various factors were raised) to the public interest and mitigating circumstances. This decision will essentially follow that course.

Seriousness of the Misconduct

296 My findings of fact as to the conduct of the applicant on 11 December 2008 appear in paras [67] to [209] of this decision and are summarised in para [210]. When weighed against the respective submissions of the parties (which were earlier summarised), the seriousness of the applicant's misconduct is properly understood in the light of the following factors which are, in sequence, those adding to the gravity of the misconduct and those which mitigate or ameliorate:

(a) Whilst the conduct was undertaken at a social occasion, it was not, as Mr Murphy submitted, "a private joke amongst friends at a private function". It was a work function undertaken in a public place. This offered the officer no immunity from the assessment of his conduct under the various statements of law, standards, responsibilities and ethics which, for the most part, the Commissioner correctly and, appropriately, alluded to in his reasons. The Commissioner referred to s 7 of the Police Act, Reg 9(1) of the Police Regulation 2008 and points (1) and (4) of the Police Code of Conduct and Ethics. Although there are questions as to the degree of encroachment upon these standards in this case, these norms were, nonetheless, infringed by the applicant's misconduct. Further, the Commission should evaluate the conduct of police officers having regard to the special character of their employment and the need for discipline and high repute: (see the minority judgment of Kirby J in Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 at [113]).

(b) It should, however, be noted that the Commissioner also referred to point (5) of the Code which related to a failure to comply with a lawful and reasonable direction. He did not explain precisely what this reference was alluding to, but if the reference concerned a failure by the applicant to adhere to the written advice on alcohol use and off duty activities from the Commander of Professional Standards (referred to in the Reasons), it cannot be accepted. There is no evidence to refute the applicant's contention that he did not receive the message. Nor is there evidence, as Ms Lowson put it, as to the date of its issue. This is not to suggest that the applicant should not have been mindful, in any event, of the sorts of matters raised in it, but there does not seem to be any basis to conclude that there was a failure to comply with a warning or direction in that respect. As to the lawfulness of the conduct raised by reference to point (6) of the Code, it appears that, in the absence of charges being laid against the applicant, the most that may be said of that matter is that the applicant may have, in other circumstances, attracted attention under the Summary Offences Act (s 5) and that the statute offers some guide, in these proceedings as to community views about what may constitute offensive behaviour. Further, no reliance was placed upon the Anti-Discrimination Act 1977 by the Commissioner. As previously observed, in the absence of a submission specifically identifying how that legislation may have operated in the circumstances of the applicant's conduct on 11 December 2008 (and there is no clear guiding light, in that respect), I propose to take that matter no further in this decision.

(c) The impugned conduct was such that it had, when viewed objectively and as submitted by the Commissioner, the potential to cause offence. This conclusion is valid, irrespective of the gender of the recipients.

(d) The fact that the applicant held a senior rank and was responsible for a number of junior officers who attended the Christmas party, in my view, is a factor which adds to the seriousness of the misconduct. I agree with the Reasons in that respect. Further, this factor serves to demonstrate there were some elements of incompatibility between the applicant's conduct and his duties.

(e) My earlier findings must result in the acceptance of the Commissioner's contention (and Reasons) that there was a risk of other persons who attended the party witnessing the conduct and that the conduct did have a divisive effect upon the party. My summary of findings as to the reaction of persons who avoided witnessing the impugned conduct and the nature of their reactions is set out in sub para 8 of para [210] and I do not repeat them here.

(f) These observations, however, need to be viewed in a particular context which I will set out below.

(g) The circumstances under which the applicant undertook the conduct - late on a Thursday evening at the close of a work Christmas function which was accompanied by the consumption of alcohol - tends to colour, but not excuse, the conduct. So, too, does the absence of other patrons in the restaurant at that time.

(h) The number of occasions that the applicant undertook the conduct on a single evening does not result in aggravation of the misconduct, particularly when each occurrence was of a very short duration. The gravity of the misconduct comes from the nature of the conduct itself: the exposure of his penis in the circumstances described in this decision. However, the fact that one of the episodes (the second occurrence) actually involved opening a bottle with the bottle opener attached to the applicant's penis (irrespective of whether the penis could be seen or not) does tend to elevate the seriousness of the misconduct.

