Flanagan v Commissioner of Police [2010] NSWIRComm 7 (4 February 2010)

Last Updated: 23 February 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Flanagan v Commissioner of Police [2010] NSWIRComm 7



FILE NUMBER(S):
IRC 1151

HEARING DATE(S):
9 and 18 November 2009

DATE OF JUDGMENT:
4 February 2010

PARTIES:
Michael James Flanagan (Appellant)
Commissioner of Police (Respondent)

CORAM:
Boland J President Walton J Vice-President Staff J


CATCHWORDS: POLICE - Police officer removed by Commissioner of Police - Officer involved in an off duty assault and found to have accessed Computerised Operational Policing System (COPS) without authority - Removal upheld at first instance - APPEAL - Whether police officer provoked by well known local criminal - Whether trial judge erred in finding officer was not provoked - Whether trial judge erred in failing to have regard to provocation as a mitigating factor - Whether access to COPS was unauthorised - Whether trial judge erred in finding police officer continued to access COPS after being interviewed about the unauthorised access - Whether there were mitigating circumstances in connection with unauthorised COPS access - Whether the trial judge erred in finding that had the unauthorised COPS access revealed any useful information, the police officer would have used it in his own interest - Whether the trial judge erred in respect of findings relating to the officer's prospects of rehabilitation - Whether the dismissal was harsh, unreasonable or unjust - Commission required under s 181F(3) of the Police Act 1990 to have regard to both the applicant's interest and the public interest is so that it may, in a judicial sense, weigh the respective interests in the balance, consider all the circumstances, and decide whether the removal of the police officer was harsh, unreasonable or unjust - Penalty of dismissal was harsh and unreasonable - Re-employment ordered.

LEGAL REPRESENTATIVES
Mr A A Hatcher of counsel (Appellant)
Police Association of NSW
Mr P M Kite SC with Mr P M Skinner of counsel (Respondent)
Crown Solicitor's Office

CASES CITED:
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Flanagan v Commissioner of Police [2008] NSWIRComm 138; (2008) 180 IR 85
Flanagan v Commissioner of Police [2009] NSWIRComm 106
Michael James Flanagan v Commissioner of Police [2008] NSWIRComm 11
Morgan and Commissioner of Police [2009] NSWIRComm 184
Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; (1979) 23 ALR 405
Wilson v Department of Education and Training [2000] NSWIRComm 20; (2000) 100 IR 1

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Industrial Relations Act 1996
Police Act 1990


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: BOLAND J, President
WALTON J, Vice-President
STAFF J

Thursday 4 February 2010

Matter No IRC 1151 of 2009

MICHAEL JAMES FLANAGAN v COMMISSIONER OF POLICE

Application by Michael James Flanagan for leave to appeal and appeal against a decision of Justice Kavanagh given on 15 July 2009 in Matter No IRC 1363 of 2007

DECISION OF THE COMMISSION

[2010] NSWIRComm 7

1 Pursuant to s 187 of the Industrial Relations Act 1996, Michael James Flanagan, a former police officer, seeks leave to appeal and, if leave is granted, to appeal from a decision of Kavanagh J. Her Honour had dismissed Mr Flanagan's application under s 181E of the Police Act 1990 ('the Act') for a review of an order made on 16 August 2007 by the Commissioner of Police removing Mr Flanagan from the NSW Police Force: see Flanagan v Commissioner of Police [2009] NSWIRComm 106.

2 The Commissioner’s removal order identified two grounds for removal:

(1) Mr Flanagan’s involvement in an off-duty incident, which occurred on 15 April 2006 at the Wellington Hotel in Wellington. Mr Flanagan was charged with two counts of common assault. He was found by the Local Court to have committed assault, but the charges (after an appeal on penalty to the District Court) were ultimately dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

(2) Mr Flanagan was identified to have made 14 unauthorised accesses to the Computerised Operational Policing System ('COPS') in the period 19 April 2006 to 10 May 2006.

First instance decision

3 Kavanagh J described the assault incident at [28]-[33]:

[28] I accept, therefore, from this history, the applicant could be described as "a well qualified Police Officer with an exemplary record and a record of achievement" when, on Saturday 15 April 2006 (Easter Saturday), he drove, accompanied by his girlfriend, Ms Humphries, from Penrith to Wellington. The applicant had young children who still lived with his ex-wife in the Wellington area. The applicant, accompanied by Ms Humphries, her father and a friend, at about 8.30pm, decided to go to the Wellington Hotel for drinks. The hotel was across the road from Ms Humphries' family home.

[29] Mr Amatto, with his friend and cousin, Wade Hynch, arrived at the Wellington Hotel at approximately 9.30pm-10.00pm. Mr Amatto went into the poker machine room. He saw the applicant and pointed out to Mr Hynch that Mr Flanagan was "a copper. He used to work here". There was then, I accept, a verbal exchange between the off-duty Leading Senior Constable Michael Flanagan and Mr Amatto. The publican, Christopher Thompson, witnessed this exchange to some extent but could not give evidence as to its content. He was of the view the exchange was fiery and the raised voices and tone indicated to him in his hotel a situation that could escalate. However, before the Local Court, Mr Thompson opined it was Mr Flanagan's tone which troubled him. The content of that conversation is contentious. It is arising from the content of that conversation the applicant raises the issue of "provocation".

[30] After the heated exchange, Mr Amatto left the poker machine room and went to the main bar in the Wellington Hotel. Ms Humphries, Mr Flanagan's partner, had gone into the main bar and she asserts there she saw Mr Amatto looking at the CCTV showing Mr Flanagan and at the same time she asserted Mr Amatto was muttering threats. She went back to the poker machine room and persuaded Mr Flanagan to leave the hotel. Mr Amatto was then returning from the main bar with two cans of an alcoholic beverage one in each hand when Mr Flanagan with Ms Humphries left the poker machine area and came across Mr Amatto in the hotel corridor. CCTV footage clearly shows Mr Flanagan started a melee. I concur, from sighting the CCTV footage, this melee was as described by her Honour, Magistrate Walquist on 7 March 2007 (in her decision in the Local Court) (at 81 - 82):

... certainly the video shows very clearly that the first aggressive step is taken by Michael Flanagan towards Martin Amatto and that he takes a step towards him, he puts his elbow out and strikes him, which seems to spin him around and then he grabs hold of him first with one hand, pulls him towards him, and then the other.

...

Certainly viewing the video does not support the accused's account of Martin Amatto stepping into his space. That is not supported at all by the video it is completely the other way round. The accused account of holding, thinking that he held something and that he might stab him, is not supported by his actions in those circumstances. One would have thought that if he was seriously feeling under threat, that he would not have taken the action that he did which was clearly from the video an aggressive action. He moved towards him, he struck him, he then grabbed hold of him, he pulled him towards him.

...

... I am satisfied on the basis of that incident, the beginning of the incident that there is clearly an assault by Michael Flanagan on Martin Amatto. And that because clearly it was started by Michael Flanagan and it was not in self defence, there is no evidence of self defence from his body language or about anything he did.

[31] And as to the assault on Mr Hynch, I am further satisfied again with her Honour Magistrate Walquist's description of what is sighted on the CCTV at [80]:

... Flanagan throws two punches at Hynch's head and I am satisfied they are not wild arm movements they appear to be two punches thrown fairly clearly one after another towards Mr Hynch who has his head turned away at the time.

Having seen the CCTV footage, I adopt the above description of the assaults as described by her Honour, Magistrate Walquist and concur with the finding that Mr Flanagan struck both Mr Amatto and Mr Hynch. The two assaults were therefore proven.

[32] Mr Flanagan, having argued self defence in the Local Court and having had the defence rejected by her Honour accepted the findings and appealed only on the penalty imposed by her Honour but not the conviction. His Honour, Judge A. Hughes heard the appeal and held on 6 August 2007 (at 3):

... he has now admitted to the assault. It was a one-off. His record is impeccable. He has no offences, not even traffic offences. The magistrate found that it was out of character. I am satisfied that it was out of character, given his exemplary record. I uphold the appeal, dismiss the charge without conviction and I find the offence proved but under s10 of the Crimes (Sentencing Procedure) Act, having regard to the good character and age of the defendant, and the extenuation circumstances, I am satisfied that it is inexpedient to inflict any punishment. I order that the charge be dismissed.

[33] However, the Local Court Magistrate, in her Honour's reasoning, also made the following comment (at 82):

Even if there had been words spoken and there had been some provocation, I am not satisfied that that justified the aggressive actions that he took that are displayed on that video.