(i) I accept the submission of the Commissioner (and his reasons in this regard) that the impugned conduct occurred as a result of a deliberate step being taken by the applicant to prepare for the 'party trick' but only in the sense that the applicant had clearly decided, after his discussion with other guests, to carry out the 'party trick'. To that extent, the conduct was not strictly a 'spur of the moment' act and this is indicated by the amount of time taken to prepare for the 'party trick'. However, to suggest, as Mr Murphy did, that the conduct was "premeditated" is an exaggeration not reflecting the level of contemplation and reasoning engaged in by the applicant on the evening. His actions plainly emerged from a discussion which occurred late in the evening, albeit at the applicant's instigation, and, as I have found, were partially but significantly influenced by the effects of alcohol. There is certainly a link between the excitement and exuberance of the Christmas party, the applicant's involvement with his companions, and the actions he then undertook. Whilst the applicant's conduct does involve elements of self-determination and gratification, at least to the extent of providing entertainment for friends and colleagues, this case bears none of the hallmarks of Morgan v Commissioner of Police [2010] NSWIRComm 67 (at [6]) (and see the decision of Marks J, sustained on appeal, in Morgan v Commissioner of Police [2009] NSWIRComm 184) where the police officer's conduct was described as involving a deliberate and knowing breach of applicable rules and standards of fundamental importance (and, for that matter, issues of integrity involving unlawfulness).

(j) Contrary to the Reasons of the Commissioner, I do consider that it is relevant that the impugned conduct was witnessed by a confined group of persons and that the persons in that group did not take offence at the behaviour. (That conclusion must, however, be qualified by my earlier finding that there was a risk of exposure to the impugned conduct.)

(k) A related ameliorating consideration is that the applicant was involved in the entertainment of colleagues and their partners who were obviously amused by the conduct and in some respects encouraged it. I do not accept that the applicant paid little or no regard to who might be affected by the conduct, and I reject the submission put by the Commissioner that the applicant paid no regard to the fact that his conduct may be witnessed by other restaurant patrons, as I have found that none were present at the time the impugned conduct occurred on the evening (and the applicant had made observations to that effect).

(l) I do not accept that the failure of other officers to intervene to stop the applicant is a material consideration, particularly given his seniority, but I have accepted that he engaged in the conduct in circumstances where those immediately around him made for a comfortable environment in which to misbehave.

Prior Misconduct

297 The Commissioner placed no reliance upon the 1997 and 1998 incidents, and given those matters were said to be "successfully conciliated", they need attract no further consideration in this decision.

298 I do not consider Ms Lowson was correct to submit that the Commander Warnings Notice of 2002 was not directly relied upon by the Commissioner to justify the applicant's removal. The Commissioner took into account that Notice in the Reasons and indicated that it should have made the applicant aware that "any further issues" may result in reviewable action or his removal from NSW Police Force.

299 I do, however, accept Ms Lowson's submission that the 2002 Notice and the matters to which it relates should attract little weight in the determination of this application. There are three reasons for that conclusion. First, in his submission to the Commissioner, the applicant explained, for the first time, the circumstances giving rise to the Warning Notice. The Commissioner failed to deal with that submission in his Reasons. Secondly, the explanation provided by the applicant moderates the findings giving rise to the Warning Notice. The explanation was not challenged in these proceedings. Thirdly, the issues giving rise to the Warning Notice occurred approximately ten years ago, are substantially unrelated, in their character, to the present misconduct and attracted little attention in the Commissioner's submissions in these proceedings.

300 My findings in relation to the Wanaaring incident in 2005 are found in paras [218] to [238] of this decision. The incident is plainly relevant to the determination of this review, as the applicant had obtained prior advice and counselling as to the unacceptable nature of that conduct, which he then repeated in a more serious form by the impugned conduct. As the Commissioner submitted, this should have made the applicant aware that he should not have engaged in the conduct he did and resulted in him not being "a first time offender".

301 However, Mr Murphy's submission, to the effect that the applicant had already had a "chance", does raise a different and more complex issue as to the severity of the step taken by the Commissioner on this occasion when a comparison is drawn with the Wanaaring incident. The 2006 incident did not rate as sufficiently serious to be treated as a non-reviewable action under s 173 of the Police Act. While the impugned conduct is obviously more serious and occurred after the benefit of earlier counselling, it is somewhat difficult to reconcile the two approaches as a matter of coherent discipline.

302 Ms Lowson submitted that the two further incidents of the applicant exposing himself (identified under cross-examination) had occurred before the investigation of the Wanaaring incident and played no part in any further warnings or actions by the Commissioner. I agree with her submission that the matters should receive little weight in these proceedings on that basis (in addition to, that is, the implications arising already from the Wanaaring incident). Mr Murphy did submit that the further incident tended to suggest that the applicant had shown a propensity to engage in this conduct. That much may be accepted, but I do not consider that it establishes a basis to argue that the conduct would be ongoing beyond 2008, given the evidence, that I will discuss below, as to the applicant's rehabilitation, remorse and the distress and hardship he experienced after December 2008. The further incidents also give a contra-indication to the Commissioner's case. They were undertaken by the applicant without any form of reprimand or review by more senior officers (now of considerably higher rank) who had knowledge of (or encouraged) the conduct. It may be expected that, in the ordinary course, some stronger rebuke earlier in time (including as to the Wanaaring incident) might have assisted in curbing the applicant's enthusiasm to engage in this form of conduct, particularly when affected by alcohol and encouraged by other officers.

Applicant's Attitude to Misconduct

303 Earlier in this decision I referred to the duality of the applicant's position, in this respect, and indicated that my opinion as to whether he demonstrated remorse and contrition would be considered after the analysis of the contribution of alcohol.

304 The duality of the applicant's position is partly explicable on the basis that he understandably wished to advance factors (genuine in nature) which may have mitigated his admitted misconduct. It must be also accepted, however, that part of the duality of his position is that he had difficulty conceptualising his behaviour as having elements other than amusement or entertainment (and, therefore, lacking offence). On balance, however, I consider that a finding should be made that the applicant does accept his conduct was inappropriate and wrong, and that he is genuinely remorseful and contrite.

305 I consider that the evidence demonstrates that, albeit incrementally, the applicant has come to a full appreciation of his misconduct and its inappropriateness. I consider that he has shown remorse and contrition, not only because of his expressions to that effect, as earlier recorded in this decision (which reflect, overall, the maturing of his understanding of his misconduct and responsibilities), and his changed attitudes (and recognition of wrongdoing and immaturity), as conveyed to and reported upon by Ms McCartney, but by his actions. First, even though undertaken with the knowledge that a complaint had been made, the applicant communicated with Chief Inspector Breton, made frank admissions and assisted in his investigation in a way that was consistent with a recognition of wrongdoing (he stated that he "readily admitted [his] poor behaviour" and approached Chief Inspector Breton and "told him of [his] conduct"). The early response and the disclosure tend to point against a conclusion that the applicant had merely attempted to obtain a strategic advantage in this approach (in contrast to any number of other cases in this area which have been accompanied by denials leading to charges of a lack of integrity). Secondly, he has removed the piercing and has undertaken not to engage in such activity in the future. Thirdly, his active and successful involvement in rectification of his alcohol problems and the accompanying acceptance of the damage caused by alcohol consumption to his work and private life indicate a genuine desire for and appreciation of the need for change. This is again a factor that points to a genuine appreciation of the inappropriateness of his behaviour and the need for its rectification.

306 Thus, I consider that, even though some of the statements made by the applicant indicated that he had maintained a view as to the limits of his misconduct on the evening in question, those statements merely reflect a perspective as to what he had apprehended he was doing on that evening (or what he had intended to do) and do not denigrate from his overall appreciation of the inappropriateness of his conduct and the genuineness of his contrition, when his statements and actions are considered as a whole. In all the circumstances, I am prepared to treat the applicant as being genuinely remorseful and contrite about his behaviour of 11 December 2008 and his failure to take advice from previous counselling given in 2006, and settled in his view that his conduct must now be mature and responsible in all facets of his life.