4 It will have been seen that the other protagonist was Mr Amatto:

[35] Evidence revealed Mr Amatto was a young Aboriginal man who was 23 years of age at the time of the incident. He has a long criminal record. From sighting that record it is clear his unlawful behaviour began as a youth, but progressed from stealing to drunkenness to drug taking and some later acts of violence (especially when under the influence of alcohol and generally in a domestic environment).

5 Kavanagh J addressed the conflicting evidence of Mr Flanagan and Mr Amatto at [38]-[39]:

[38] Mr Flanagan gave evidence that he was quietly playing a poker machine when Mr Amatto came into the poker machine room and Mr Amatto began with the words to the effect of:

"What are you doing around here copper".

Mr Flanagan then gives his version of the event:

I wasn't in uniform so he must have recognised me. I didn't answer him straight away and he said pretty much the same thing again. He wasn't yelling at me or anything but he was speaking directly towards me. I said words to the effect of:

"Mate, leave it alone I don't work up here any more, I work down in Bondi, I'm here visiting friends, lets just leave it alone".

He turned away and started mumbling, loud enough so that I could hear it but not towards anyone in particular, saying "All you coppers should be gutted" and "you're all dogs". I said "what was that?" and looked towards him. I was still sitting down on the stool. He had my attention at that point.

He looked over towards me and said in a louder voice "I'm just saying all you coppers should be stabbed, you are all nothing but dogs"

I said words to the effect of "What? What are you threatening me?" and turned towards him. He said something else about coppers being dogs and I said "Why don't you just shut up and leave, leave it alone".

He stood up and pointed at me and said "I'm just saying, watch your back you mutt - I'll gut you".

[39] Mr Amatto says of the event that he did ask Mr Flanagan what he was doing back and then Mr Flanagan went over to his friends. Mr Amatto says of the event:

5. He then got up from the machine and went and sat at a table with four other young blokes. I kept playing the poker machine and got some good pays on it. I could hear FLANNIGAN talking to the other people he was with. I was only catching every couple of words, cause of the noise in the room, but it sounded like he was saying, "Blacks" and "They're all scoundrels" I didn't hear what he said in between that because of the noise of the machines but I felt at the time that he was putting shit on me about being black. I turned around and saw that FLANNIGAN and the other four were all looking towards me, so I jumped up and said to him, "Who are you talking about mate, who you calling black scoundrels, are you calling us aboriginal people scoundrels?" He said, "Ah fuckoff, why don't you go and get your mates." I said, "Ah fuckoff."

6 Kavanagh J rejected Mr Flanagan's claim that he was provoked:

[41] ... I do not accept in a circumstance where Mr Amatto's oral evidence was often vague and inconclusive as to the details of events leading up to these two assaults that I should therefore accept Mr Flanagan's complete version of the event as submitted by the respondent. I am not persuaded all the detail recited by Mr Flanagan leading up to the proven assaults are established in order to be satisfied the assaults, or at least the assault on Mr Amatto, was "provoked". While Mr Thompson recognised from a distance the exchange was heated, he did not hear the specific words spoken in the exchange, so is unable to corroborate as to the language used. Further, he was of the view it was Mr Flanagan's tone which caused him concern.

...

[45] However, given the state of the evidence, I am willing to accept, for the purpose of my consideration as to whether the decision of the Commissioner to terminate Mr Flanagan's service in the Police Force was harsh, that following the heated exchange in the poker machine room with Mr Amatto, Mr Flanagan was scared. Mr Flanagan was, at the time, under the influence of alcohol. I accept his alcohol consumption could have caused in him an exaggerated reaction of fear and, arising from Mr Amatto's behaviour, he was therefore stressed by the exchange. However, I reject this stress/fear should be perceived as a "provocation" to the assault against Mr Amatto. An element of provocation cannot be claimed in relation to the applicant's proven assault on his friend and cousin, Mr Hynch.

[46] Mr Flanagan now admits his behaviour was unlawful. He has been found to have committed two assaults. Mr Flanagan was, on 27 March 2007, suspended on full pay after the conviction and fine by the Magistrate. He was served a Notice on 4 June 2007. He was allowed an extension to reply to the Notice until after the District Court hearing of his appeal.

[47] Therefore, a question for the Commission is whether, in this particular circumstance, an officer who now admits to two assaults, but, I accept, reacted to a verbal exchange with Mr Amatto and was afraid (rather than provoked) leading up to those assaults, should be terminated or whether in this particular circumstance, where there is evidence of "years of good performance of this Police Officer", such a termination was harsh.

7 In relation to the unauthorised use of COPS, her Honour stated at [76], [80] and [83]:

[76] ... The Police Service in its inquiry revealed some 41 questionable accesses to COPS records. It chose, however, to rely upon only 14 of those unauthorised accesses as foundation for the second charge it relied upon as to his "conduct". A challenge is made to the applicant's assertion that many of the 14 were authorised. However, I am satisfied the audit in the pleaded period reveals there was unauthorised access to the COPS system on a significant number of occasions by Mr Flanagan. I am satisfied there is revealed a pattern of conduct by Mr Flanagan of unauthorised access to the COPS.

...

[80] The difficulty I have with the applicant's explanation to his unauthorised COPS access, even in accepting his access on 19 April 2006 (both to the event summary and to Mr Amatto's criminal record) was authorised by Detective Chief Inspector Lanyon, is when under investigation he continued to make unauthorised COPS access. Further, he used COPS to inquire about other persons mentioned in event reports, persons he knew from the Wellington area.

...

[83] I find, therefore, in the circumstances where two charges of assault have been found proven against the applicant and he has demonstrated a complete disregard for the guidelines related to the absolute confidentiality required of Police Officers in accessing the NSW Police Computerised Operational Policing System, that the termination in such circumstances was warranted. It was certainly not unjust nor unreasonable.

8 At [90] Kavanagh J concluded her decision in the following terms:

[90] Having regard to the competing interests: that of the public interest weighted evenly with that of the applicant as embodied in s181F(3) of the Police Act, I have concluded the circumstances before me do not reveal a simple aberrant act over one evening. The applicant committed two assaults. The circumstances reveal an off-duty Police Officer, under the influence of alcohol, brought public disgrace upon the Police Force with two criminal acts. His conduct after that event revealed a pattern of unauthorised access to the confidential COP System for his own personal reasons. I do not accept that the willingness of other officers to serve with the applicant persuades as to his rehabilitation. No doubt the applicant regrets the circumstances leading to his termination and I accept he is now working and is a responsible member of the community. However, in a circumstance where two assaults have been found proven against the applicant and where a pattern of behaviour related to his COPS access revealed a complete disregard for proper police procedures, I do not accept his termination was harsh.

Second appeal

9 This is the second appeal by Mr Flanagan. The first was in relation to a decision of Staunton J on 7 February 2008 (Michael James Flanagan v Commissioner of Police [2008] NSWIRComm 11). In that decision her Honour dismissed Mr Flanagan's application to be reinstated, finding that his removal was not 'too harsh'.

10 On appeal, the Full Bench found that Mr Flanagan had not been accorded procedural fairness. In Flanagan v Commissioner of Police [2008] NSWIRComm 138; (2008) 180 IR 85 the Full Bench stated:

[6] Staunton J found that Mr Flanagan had maintained that his actions should be perceived through the prism of physically threatening remarks made to him by Mr Amatto in the gaming room of a hotel.

[7] Staunton J also found, however:

[105] Taking all I have considered into account, I have difficulty in accepting the evidence of Mr Flanagan together with the corroborative evidence of Ms Humphries that Mr Amatto did use the direct and explicit words that he is alleged to have said to Mr Flanagan in the gaming room, threatening to 'gut' and/or stab Mr Flanagan and stab police generally. Further, I accept, to some extent, Mr Amatto's evidence before the Local Court when it was put to him that he had made such threats to Mr Flanagan and he emphatically denied them, pointing out that he knew Mr Flanagan was a police officer and that he would be unlikely to 'take on' a police officer in the terms alleged. There is a ring of truth in that statement given, by that stage, Mr Amatto had a relatively lengthy involvement over many years with the criminal justice system and the police force in particular.

[8] Her Honour did not accept that the statements attributed to Mr Amatto that were most material to Mr Flanagan making out the provocation were in fact made by Mr Amatto. This was notwithstanding that Staunton J recognised that if made in the manner attested to by the appellant, they were very serious.

[9] We consider that in approaching the matter in the way she did, her Honour denied the appellant procedural fairness as to an issue that was critical to the determination of his application: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 and Auscare Corporation Pty Ltd v New South Wales Department of Commerce (No 2) [2008] NSWIRComm 124.

[10] The reasons we have come to this conclusion are each predicated upon our opinion that the issue of provocation was a material consideration in considering whether the removal was harsh and that her Honour rejected the appellant's evidence regarding provocation. We consider that rejection constituted a denial of natural justice because:

(a) the appellant's integrity and credibility regarding what occurred in the gaming room of the hotel, did not form part of the reasons for his dismissal;

(b) the respondent did not, in its case, challenge this aspect of the appellant's evidence, or submit that it gave rise to a new issue as to the appellant's integrity and credibility. Indeed, we consider that the respondent conceded that her Honour should proceed on the basis that the words attributed to Mr Amatto in the gaming room were, in fact, uttered by him (in that respect, we note that the evidence of Mr Amatto was only introduced on a limited basis which we will later discuss); and

(c) her Honour did not raise with the appellant in the course of the proceedings that she had a concern with the appellant's evidence as to what occurred in the gaming room to provoke him such as to give rise to a fresh and separate issue as to his credibility, or that it would be taken into account notwithstanding the absence of a contradiction as to its veracity.

[11] We do not accept the contention by the respondent that the attack based on procedural fairness grounds could not be made out because of the approach by the respondent and her Honour to the issues concerning access to COPS.

[12] There is no doubt that an error of this kind constitutes a failure to exercise jurisdiction in a way that vitiates the decision at first instance. In light of such a jurisdictional error, leave to appeal must be granted on public interest grounds.

11 The Full Bench granted leave to appeal and upheld the appeal. The decision of Staunton J was quashed and the matter was remitted to Kavanagh J for hearing.

Grounds of appeal

12 There were 15 specific appeal grounds. The appellant chose to address the grounds in 8 categories:

Appeal Ground 2 (concession ground):

2. Her Honour erred in permitting the Respondent to renege upon a concession it had made at the first hearing of the matter and in the subsequent appeal hearing that it did not contest the Appellant’s account of being threatened by a person who was well known as a local criminal, with an extensive criminal history, immediately before the assault incident which led to his dismissal.

Appeal Grounds 3, 4 and 5 (provocation grounds):

3. Her Honour erred in rejecting the evidence of the Appellant that he had become involved in the assault because of extreme provocation by way of such threats of violence. The finding in this regard was not reasonably open.

4. Her Honour erred in failing to accept the evidence of the Appellant concerning the threats of violence that were made to him prior to him being involved in the assault, in circumstances where the evidence of the only witness who contradicted him was plainly false and totally unreliable and at least found by her Honour to be “often vague and inconclusive”.

5. Her Honour erred in finding that there was any contradiction between the evidence of Mr Flanagan and the account of Mr Thompson contained in the documents, who was not called by the Respondent to give evidence against the Appellant.

Appeal Grounds 12 and 13 (culpability grounds):

12. Her Honour, having found that the Appellant was in a state of fear immediately before the assault incident, erred in failing to find that that factor necessarily diminished the degree of his culpability in the matter.

13. Her Honour erred in not properly taking into account that the assault ground was at the bottom of the range of seriousness, given that he was not convicted of assault.

Appeal Grounds 6, 7 and 9 (COPS access grounds):

6. Her Honour erred in finding that the Appellant gave an assurance at an interview on 19 April 2006, once he had been informed that his practice in connection with COPS accesses was contrary to policy, that he would thereafter cease this practice, but subsequently breached this assurance by continuing his previous practices of accesses. In fact, the interview occurred on 19 May 2006, and the Appellant thereafter ceased his previous practice with respect to COPS accesses.

7. Her Honour erred in finding that she could not accept the Appellant’s evidence as to his unauthorised COPS accesses because “when under investigation he continued to make unauthorised COPS access” [sic]. There was no evidence that Mr Flanagan was made aware of or knew about any such investigation until the interview on 19 May 2006, from which time he entirely ceased his practice with respect to COPS accesses.

9. Her Honour erred in finding that the Appellant completely disregarded policing principles in relation to COPS accesses, when the evidence clearly demonstrated that:

(i) he had an honest and long-held belief that his practice of COPS accesses was appropriate, until he was told otherwise, at which time he stopped;

(ii) his practices in this respect were the same as or similar to those of other police officers with whom he worked, who remain as police officers in good standing;

(iii) his practices had been the subject of police audits over many years, with no problem with his accesses ever having been raised; and

(iv) the police policies on the subject are expressed only in general terms and are unclear in effect.

Appeal Ground 8 (COPS usage ground):

8. Her Honour erred in finding, on the basis of the Appellant’s alleged acknowledgment, that the Appellant would have used any “useful information” from any alleged unauthorised COPS accesses “in his own interest”. This finding was not open to be made, and the Appellant gave no such acknowledgment.

Appeal Ground 10 (COPS warning ground):

10. Her Honour erred in finding against the Appellant on the basis that he had ignored warnings on the COPS computer system that identified his obligations as to access. The evidence in fact demonstrated that there was nothing in the warning which identified that the understanding he had as to what constituted permissible access was wrong.

Appeal Ground 11 (COPS seriousness ground):

11. Her Honour erred in not taking account of the fact that, but for the assault matter, the issue of the COPS accesses would have been dealt with internally at the local level.

Appeal Grounds 14, 15 and 16 (harshness grounds):

14. Her Honour erred in finding that the financial loss suffered by the Appellant was of “minimal significance”.

15. Her Honour erred in considering the issue of harshness by reference only to the financial/economic circumstances of the Appellant.

16. Her Honour erred by relying upon the Appellant’s willingness to forego any back-pay claim as demonstrating a lack of significant financial loss.

13 The appellant sought and was granted leave to amend the appeal notice to add an additional ground:

Her Honour erred in finding that she was not persuaded as to the Appellant's rehabilitation.

Concession ground

14 It will be seen from the earlier extract from the appeal decision ([10(b)] that the Full Bench found Staunton J had erred by rejecting Mr Flanagan’s evidence as to what had occurred in the gaming room with Mr Amatto, because '...we consider that the respondent conceded that her Honour should proceed on the basis that the words attributed to Mr Amatto in the gaming room were, in fact, uttered by him'. At [13] the Full Bench determined that '... there is no other sensible alternative than to remit the matter for re-hearing, particularly in the light of the respondent's submission as to the limits of the concession that it would offer in any remitted proceedings as to what had occurred between the appellant and Mr Amatto in the gaming room.'

15 The appellant submitted that the concession made by counsel for the respondent should have been maintained at the hearing on remittal; that is, as to Mr Flanagan’s evidence as to what was actually said by Mr Amatto and him in the gaming room, but not as to the consequence or effect of this in terms of the subsequent assault incident.

16 The concession was not maintained at the re-hearing. At the commencement of the hearing, the respondent announced that there was no concession as to what was said in the gaming room and denied that it had indicated to the Full Bench that any concession would be maintained in a re-hearing. Mr Flanagan objected below to the respondent being permitted to abandon the concession it had indicated to the Full Bench would be maintained. However, her Honour determined to proceed on the basis of a 'hearing de novo' on all issues, 'notwithstanding the content of the Full Bench judgment'.

17 It is not entirely clear what the basis was for making the 'concession'. However, having regard to the transcript of the proceedings before the Full Bench hearing the appeal from Staunton J, we are prepared to accept senior counsel's explanation that the concession was made for the purpose of enabling the Full Bench to proceed to determine the appeal, but it did not extend to a re-hearing of the matter by way of remittal.

Provocation grounds

18 We identified earlier what Kavanagh J found in relation to the altercation at the Hotel:

· Mr Amatto's oral evidence was often vague and inconclusive as to the details of events leading up to these two assaults;

· nevertheless, her Honour was not persuaded all the detail recited by Mr Flanagan leading up to the proven assaults was established in order to be satisfied the assaults, or at least the assault on Mr Amatto, was 'provoked'; and

· whilst Mr Thompson recognised from a distance the exchange was heated, he did not hear the specific words spoken in the exchange, so he was unable to corroborate as to the language used. Further, he was of the view it was Mr Flanagan's tone which caused him concern.

19 The question is whether the appellant was correct in contending the above findings of fact by Kavanagh J were wrong or not reasonably open: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 688; Wilson v Department of Education and Training [2000] NSWIRComm 20; (2000) 100 IR 1 at [61]- [62].