Commissioner's Reaction to the Misconduct

307 I do not accept that Ms Lowson's submissions, in this respect, constitute factors which should be taken into account in the present context.

Conclusion Re Gravity of Misconduct


308 The question of whether the removal of the applicant was harsh involves a balancing of the considerations which are earlier described under the heading 'Harshness : Relevant Principles'. That will also involve questions of mitigation and public interest considerations to which I will turn below. However, before doing so, I propose to briefly address the submissions put by the parties in relation to the seriousness of the misconduct itself. The weighing of the factors discussed thus far indicates that Mr Murphy was correct in submitting that this matter does not fall within the worst class of cases of this kind coming before the Commission. It is well below that degree of seriousness, even taking account of the relevant aspects of his past misconduct, namely, the Wanaaring incident (which I have previously evaluated as to its significance). On the other hand, and putting aside for present purposes mitigating considerations, the conduct engaged in by the applicant could not be described, as Ms Lowson put it, as lying in the lower end of the scale of seriousness. Beyond that, I do not consider it is helpful for the Commission to engage in a process of specifying where the misconduct lies in a theoretical range of the gravity of misconduct unguided by judicial authority to that effect in this area of jurisprudence. Rather, I will consider that matter in the final mix of considerations as to whether there was harshness in the removal of the applicant.

Contribution of Alcohol

309 I have earlier accepted, under the relevant heading of this decision, alcohol was a contributing factor to the applicant's behaviour. It was found that the applicant's alcohol consumption on the evening in question, when seen in the light of an alcohol problem, was a mitigating factor, but not one that could wholly justify or excuse his behaviour. In this case, alcohol consumption involved more than an explanation of conduct based on binge drinking one evening and related to a more significant alcohol problem. I have also found that, in so far as the applicant's behaviour was driven by alcohol consumption, there had been rehabilitation with good prospects of a lasting modification to his behaviour.

310 This was a matter which did not receive sufficient recognition in the Reasons but is a matter which has required attention as part of this fresh and independent review.

Character Evidence

311 In Toshack, the Full Bench reviewed the significance of character evidence in proceedings brought under s 181E of the Police Act and came to the following conclusion (at [69]):

69 Character evidence of police officers that may be led in support of an officer who has been removed under s 181D of the Police Act will undoubtedly be relevant to the question of what relief may be ordered where the removal is found to be harsh, unreasonable or unjust. It may also be relevant, depending upon the circumstances of a particular case, to the question of whether the removal was harsh, unreasonable or unjust. Where a person's integrity is being assessed it will involve questions about his or her character. The Commissioner of Police may take one view about a person's integrity but there is no reason why the Commission, in undertaking the type of review that is required under Division 1C of Part 9 of the Police Act, may not have regard to evidence indicating a contrary or divergent view to that of the Commissioner in deciding whether the removal was harsh, unreasonable or unjust.

(That determination rejected a contention advanced in those proceedings that character evidence was confined to the question of 'practicability' of reinstatement and was not relevant to the question of whether the removal order was harsh: Toshack at [64].)

312 The Full Bench, ultimately, found that "whether character evidence is a material consideration in a consideration of whether the dismissal was harsh, unjust or unreasonable will depend on the facts of each case": Toshack at [73]. In that case, character evidence was found to be of lesser significance, principally because the officer in question had been found to engage in very serious misconduct involving integrity issues (he had, in fact, told lies that misled a court). The character evidence in that case had come from senior officers whom the applicant had encountered after the events that led to his removal and, hence, in a case involving integrity, there were understandable doubts as to the weight which should have been given to that evidence. A reminder was also given that the decision of Watson J in Metropolitan Meat Industry Board concerned "past good conduct" as a relevant mitigating factor, as opposed to subsequently acquired knowledge of good conduct. All in all, it was found that the trial judge placed too much reliance on character evidence.