20 The question of who was to be believed, and to what extent, was a crucial issue given Mr Flanagan's contention that in assaulting Mr Amatto he was provoked by what Mr Amatto allegedly said to him earlier. This included '[a]ll you coppers should be gutted'; 'you're all dogs'; 'I'm just saying all you coppers should be stabbed, you are all nothing but dogs'; and 'watch your back you mutt - I'll gut you'. It was Mr Flanagan's case that whilst the assault occurred, the fact that he was seriously provoked should be regarded as a mitigating factor of significance.

21 Whilst her Honour regarded Mr Amatto's evidence as 'often vague and inconclusive', Kavanagh J did not accept Mr Flanagan's 'complete version of the event as submitted by the respondent'. Whether the reference to 'respondent' was a typographical error and what was meant was 'applicant' or whether her Honour meant that, 'as submitted by the respondent Mr Flanagan's complete version of the event should not be accepted', is not clear.

22 Nevertheless, her Honour accepted there had been a 'heated exchange in the poker machine room', that Mr Flanagan was 'scared' and that alcohol consumption by Mr Flanagan had contributed to his state of fearfulness. If her Honour had accepted Mr Amatto's version of what occurred, there would have been no reason for Mr Flanagan to be fearful. In the circumstances, the only rational reason her Honour could have concluded Mr Flanagan was 'scared' or 'afraid', as her Honour put it, is if she accepted the words attributed to Mr Amatto by Mr Flanagan, or words that had the effect of scaring Mr Flanagan, had actually been said.

23 However, that conclusion sits oddly with the statement by her Honour at [41] that:

[41] ... While Mr Thompson recognised from a distance the exchange was heated, he did not hear the specific words spoken in the exchange, so is unable to corroborate as to the language used. Further, he was of the view it was Mr Flanagan's tone which caused him concern.

24 In other words, if Kavanagh J accepted that Mr Flanagan was fearful after the 'heated exchange' in the poker machine room, it must follow that something was done or said by Mr Amatto to cause that reaction. There was no evidence Mr Amatto did something to constitute a physical threat, so we are left with words alone. However, her Honour indicated that because Mr Thompson did not hear the exchange, there was nothing to corroborate Mr Flanagan's version of what was said. That would seem to suggest there was doubt in her Honour's mind that Mr Flanagan's version was truthful. Moreover, her Honour referred to Mr Thompson's evidence that it was Mr Flanagan's tone that caused him concern, as if Mr Flanagan was the aggressor, which does not follow at all if Mr Flanagan was reacting to threats of the kind he attributed to Mr Amatto.

25 It would appear that her Honour believed parts of Mr Flanagan's evidence, otherwise she could not have concluded he was scared as a consequence of the heated exchange in the poker machine room. However, her Honour indicated she was 'not persuaded all the detail recited by Mr Flanagan leading up to the proven assaults are established in order to be satisfied the assaults, or at least the assault on Mr Amatto, was "provoked"' (our emphasis) and her Honour did not accept Mr Flanagan's 'complete version of the event as submitted by the respondent (sic)'.

26 The 'detail' leading up to the assaults was what occurred in the poker machine or gaming room. There were two conflicting versions about that. Kavanagh J did not say she had accepted Mr Amatto's evidence in any respect. Her Honour simply said his evidence was 'often vague and inconclusive'. Nor could her Honour have reasonably accepted Mr Amatto's version, or any part of it, not only because he was a completely unreliable witness, but also principally because there was nothing in that version that could rationally have led to Mr Flanagan being afraid. Her Honour indicated that she did not accept all of Mr Flanagan's evidence of what occurred, but obviously did accept enough of it to proceed on the basis that what occurred made Mr Flanagan afraid.

27 The only reason Mr Flanagan could have been afraid was if the threats alleged to have been made by Mr Amatto had, in fact, been made. It must follow that her Honour accepted at least the substance of Mr Flanagan's evidence of what occurred in the poker machine room, including the threats relating to stabbing or gutting, because the remainder of what Mr Amatto was alleged to have said, whilst disparaging and offensive, did not amount to a threat such as to cause Mr Flanagan to be afraid. That Mr Flanagan raised his voice in the manner described by Mr Thompson is consistent with what an ordinary person provoked to anger might do having just been spoken to in the manner attributed to Mr Amatto. That Mr Thompson did not hear Mr Amatto make the threats, is consistent with Mr Flanagan's evidence that Mr Amatto was 'mumbling loud enough so that I could hear it but not towards anyone in particular'.

28 Nonetheless, her Honour was not satisfied that what was said to Mr Flanagan by Mr Amatto was sufficient to provoke Mr Flanagan to carry out the assaults, notwithstanding it was enough to make Mr Flanagan afraid, a condition that Kavanagh J said was exacerbated by his alcohol consumption. In this respect, we note that the assault on Mr Amatto and Mr Hynch occurred some few minutes after the heated exchange in the gaming room, so it was not a matter of Mr Flanagan losing his self control in a fit of sudden anger immediately following the threats made to him.

29 The assaults were recorded on CCTV footage, which her Honour viewed, as did the Full Bench. It is difficult to avoid the conclusion that in passing Mr Amatto in the hallway that Mr Flanagan deliberately bumped Mr Amatto thereby re-igniting the confrontation. Mr Flanagan moved away from Ms Humphries who was on his right side and moved closer to Mr Amatto on his left and his left arm moved out from his body to bump Mr Amatto. Mr Amatto and Mr Flanagan both turned towards each other and following a verbal exchange Mr Flanagan grabbed Mr Amatto by the shirt front and the melee escalated from that point.

30 In our opinion, Mr Flanagan was both fearful and angry following the heated exchange with Mr Amatto in the gaming room. It was also probably the case that Mr Flanagan's alcohol consumption fuelled that fear and anger. That state of mind explains why Mr Flanagan bumped Mr Amatto in the hallway of the Hotel, but it by no means justifies his conduct in doing so. Whilst we accept that Mr Flanagan was leaving the Hotel with Ms Humphries to avoid any further confrontation with Mr Amatto, and Mr Flanagan was not seeking Mr Amatto out, the deliberate bumping was a thoughtless attempt to provoke Mr Amatto and inconsistent with the role and responsibility of a police officer whether on or off duty.

31 The CCTV footage shows that after the bumping incident there was a verbal exchange between Mr Amatto and Mr Flanagan when Mr Flanagan said he was further threatened by Mr Amatto saying to him words like 'have a go you dog, I'll gut you mutt'. There is no reason to disbelieve Mr Flanagan and the CCTV footage tends to support this because after the bumping episode Mr Flanagan did not immediately attack Mr Amatto and it was Mr Amatto who made the first move towards Mr Flanagan. It was only after a verbal exchange which, if the words attributed to Mr Amatto are true, it would have served to inflame Mr Flanagan further. Nevertheless, what cannot be overlooked is that if Mr Flanagan had not bumped Mr Amatto the physical confrontation would probably have been averted.

32 As to whether Kavanagh J erred in the way submitted in the provocation grounds, her Honour did not say she accepted Mr Amatto's evidence of what occurred. Further, her Honour, as a matter of logic, must have accepted the substance of Mr Flanagan's evidence to arrive at the conclusion the heated exchange, and what was said by Mr Amatto in the course of it, caused the appellant to be afraid.

33 Kavanagh J also found, of course, that what occurred in the gaming room did not provoke the assaults. Our view of the evidence is that what Mr Amatto said to Mr Flanagan provoked in him a sense of fear and anger and was undoubtedly the reason why Mr Flanagan later did what he did. No other reasonable explanation is available on the evidence. Therefore, to the extent Kavanagh J found there was no provocation, we consider her Honour erred. However, that does not immediately lead to the conclusion that Mr Flanagan is completely exonerated. The benefit Mr Flanagan might derive from the fact he was provoked is diminished by him deliberately re-igniting the confrontation by bumping Mr Amatto in the hallway.

Culpability grounds

34 At [47] Kavanagh J posed the question:

[47] ... whether, in this particular circumstance, an officer who now admits to two assaults, but, I accept, reacted to a verbal exchange with Mr Amatto and was afraid (rather than provoked) leading up to those assaults, should be terminated or whether in this particular circumstance, where there is evidence of "years of good performance of this Police Officer", such a termination was harsh.

35 At [90] her Honour found:

[90] ... The applicant committed two assaults. The circumstances reveal an off-duty Police Officer, under the influence of alcohol, brought public disgrace upon the Police Force with two criminal acts. ...

36 The appellant submitted her Honour failed to take into account two critical considerations in arriving at the above finding:

Her Honour had already found at [45] that Mr Flanagan’s alcohol consumption “could have caused in him an exaggerated reaction of fear and, arising from Mr Amatto’s behaviour, he was therefore stressed by the exchange” (whilst rejecting any notion of provocation). Even accepting the limited terms of this finding, it must necessarily have mitigated to a significant degree the seriousness of the assault incident. There is no indication in the decision that this finding was brought to bear on the question of the harshness of Mr Flanagan’s removal.

There is no indication that her Honour took into account at all the fact that the criminal charges against Mr Flanagan were dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. This fact clearly indicated that Mr Flanagan’s conduct was treated as being at the very lowest end of the range of seriousness by the criminal justice system. It also meant that Mr Flanagan remained a person without any criminal conviction to his name.

37 It was submitted for the appellant this was a failure to take into account matters of relevance and significance, and thereby constituted appealable error. Further, that it also represented a failure to properly consider the appellant’s case, as was required by s 181F(1)(b) of the Act.

38 As to the first critical consideration raised by the appellant, we have largely dealt with that. We have accepted, contrary to her Honour's finding, Mr Flanagan was provoked in circumstances where he was affected by alcohol, but the degree to which that mitigated the seriousness of the assault incident was diminished by Mr Flanagan deliberately re-igniting the confrontation in the hallway of the Hotel.

39 As to the second critical consideration, Kavanagh J appears to have found against the appellant on two bases: that he committed two assaults thereby bringing 'public disgrace upon the Police Force with two criminal acts' and engaged in a pattern of unauthorised access to the confidential COP System for his own personal reasons. We will come to the COPS issues shortly.

40 In relation to the assaults, there is no doubt Mr Flanagan’s conduct was treated in the District Court as being at the lowest end of the range of seriousness. Kavanagh J was aware of the outcome in the District Court, but her Honour did not give any explicit indication of what she regarded to be the level of culpability that the assaults manifested. Implicitly, her Honour seems to have regarded the level of culpability as high, referring to the assaults as two criminal acts that brought public disgrace on the Police Force.

41 Once Kavanagh J arrived at the conclusion there was no provocation, no further analysis occurred and it would appear that her Honour essentially accepted the Magistrate's assessment of the assaults.

42 A proper analysis would have revealed the following:

(i) Mr Flanagan, an off-duty police officer, was drinking at the Wellington Hotel with his partner and members of her family and playing poker machines;

(ii) in a heated exchange, Mr Flanagan was addressed by Mr Amatto in abusive terms including threats of violence. This caused Mr Flanagan to be angry and fearful. Both Mr Amatto and Mr Flanagan were under the influence of alcohol;

(iii) Mr Amatto was a well known local criminal. He had been convicted on a large number of occasions and on a range of matters, including assault, malicious damage, larceny, carrying a cutting weapon upon apprehension, stealing from the person, assault police, resist police, assault occasion actual bodily harm, assault person with intent to resist/prevent apprehension, contravention of apprehended violence order, stealing property in a dwelling house, common assault, shoplifting, custody of an offensive implement in a public place, and resisting officer in execution of duty. He had been sentenced to imprisonment a number of times;

(iv) after the heated exchange, Mr Amatto left the poker machine room and went to the main bar in the Hotel;

(v) Ms Humphries, Mr Flanagan's partner, had gone into the main bar and she asserts there she saw Mr Amatto looking at the CCTV showing Mr Flanagan and at the same time she asserted Mr Amatto was muttering threats. There were no grounds to disbelieve Ms Humphries;

(vi) Ms Humphries went back to the poker machine room and persuaded Mr Flanagan to leave the Hotel;

(vii) Mr Amatto was returning from the main bar with two cans in his right hand when Mr Flanagan with Ms Humphries left the poker machine area and came across Mr Amatto in the Hotel hallway;

(viii) Mr Flanagan moved away from Ms Humphries who was on his right side and moved closer to Mr Amatto on his left and his left arm moved out from his body to bump Mr Amatto such that Mr Amatto is pushed to the right. Mr Amatto and Mr Flanagan both turned towards each other. Mr Amatto moved towards Mr Flanagan and Mr Flanagan extended his arm and placed his palm on Mr Amatto's chest. At the same time there was a verbal exchange between the two men. Mr Flanagan was further threatened. Ms Humphries placed herself between the two men, facing Mr Flanagan. Mr Flanagan grabbed Mr Amatto by the shirt front and commenced to push him. Ms Humphries left to get her father. Mr Amatto pushed back. Ms Humphries' father intervened and grabbed Mr Amatto by the throat and pulled him away from Mr Flanagan. It appeared that Mr Flanagan swung two punches at Mr Amatto, although in respect to the first punch, it is not clear whether Mr Flanagan was attempting to knock Mr Amatto's arm away, rather than punch him. The second punch did not connect with Mr Amatto. The publican attempted to intervene. Mr Hynch arrived and attempted to separate Mr Flanagan and Mr Amatto by pushing against Mr Flanagan. Mr Hynch became involved in a confrontation with Mr Flanagan. Punches were thrown. The melee eventually settled down. Mr Amatto left, it appears, at the urging of Mr Hynch. There was no complaint of injury;

(ix) Mr Flanagan's record was impeccable. He had no offences, not even traffic offences. What he did was out of character. Judge Hughes dismissed the charge without conviction and found the offence proved but under s 10 of the Crimes (Sentencing Procedure) Act;

(x) senior officers were happy to confirm that they would continue to serve with Mr Flanagan in the Police Force and that he would have their absolute trust; and

(xi) Mr Flanagan regretted the circumstances which led to his termination.

43 With respect, we agree entirely with the approach taken by Judge Hughes in the District Court. It was on the spur of the moment that Mr Flanagan decided to bump Mr Amatto in the hallway and that decision was no doubt affected by alcohol; there was no premeditation. Nevertheless, it was an exercise of very poor judgment on Mr Flanagan's part, who was an experienced police officer. He should have realised that it would, in all likelihood, lead to a physical confrontation that should have been avoided.

44 However, what should not be lost sight of is that, shortly beforehand, Mr Flanagan was abused and threatened by a well known local criminal in circumstances where he was off duty and affected by alcohol and where the threats had induced a feeling of fear and anger. Mr Amatto's threats clearly amounted to provocation (even though, interestingly, Mr Amatto was not charged with assault). As her Honour did not weigh this as an important factor in the balance, there occurred an error requiring appellate intervention.

COPS access grounds

45 The second ground relied upon by the Commissioner to remove Mr Flanagan was said to be 14 unauthorised COPS accesses in the period 19 April 2006 to 10 May 2006. The accesses were said to be unauthorised because they concerned a different station or command, or concerned Mr Amatto or the Wellington Hotel incident. Mr Flanagan’s case with respect to those COPS accesses was summarised as follows:

(i) he had a genuine belief that it was an appropriate use of the COPS systems to access station summaries for an area where he had been stationed in the past and in relation to which he had an ongoing connection, in order to 'stay abreast of the policing environment';

(ii) his practice in that respect had been encouraged by other officers, and long pre-dated 19 April 2006;

(iii) other officers, including more senior officers, engaged in the same or similar practices concerning the use of COPS;

(iv) his COPS accesses had been audited many times, and this practice had never been identified as improper or problematic in any way;

(v) he made no attempt to conceal what he was doing because he did not understand it was improper; the investigation about this commenced as a result of an email he sent on 19 April 2006 to Senior Constable Edwards (set out in [51] of the decision) in which he expressly disclosed that he had accessed the Wellington station summaries about the incident;

(vi) insofar as he made accesses to Mr Amatto’s criminal history and the report of the Wellington Hotel incident on 19 April 2006, it was authorised by his superior officer, Chief Inspector Lanyon;

(vii) his access to events related to Mr Amatto on 2 May 2006 was because he was concerned that his complaint about Amatto’s conduct in the gaming room was not being investigated properly (the evidence made clear that nothing was done about it), but in retrospect he realised it was a mistake;

(viii) there was no suggestion in the removal order that he made any improper use of the information he had accessed;

(ix) the warning which appeared on the COPS system prior to access was not expressed in terms which made it clear to him that his practice was not authorised;

(x) the relevant policy documents were expressed in terms such that different officers might take different views as to what might be appropriate in specific situations, appears to have last been published in 1999 in the Police Service Weekly, and was difficult to access and not readily available to police officers; and

(xi) he ceased his practice immediately after being first interviewed about his COPS accesses on 19 May 2006 and after a discussion with Chief Inspector Haines.