313 The factors which diminished the significance of character evidence in Toshack do not operate in the present case. The applicant was not removed on the ground of integrity. In any event, integrity did not ultimately feature as an issue in the proceedings. The police officers who gave evidence concerning his character gave that account upon the basis of their experience of the applicant prior to his engaging in the impugned conduct (the minimum past experience being two years). The officers (other than SC Redman) confirmed their opinions by statements tendered in these proceedings, notwithstanding that they had been acquainted with the Reasons. Where the officers gave evidence as to the appropriateness of maintaining the services of the applicant and his value as a police officer, those statements must be taken as indicating that there were good prospects that the applicant would play a valuable role in the Police Force if he were permitted to continue in service, notwithstanding the misconduct referred to in the Reasons, that is, the impugned conduct (see McCabe at 374).

314 The character evidence in these proceedings has, in my view, two implications. First, in relation to the question of harshness, it provides a testament to the applicant's past good conduct and service to the Police Force, given in the clear knowledge that the applicant had engaged in an act of misconduct. These statements also lend support to the notion that the applicant may still play an ongoing, productive role within the Police Force. Secondly, the references are relevant to the question of the practicability of reinstatement or re-employment, with the character evidence offering clear support in favour of a positive finding in that respect.

315 It should be recalled that there is evidence in these proceedings concerning the applicant's history within the Police Service. That evidence showed that the applicant had fourteen years of service with the Police Force at the time of his removal and had harboured a desire to be a police officer from an early age. Even though the Warning Notice, to which I have earlier referred, was issued in 2002, the incidents which gave rise to it occurred in 1999 and 2000. The applicant's record, apart from the blemish in 2006, was a very good one. He provided good service, including in the western areas of New South Wales, and received commendations and promotions. He obtained senior rank and executed senior duties. But for the incident in 2006, I would have accepted Ms Lowson's submission that the applicant's conduct was exemplary. Nonetheless, a very favourable view of his service record must be formed.

Impact on the Applicant

316 I accept the submission advanced by Ms Lowson that the applicant has suffered personally, financially and in his career as a result of his poor judgment. There has been a significant stigma deriving from the events of the evening in question and his removal (fuelled, no doubt, by a media report at the time of the original investigation and subsequent reporting). The consequences for him were quite severe and his prospects for an alternative career must be treated as remote, given the history of his employment following his removal. I consider that the impact upon him is sufficiently severe that this should be a factor taken into account in mitigation.

Section 181F(3) : Public Interest and Interests of Applicant

317 These considerations are relevant to the question of harshness and the remedy. The relevant principles have been earlier discussed. The former question shall be discussed here.

318 I have found the judgment of the Full Bench in Collins (quoting a component of the majority decision in Evans) to be of particular assistance in dealing with this issue in the present case. The relevant aspects of that decision are as follows (at [53]):

53 Her Honour was aware of the requirement to balance the interests of the respondent with those of the public interest under s 181F(3). Her Honour was also aware that maintaining the integrity of the NSW Police Force was one of many factors to be taken into account in the public interest. We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors. This point was clearly made in the Full Bench decision of Commissioner of Police v Evans (2006) 153 IR 144 at [4] - [6]:

....

[6] The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3).

319 Here, there is required a balancing of considerations between the Commissioner's determination, the maintenance of the integrity of the Police Force (by the upholding of appropriate standards, even in off duty situations) and the elimination of conduct which may bring the Police Force into disrepute (such as the impugned conduct), and, the maintenance of the service of a highly trained officer who has the strong support of his colleagues (because of his performance in the Police Force) and who is capable of providing valuable service to the Police Force in the future. This is also a case where the subsequent rehabilitation of the officer has the real potential to eliminate the very conduct (or conduct of that type) which caused the Commissioner to lose confidence. The interests of the applicant are reflected in his desire to rectify or ameliorate the very significant detriment in terms of his finances, career and reputation he has suffered as a consequence of the removal.

320 A further factor is relevant to the public interest. Given the manner in which the community is often vexed by problems associated with alcohol, it is in the public interest, in my view, that encouragement be given to genuine efforts of rehabilitation which have the prospect of a lasting modification of misbehaviour deriving from such infirmities. This approach cannot, of course, be without limits as the seriousness of the misconduct may represent a barrier to such a consideration applying in a particular case of alcohol related behaviour. I do not, however, consider that this is such a case.