46 The appellant submitted her Honour was in error in finding at [66] that:

At his interview on 19 April 2006, Senior Constable Flanagan gave an assurance, as he had been made aware his COPS access was under question, he no longer continued his practice of reviewing the station summaries (events notices) of other commands.

47 It was submitted the interview took place on 19 May 2006, not 19 April 2006. The error was significant, it was submitted, because it placed the interview before or at the beginning of the series of accesses which were ultimately referred to in the s 181D removal order, rather than after them. It was contended that this finding of fact regarding the interview date was regarded by her Honour as of great significance in the consideration of Mr Flanagan’s case. It was noted that at [78] her Honour said:

[78] ... Further, Mr Flanagan gave an assurance he would stop his out-of-area access but that did not stop him accessing the COPS related to the event.

And at [80], her Honour said:

[80] The difficulty I have with the applicant’s explanation to his unauthorised COPS access, even in accepting his access on 19 April 2006 (both to the event summary and to Mr Amatto’s criminal record) was authorised by Detective Chief Inspector Lanyon, is when under investigation he continued to make unauthorised COPS access.

48 Mr Flanagan did not become aware that he was under investigation until the interview occurred on 19 May 2006. However, the appellant submitted Kavanagh J was proceeding on the premise that the interview occurred on 19 April 2006 and, therefore, Mr Flanagan knew at all times thereafter, including when he made the impugned COPS accesses, that he was under investigation about his COPS accesses. Kavanagh J accordingly characterised Mr Flanagan's conduct; as including 'a complete disregard for known policing principles' and 'a complete disregard for the guidelines'.

49 The appellant submitted the factual error made by her Honour was the cause, or a substantial cause, of her Honour’s rejection of Mr Flanagan’s case. The review required to be conducted by her Honour under Pt 9 Div 1C of the Act miscarried as a result of this error. It was submitted Mr Flanagan’s case was not properly considered by the Commission as required by s 181F(1)(b) of the Act.

50 Kavanagh J was clearly in error in finding that Mr Flanagan was made aware on 19 April 2006 that his COPS access was under investigation. The interview that is referred to in [66] of her Honour's judgment took place on 19 May 2006. That renders her Honour's findings at [78] and [80] of her judgment wrong because after the interview on 19 May Mr Flanagan did stop accessing COPS in relation to the Amatto incident.

51 At [81] Kavanagh J found:

[81] These in depth searches conducted on individuals, along with the applicant's regular access to the event reports and sometimes Intelligence Reports of the Wellington station, reveal a complete disregard for known policing principles by Senior Constable Flanagan as to the privacy and confidentiality of the COPS system. Such access indicates his disregard for the confidentiality of police records. The facts indicate a complete disregard by Mr Flanagan of his obligation as a serving Police Officer to respect an individual's privacy. It also shows a complete disregard for the confidentiality required in respect of general police work. The imperative of respecting the confidentiality of such police records must be, in this day and age of technological access to endless private information, be given the utmost respect. Many of the applicant's access to COPS in the relevant period had no legitimate professional purpose.

52 The respondent submitted that her Honour's comments in [81] of her judgment were not founded upon Mr Flanagan first becoming aware of such 'policing principles' and guidelines through his interview on 19 May 2006. It was submitted the evidence established the extensive publication and promulgation of these policies throughout the Police Force, including on the first screen of computer access to the COPS. Further, that Mr Flanagan should have been well aware of the policies at the time he first started making enquiries about the ramifications of his actions on Saturday 15 April 2006, and his generation in the system of his own report about the events of that night, including that Mr Amatto supposedly may make false allegations.

53 To the extent that Kavanagh J was influenced by her incorrect understanding about when Mr Flanagan was advised he was under investigation in relation to his COPS accesses, her Honour also erred in her findings at [81]. Mr Flanagan did not act in 'complete disregard for known policing principles... as to the privacy and confidentiality of the COPS system' because once he was advised on 19 May 2006 that his access to COPS was under investigation he stopped the unauthorised accesses.

54 Kavanagh J found, however, that Mr Flanagan disregarded police procedures relating to COPS access prior to 19 May 2006 by failing to comply with Police policies regarding COPS access, including instructions that appear on the computer screen every time an officer accesses COPS. The instruction was to the effect that the information in the system was not to be accessed for personal reasons. That her Honour found Mr Flanagan had accessed COPS without authority during the relevant period, namely, 19 April to 10 May 2006, independent of her incorrect finding that he continued to access COPS after being warned, is apparent from what her Honour stated at [76], [78] and [88] of her decision:

[76] ... However, I am satisfied the audit in the pleaded period reveals there was unauthorised access to the COPS system on a significant number of occasions by Mr Flanagan. I am satisfied there is revealed a pattern of conduct by Mr Flanagan of unauthorised access to the COPS. I am satisfied the allegation he has to defend and which he was properly advised by the Commissioner was as to ALL his unauthorised accesses in the relevant period and not the access which he identifies as only related to the Wellington incident. I am satisfied the Notice, Reasons and Orders make clear that reliance was placed on all unauthorised accesses identified in the audit during the relevant period.

...

[78] However, the applicant's explanation for the "drilling down" to review again Mr Amatto's criminal record on 2 May 2006 and that of Mr Amatto's partner, Ms Burns, on the same day, I do not accept. Mr Flanagan asserts this access was to see if any other incidents re Mr Amatto were reported and as to the access to Ms Burns' history, its purpose was to check whether Mr Amatto had committed acts of violence against her. Mr Flanagan asserts overall he was concerned the Wellington Police "weren't looking into the matter involving the Wellington Hotel properly! ... If I had come across anything I was going to bring the information to the attention of my duty officer". That is, he says, he made such access because his complaint of Mr Amatto's asserted violence towards him and the Police Force generally was not being viewed seriously by the Police Service. I do not accept any of these explanations legitimises his access to Mr Amatto's and Ms Burn's criminal history on 2 May 2006. Further, Mr Flanagan gave an assurance he would stop his out-of-area access but that did not stop him accessing the COPS related to the event.

...

[88] Even accepting the access to the COPS on 19 April was for the purpose of the preparation of his Intelligence Report and was authorised, nonetheless, the later access, when he drilled down again into Mr Amatto's criminal records and sought access to that of Ms Burns and, as well, continued access to the Wellington station "events" and "intelligence" reports, I do not accept can be explained away by Mr Flanagan's explanation he did it as a proper policing practice. He showed continually in the relevant period no compliance with proper Police procedures. He ignored on each access the reminder and warning that is given with each access.

55 The question arises whether her Honour's findings regarding Mr Flanagan's unauthorised COPS access were correct and, if so, whether that constituted a proper basis for upholding the appellant's dismissal. In answering those questions it must be remembered that the basis upon which the appellant's application was dismissed was two-fold:

(1) the appellant committed two assaults without provocation and by so doing brought public disgrace upon the Police Force with two criminal acts;

(2) the appellant engaged in a pattern of unauthorised access to the confidential COP System for his own personal reasons and continued to do so, despite being advised he was under investigation.

56 If the first ground was found to be in error and that Mr Flanagan did not continue to access COPS after being advised he was under investigation, the only remaining ground is the appellant's engagement in a pattern of unauthorised access to the confidential COP System for his own personal reasons.

57 We find it difficult to believe that Mr Flanagan was not aware that access to COPS was not permitted for personal reasons. Our opinion is that Mr Flanagan realised he might be in some trouble over what occurred at the Wellington Hotel if a complaint was laid, and finding on COPS that Mr Amatto had, in fact, laid a complaint, made use of COPS in order to place himself in a better light. That was an impermissible use of COPS. However, we accept that there were mitigating considerations, although not completely exculpatory, that include:

· other officers, including more senior officers, engaged in the same or similar practices concerning the use of COPS;

· the appellant's COPS accesses had been audited many times, and his practices had never been identified as improper or problematic in any way;

· the appellant made no attempt to conceal what he was doing; and

· the appellant ceased his practice immediately after being first interviewed about his COPS accesses on 19 May 2006 and after a discussion with Chief Inspector Haines.