Conclusion re Harshness

321 The applicant has demonstrated a marked degree of immaturity of character which has resulted in him engaging in conduct well below that expected of a police officer, particularly one of his rank and service. His behaviour did not adequately conform with the various laws and norms governing police officers (I have referred to these standards in the earlier discussion about the seriousness of the misconduct). The conduct should have received rebuke from the Commissioner, as it did, and it is understandable the conduct would have resulted in sanction. The question here, however, is whether the determination to remove the officer was too harsh a penalty, given a proper weighing of the gravity of the misconduct he engaged in, and having regard to the mitigating circumstances, both of which have been discussed above (this is a brief encapsulation of the principles earlier discussed, without diminishing their full operation).

322 Balancing all of these considerations and giving particular weight to the public interest, I have decided, by a fine margin, that the removal of the applicant was harsh. I consider that the removal of the applicant was too harsh a consequence for the applicant's misconduct, having regard to the degree of seriousness of the applicant's misconduct, as I have described it, and the strong mitigating and other ameliorating circumstances in favour of the applicant, some of which, as I have found, were not given due consideration in the Reasons for Removal.

323 When there is a proper balancing of the factors described in para [297], I do not consider that the misconduct of the applicant is sufficiently serious that, in and of itself, it required an adverse outcome to this application, irrespective of the aforementioned countervailing factors. This conclusion is not diminished because of prior misconduct engaged in by the applicant. The past misconduct, which is principally confined to the Wanaaring incident, must add to the seriousness of the misconduct in the sense that the applicant had previously been counselled against similar conduct. However, the prior misconduct was not so grave that its repetition, by a subsequent act of a similar character (or of a somewhat more significant character in this case), must result in removal under s 181D. In any event, the Police Force's approach to discipline for the past misconduct does tend to indicate that the penalty chosen on this occasion may, by comparison, be too severe.

324 Further, I consider there are a number of significant mitigating or ameliorating factors in favour of the applicant in this matter (which I have earlier discussed) which warrant a conclusion that the removal of the applicant was, in all of the circumstances, harsh. I have incorporated, in those observations, my assessment as to the public interest.

325 I have been particularly influenced, in that respect, by my conclusion as to the applicant's rehabilitation with respect to his alcohol problems and the prospect of a longstanding modification to his behaviour, such that the factors which led to a loss of confidence have been essentially eliminated. To this consideration may be added the confidence of his fellow officers, of senior rank and position, that the applicant will make a valuable contribution to the Police Force in the future; the applicant's genuine appreciation of the inappropriateness of his conduct, for which, on a proper evaluation of his evidence, he has expressed remorse and contrition: Toshack [at 75] and the detriment he has suffered to his finances, career and reputation (which, no doubt, have also contributed to the reappraisal of his behaviour). I do not consider that the public interest considerations arising under s 181F(3) warrant any contrary conclusion when properly assessed and balanced as to their competing elements and the interests of the applicant.

326 I find the removal of the applicant from the Police Force was harsh.

REMEDY


327 The applicant sought reinstatement to his former position at Grafton and accepted that, if the Commission were to take a dim view of his conduct, no order for back pay may be made in his favour.

328 Where a finding of harshness results from review proceedings brought under s 181E of the Police Act, the primary remedy is reinstatement: Burge (at [34]) and Little (at [88]). It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the IR Act may be applied: Casari v South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 (at [72]).

329 Ms Lowson submitted that there was no evidence of impracticability and certainly no evidence that there would be any difficulty for the applicant returning to his former posting. The Commissioner submitted that, given the applicant had a propensity towards a certain form of conduct which was unacceptable, it would be inappropriate to return him to service in the Police Force. In the result, if the Commissioner was inclined to grant a remedy, compensation would be appropriate.

330 It was made abundantly clear in the recent decision of the NSW Court of Appeal in Director General, NSW Department of Health v Industrial Relations Commission of New South Wales (2010) 193 IR 244 (at [19]), that an order for reinstatement under s 89(1) of the IR Act is confined to an order restoring a successful applicant under s 84(1) (in this case read s 181E of the Police Act) to that person's "former position".