58 We also believe there was an element of truth in Mr Flanagan's evidence that he was concerned that his complaint about Mr Amatto’s conduct in the gaming room was not being investigated properly.

59 Before finalising our consideration of the COPS access ground, we propose to deal with the other COPS related grounds.

COPS usage ground

60 It was part of Mr Flanagan’s case that he made no improper use of any information gained from his COPS accesses. However, Kavanagh J rejected this at [79]:

[79] ... Counsel for Mr Flanagan suggests what has been revealed is a case of access but no dissemination. However, I have no doubt, had the unauthorised access revealed any useful information, Mr Flanagan would have used it in his own interest as he himself acknowledged. He told the Commission he was looking to search for domestic disputes by inference to further support his proposition that Mr Amatto commits acts of violence.

61 The appellant submitted that the 'acknowledgement' appeared to be a reference to the evidence given by Mr Flanagan as summarised in [78] of the decision (extracted earlier), which was taken from his second statement of evidence. That evidence was as follows:

I believe I conducted those two enquiries because I was concerned that the local police weren’t looking into the matter involving the Wellington Hotel properly. If I had come across anything I was going to bring the information to the attention of my duty officer.

62 This would appear to be correct, because we were unable to find any other statement of Mr Flanagan that could be regarded as the sort of acknowledgement referred to by her Honour.

63 The appellant further submitted her Honour's finding was in error because:

(i) It did not diminish the fact that Mr Flanagan made no improper use of any information obtained from COPS.

(ii) The finding (“I have no doubt ... Mr Flanagan would have”) was speculative in nature and not related to his actual conduct, which constituted access only (which he accepted, in relation to the two accesses of 2 May 2006 referred to earlier, he should not have done).

(iii) Mr Flanagan’s evidence that he was going to bring any information to the attention of his duty officer could not possibly be taken to constitute improper use of information on the COPS system, and to describe this hypothetical conduct as “using the information in his own interest” was an unfair mischaracterisation of his evidence.

64 As to the first proposition, the respondent submitted that it was always his case that as a result of what Mr Flanagan had seen in his access to the COPS 'Event Ref E26561822' on the morning of 19 April 2006 he prepared his intelligence report as a pre-emptive 'spin' on the events of that night. However, Kavanagh J did not find this was the case.

65 The respondent also submitted that Mr Flanagan accessed the 'Event Ref E26561822' before he spoke to Detective Chief Inspector Lanyon at Penrith on 19 April 2006, and it was only after he saw that there was a detailed 'Event Ref' and a proposed complaint from Mr Amatto that he began formal processes in relation to his version of events that night. However, again Kavanagh J did not make the finding that Mr Flanagan had accessed the relevant COPS event on 19 April 2006 before he spoke to Detective Chief Inspector Lanyon. Her Honour accepted, at least provisionally, Mr Flanagan’s evidence as to his COPS accesses on that day.

66 As the appellant submitted, an appeal court is in a good position to draw inferences from established facts as the trial judge, and where it considers that an inference drawn by a trial judge is wrong, it must give effect to its own judgment: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; (1979) 23 ALR 405 at 551-3 per Gibbs CJ, Jacobs and Murphy JJ.

67 There was no basis for the inference drawn by Kavanagh J that Mr Flanagan would have used any information in his own interest if her Honour was inferring that the use of the information would have been improper. The fact that the appellant had indicated that if he had come across anything he was going to bring the information to the attention of his duty officer, could not be regarded as improper use of the information.

COPS warning ground

68 The appellant submitted that critical to Kavanagh J’s conclusion on the COPS issue was her finding at [82] that Mr Flanagan had 'ignore[d], on a daily basis', the warning screen which appeared whenever the COPS was sought to be accessed, and thus he was not 'a true professional'. This, it was contended, aided her Honour’s conclusion that Mr Flanagan was deliberately, rather than inadvertently, engaged in unauthorised COPS accesses. The appellant submitted this inference, drawn from the undisputed facts concerning the content of the warning screen, was wrong and should be corrected upon appeal.

69 Referring to the content of the warning message the appellant submitted it said no more than that access must be lawful, and must not be for personal, demonstration or training reasons. Counsel submitted:

Given the evidence concerning the nature and origin of Mr Flanagan’s misapprehension as to what constituted appropriate access to COPS, there was nothing in the warning screen that operated to disabuse him of that misapprehension. Mr Flanagan’s own evidence about the warning screen... was that 'I didn’t appreciate that NSW Police considered the way that I was using the COPS system to be inappropriate'. He could not in that context be characterised as simply “ignoring” the warning.

70 The respondent submitted that the conclusions of her Honour were well open to her and displayed no error at all, let alone any appealable error.

71 We have already expressed our scepticism about Mr Flanagan's understanding that he was not contravening any policy by accessing COPS in the way he did. It was wrong of Mr Flanagan to access COPS in an attempt to improve how his conduct might be viewed.

COPS seriousness ground

72 The appellant submitted that accepting that he accessed the COPS in a way not approved by the NSW Police Force, it remained for her Honour to assess the seriousness of his conduct in this respect. One important matter in this connection, it was said, was the fact that, when his conduct was considered by the Police Force internally in isolation from the assault incident, it was referred to his Local Area Command to be dealt with at the local level. The appellant surmised that the matter came before the Commissioner only as a result of his compulsory s 181D nomination because of the criminal assault charges. The appellant submitted it could be inferred from this that, by itself, the COPS matter was not considered as being at a level of seriousness justifying removal. The appellant submitted this was a significantly relevant matter, but there was no indication in the decision that Kavanagh J took this into account when considering whether the removal was harsh.

73 There was no evidence about the manner in which the unauthorised accesses first came to the attention of the Commissioner and the views of any other person than him as to their seriousness does not carry much weight.

74 However, if it be accepted that provocation should have been a significant factor taken into account at first instance and was not and that Mr Flanagan did not continue to access COPS after 19 May 2006, the only other consideration is that Mr Flanagan engaged in unauthorised access of COPS for personal reasons, such access is to be viewed in the light of mitigating factors.

Harshness grounds

75 At [84]-[85] Kavanagh J stated:

[84] However, even if there were grounds for the termination, the Commission still has to consider, in evenly balancing the interests of both the applicant and the public interest, whether the termination was harsh. I accept as submitted by Mr Hatcher this must be a balancing exercise with no favour given to the public interest although the Commissioner's reasoning is to be considered as well as the integrity of the Police Force. It has already been noted the applicant had a good service record with commendations. He presented character evidence from senior officers who were happy to confirm they would continue to serve with him in the Police Force and he would have their absolute trust.

[85] Subsequently the applicant has obtained suitable employment. He has not wasted away his time but continued in employment. He initially suffered a financial loss but now that loss is of minimal significance. He has proved by his subsequent behaviour he is a responsible citizen. He has enjoyed promotions. He is willing to forego any back-payment claim since he was terminated in a circumstance where he has significantly mitigated his ongoing financial loss.

76 The appellant submitted Kavanagh J committed three errors in her consideration of the harshness issues:

(i) Her Honour found that Mr Flanagan 'initially suffered a financial loss but now that loss is of minimal significance'. That was not a correct characterisation of the position. Mr Flanagan in his initial statement of evidence prepared for the first hearing before Staunton J described very significant financial loss resulting from his removal, in circumstances where he had only been able to obtain low-paying casual work and had significant financial commitments. By the time of the second hearing before Kavanagh J, his circumstances had improved, primarily insofar as he had obtained stable, albeit still lower-paying employment as a compliance officer with the department of Liquor, Gaming and Racing. However, he still owes about $11,500 for money loaned to him whilst out of work. Mr Flanagan submitted below: 'Particularly in relation to what has happened since Staunton J’s decision, his loss has become far less substantial but there is nothing to diminish the notion that it was harsh...'.

(ii) Her Honour did not consider harshness except by reference to the financial/economic circumstances of Mr Flanagan, and took no account of other relevant matters - in particular the loss of what Mr Flanagan regarded as his life’s vocation, and the depression he suffered as a result.

(iii) Her Honour treated the fact that Mr Flanagan chose not to seek back-pay as a remedy in addition to reinstatement as relevant to harshness, on the basis that it was indicative of his success in significantly mitigating his loss. However, that approach was advanced by Mr Flanagan below in order to enhance his prospects of being reinstated should his removal be found to harsh. Her Honour erred in using that concession as to remedy as a basis to find that removal was not harsh in the first place. This involved an impermissible conflation of the initial issue of whether the removal was harsh, unreasonable or unjust and the second, contingent issue of remedy: see Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 453; Anderson v Northern Co-operative Meat Company (2004) 137 IR 404 at [33-34]; Riley v WorkCover Authority [2006] NSWIRComm 108; (2006) 151 IR 396 at [95]; Carlton and United Beverages Limited v Brunt at [54-55].