331 At the time of the impugned conduct the applicant held the rank of Sergeant and was posted at the Maclean Police Station as a Sector Supervisor. From the time of the issuing of the Notice until his removal from the Police Force, the applicant retained his rank of Sergeant and performed various senior duties ranging from Station Manager to Shift Supervisor at the Grafton Police Station. On any account, then, the order of reinstatement sought by counsel, on behalf of the applicant, must be seen as having the effect of returning the applicant to a senior position in the Police Force at the rank of Sergeant.

332 I accept the applicant's submission that there is no evidence from officers at the Grafton Police Station expressing difficulty with working with the applicant. I would accept that the Police Force is an organisation of such a nature and size as to eliminate inhibiting factors that might affect an order for reinstatement in smaller or differently structured organisations (see the observations of Haylen J, in the minority, in Reid-Frost (at [162]).

333 Having regard to the conclusions reached in this decision, however, I do not consider that it is appropriate to restore the applicant to his former senior position. I do not preclude the possibility that, after the applicant has the opportunity of confirming the effectiveness of his rehabilitation and giving effect to the faith that senior officers have in him, he may regain a more senior position. I do not consider, however, that, consistent with the proper management of the Police Force, the applicant should, at this stage, be returned to a position of seniority of the kind that he held prior to his removal. Whilst he has demonstrated rehabilitation as to his alcohol problem, I have found that this factor does not entirely excuse his conduct, which involved a level of immaturity of character. Hence, I consider it is impracticable to reinstate the applicant to the position and rank of a Sergeant of Police (carrying out senior duties such as Station Manager or Shift Supervisor). Indeed, I consider that one condition of his re-employment (to which I shall return) should be that he is not eligible for promotion for a period of 12 months: Miller at [125].

334 In contrast, I consider that an order for re-employment to the position of Senior Constable is appropriate and practicable.

335 The parties were unable to identify any issue, as to power, that might preclude an order of that kind being made in these proceedings. I concur with that view.

336 The parties accepted that 'Senior Constable' was a position within the meaning of that expression in s 89 of the IR Act. Further, it was accepted that the position, Senior Constable, was "another position" (within the meaning of that expression in s 89(2)) when compared to the former position occupied by the applicant, namely, Sergeant. Whilst there was no elaboration upon those propositions, they are, in my view, correct. Section 10(1) of the Police Act provides that the Commissioner will determine positions within the Police Force which shall be classified and graded (s 10(2)(b)). Police officers receive ranks (s 12(1)) of which, in the present context, 'Sergeant' and 'Constable' are relevant. The Regulations may specify grades within those ranks (s 12(3)). Regulation 5(1) of the Police Regulation 2008 provides grades corresponding to the ranks of Sergeant and Senior Constable. From an industrial perspective, the Crown Employees (Police Officers - 2009) Award, (2009) 369 NSWIG 1233 ('the award') provides for a classification structure corresponding to ranks (and grades). Senior Constable is one such classification, and provides for increments ranging from level 1 to level 6.

337 I do not consider that it is impracticable to re-employ the applicant as a Senior Constable. As I have indicted above, it is practicable, in a general sense, to restore him to a position with the Police Force. The character references speak strongly in favour of that conclusion. The Commissioner did not rely on competence or integrity as grounds for the applicant's removal. In terms of the consideration of "another position" for the purposes of s 89(2), I consider the position of Senior Constable is appropriate as it carries with it a fitting level of responsibility having regard to my findings as to the immaturity of the applicant's conduct on 11 December 2008 and his subsequent rehabilitation and acceptance of responsibility.

338 Further, given the applicant's employment history, including a lengthy period of service as a Senior Constable (and the subsequent occupancy of more senior positions), there is no proper basis to conclude that the applicant is not suitable for the position of Senior Constable. There can be no real issue, in my view, about his capacity to perform the full range of duties of the position of Senior Constable, which is the next rank in descending order to that of Sergeant. To this may be added my earlier observations about his service record.

339 Mr Murphy conceded that, in terms of the position of Senior Constable, it could not be suggested that there was any barrier associated with the availability of a position at Senior Constable rank.

340 Hence, I determine that, for the purpose of s 89(2) of the IR Act, it is not impracticable to re-employ the applicant in another position, namely, the position of Senior Constable with the NSW Police Force. There are positions of Senior Constable available within the Police Force and, in my opinion, the applicant is suitable for that position. Given the primacy to be afforded that remedy of re-employment and my findings as to the appropriateness of that remedy in this case, it should, subject to public interest considerations, be ordered.

341 I do not consider that the restoration of the service of the applicant is contrary to the public interest. The same considerations, as earlier mentioned with respect to the public interest, are relevant here. There is a confident basis for the restoration of the applicant's prior good service with the NSW Police Force without repetition of conduct of the type which has led to these proceedings. Additionally, I consider the integrity of the Police Force is maintained and protected by the public recognition of the applicant's misconduct, the confirmation of the applicable codes or standards for off duty behaviour and the restoration of service at a lower rank with conditions.

342 Accordingly, I will order the re-employment of the applicant to the position of Senior Constable, which order shall be effective 21 days after this decision. I am presently disposed to the applicant receiving the highest incremental step for the classification of Senior Constable in the award, unless there is some impediment to that course having regard to the terms of the award. I will give liberty to make further submissions in that respect.

343 I do not propose to make orders otherwise confining the Commissioner in the applicant's re-employment but would recommend that the Commissioner gives serious consideration to placing the applicant in his previous Command, particularly having regard to his residence and service history.

344 Given my findings as to the applicant's misconduct, I do not consider that any order for back pay should be made pursuant to s 89(3). I do, however, consider that an order for continuity of service should be made, pursuant to s 89(4), commensurate with the applicant's long and ongoing service.

345 The parties did not raise a question as to whether conditions might be imposed under s 89(8) of the IR Act. This was, no doubt, a reflection of their respective standpoints as to the proper conclusion of these proceedings. I do consider, however, three conditions should be imposed commensurate with the nature of the applicant's misconduct and the rectification of his alcohol problem. First, whilst I accept Ms McCartney's report as to ongoing and lasting behavioural change by the applicant, it would be prudent to make provision for the Commissioner to monitor this situation with appropriate controls. Conditions should be imposed to monitor and control the applicant's alcohol practices for a specified period of time. I have in mind conditions of the kind made in Dobbie in orders 2(b), (c), (d) and (e) (see para [70]) without the requirement of order 2(a) or (f) or the making of a deed or undertaking. The conditions should be commensurate with the imposition of an effective programme for monitoring and counselling, as may be appropriate and may include ongoing involvement by the applicant under the NSW Police Employee Assistance Program and a further report, if the Commissioner deems it appropriate, from a suitably qualified psychologist. Secondly, I propose to limit the opportunity for promotion for a specified period of time, namely, 12 months. Thirdly, the conditions should provide that the applicant receive a final written warning as to any future misbehaviour.

346 I have not heard the parties on the appropriate form of orders to give effect to these conditions or as to the incremental level applicable to the applicant's re-employment as a Senior Constable. I shall, therefore, provide an opportunity to the parties to file short minutes of order and/or submissions within the confines of paras [342] and [345] of this decision as to the appropriate form of the orders including conditions pursuant to s 89(8) of the IR Act.

ORDERS AND DIRECTIONS


347 The Commission orders and directs that the parties shall, within 14 days after the delivery of this decision, file draft consent orders conforming with this decision or, in the event of dispute as to the form of the orders, the parties shall file and serve within the same timeframe their respective proposed draft orders with any accompanying written submission as to the contested areas of the proposed orders (provided that such submissions shall be confined to the liberty granted in this decision). This is a strict timetable and the final orders shall be determined in accordance with orders and submissions filed within the time specified. Unless a party seeks an oral hearing (in addition to any written submission filed), the final form of the orders shall be determined by the Commission on the papers. If an oral hearing is required, it will be listed shortly after the expiry of the 14 day period allowed for the filing of orders and/or submissions, but shall not affect the time earlier specified for the operation of orders for the re-employment of the applicant.

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LAST UPDATED:
12 November 2010