77 We are not convinced there were errors in her Honour's findings regarding harshness as stated in the first two challenges stated above, but even if there were, they were not of such a nature, of themselves, as to cause us to overturn her Honour's decision.

78 However, we consider that there is substance in the third stated challenge. First, there was an impermissible conflation of issues going to the question of harshness and those concerning remedy. In any event, her Honour misapprehended this aspect of the appellant's case. This constituted error.

Additional appeal ground

79 At [90] of the first instance decision her Honour said:

[90] ... I do not accept that the willingness of other officers to serve with the applicant persuades as to his rehabilitation.

80 The appellant submitted this conclusion appeared to indicate a view that Mr Flanagan might have a propensity to engage in further misconduct in the future. If so, such a conclusion was not open, it was submitted. There was no evidence to suggest that Mr Flanagan might engage in further misconduct, and such a proposition was not a feature of the respondent’s case.

81 The appellant noted her Honour's reliance on the Full Bench decision in Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 at [75] where the Full Bench said:

[75] Given the seriousness of the appellant's misconduct, the importance of integrity in the Police Force and the particular significance that is to be attached to the reasons for the Commissioner's loss of confidence, we consider his Honour erred as a matter of fact and law in allowing himself to be influenced to the extent he did in having regard to the character evidence. His Honour could have only properly reached the conclusion that, in the light of that evidence the dismissal was harsh, if his Honour had accepted that the applicant was rehabilitated and that there was, therefore, an insufficient basis upon which the Commissioner could maintain his loss of confidence accordingly. No such conclusion was properly available on the evidence in this case. Evidence of fellow officers' perceptions of the appellant over a relatively short space of time where the appellant was most likely on his best behaviour is not sufficiently strong to counteract what was evidence of misconduct of the most serious kind and which was found by the trial judge to justify removal.

82 It was submitted that the elements of premeditation, calculation and deception were not present in this case. Therefore, the question of rehabilitation did not properly arise with respect to the consideration of harshness.

83 We agree with the appellant's submissions on this issue. Toshack concerned entirely different circumstances. There is no reason to believe that if reinstated or re-employed Mr Flanagan would engage in further misconduct.

Consideration

84 We have found that Kavanagh J erred in five significant respects, namely:

(i) by failing to find Mr Flanagan was provoked and, thereby, underrating the significance of that issue in relation to mitigation and whether the removal was harsh or unreasonable;

(ii) by finding that Mr Flanagan continued his unauthorised access to the COP system after being advised his use of COPS was under investigation;

(iii) in finding that had the unauthorised COPS access revealed any useful information, Mr Flanagan would have used it in his own interest;

(iv) by relying on the concession of the appellant as to back pay as an issue going to harshness; and

(v) by making erroneous findings as to rehabilitation.

85 In light of these findings it is in the public interest that we grant leave to appeal so as to correct these errors in the proper administration of justice and give guidance generally as to the proper approach to mitigating factors in matters arising under s 181E. The errors were significant in that they concerned central and relevant aspects of Mr Flanagan's case. They must lead to the appeal being upheld.

86 Having made the findings regarding error, it falls to the Full Bench to consider whether Mr Flanagan's removal was harsh, unreasonable or unjust.

87 In weighing the necessary considerations in this appeal we have, on the one hand, Mr Flanagan, a police officer of some 10 years standing at the time of the incident and a senior constable. Mr Flanagan received Officer of the Year for the Granville/Rosehill Local Area Command in 1999 and again in 2003 for the Penrith Local Area Command. He also received an award for commitment to policing and the community in 2006. Apart from what occurred in 2006 his record was unblemished.

88 On 15 April 2006 Mr Flanagan was off duty and having visited Wellington for personal reasons, accompanied Ms Humphries and her father to the Wellington Hotel. Mr Flanagan had once been stationed at Wellington. At the Hotel, Mr Flanagan was abused and threatened by Mr Amatto, a well known local criminal with convictions for a variety of offences including assault, carrying a cutting weapon upon apprehension, assault police, assault occasion actual bodily harm, assault person with intent to resist/prevent apprehension, custody of an offensive implement in a public place, and resisting officer in execution of duty. Mr Flanagan was fearful of the threats and angry.

89 Notwithstanding there was a finding by Kavanagh J that Mr Flanagan became fearful following the heated exchange in the poker machine room, her Honour considered that Mr Flanagan had not been provoked. The basis upon which her Honour arrived at this conclusion is not entirely clear. We fail to see how the words of Mr Amatto could instil fear, but not be regarded as provocative to an off duty officer whose judgment was affected by alcohol.

90 We do not consider there is any doubt that Mr Flanagan bumped Mr Amatto in the hallway as a consequence of being provoked in the poker machine room. The provocation does not excuse Mr Flanagan's conduct, as we earlier indicated, but it is a significant factor that should have been taken into account in mitigating the seriousness of what occurred. In that respect, Mr Flanagan's conduct in bumping Mr Amatto was neither calculated nor premeditated.

91 In considering, on the other hand, the public interest and the fact the Commissioner made an order under s 181D(1) of the Act, it may readily be accepted that there is no public interest in retaining officers in the Police Force who have committed assault and, when all the circumstances are considered, what was found to have occurred was indefensible, a gross act of wrongdoing or without significant mitigating factors. But the very reason the Commission is required under s 181F(3) of the Act to have regard to both the applicant's interest and the public interest is so that it may, in a judicial sense, weigh the respective interests in the balance, consider all the circumstances, and decide whether the removal of the police officer was harsh, unreasonable or unjust.

92 In doing so in this case, we have concluded that the penalty of dismissal was harsh and unreasonable. The conduct of Mr Flanagan at the Wellington Hotel on 15 April 2006 was a single aberrant act mitigated by provocation. As an officer of 10 years' standing and an unblemished record, dismissal was punishment disproportionate to the gravity of the conduct, having regard to all of the circumstances. We do not accept there is any public interest in jettisoning Mr Flanagan, an experienced police officer with an exemplary record because of a single act that was completely out of character, in circumstances where, what led him to misconduct himself, was provocation by an individual with a serious criminal record. We consider that latter consideration to be important, as it is in the public interest that police officers not be subjected to intimidation by criminals or former criminals because the police officers had previously formerly (or potentially) discharged their duties in relation to those persons. We would have thought that may have been a matter of some concern to the Commissioner of Police.

93 In relation to the unauthorised COPS access by Mr Flanagan, it certainly aggravated the seriousness of Mr Flanagan's conduct overall. Nevertheless, given the mitigating circumstances, we are not satisfied it justified removal. Further, the seriousness with which Kavanagh J viewed the unauthorised COPS access was heightened by her Honour's belief that Mr Flanagan continued his unauthorised access despite knowing he was under investigation. That belief was wrong.

94 Whilst the unauthorised use of COPS involved a breach of confidentiality and Police policy and must be taken seriously, the use was not such that, of itself, it provided grounds for dismissal in this particular case. We note that in this case the unauthorised access was not accompanied by any untruthfulness on Mr Flanagan's part and there was no attempt to cover up the access (cf Morgan and Commissioner of Police [2009] NSWIRComm 184). We would make the observation that the effectiveness of placing a warning on a computer screen may diminish over time as a degree of indifference or perfunctoriness sets in. From time to time it may be necessary to reinforce the warning by some other means.

Remedy

95 We note the evidence that senior officers were prepared to confirm that they would continue to serve with Mr Flanagan in the Police Force and that he would have their absolute trust; that the appellant regretted the circumstances which led to his termination; and that Mr Flanagan has shown by his behaviour since termination that he is a responsible citizen, and a responsible member of the community.

96 The appropriate remedy in this case is that Mr Flanagan is re-employed by the respondent with no loss of rank, seniority or continuity of service. In coming to the view that it is re-employment that is the appropriate remedy, we have had regard to Mr Flanagan's conduct that led to his removal.

97 It follows that for the period Mr Flanagan was not employed with the Police Force he will receive no pay.

Orders

98 The Full Bench makes the following orders:

(1) Leave to appeal is granted.

(2) The appeal is upheld.

(3) The decision and order of Kavanagh J of 15 July 2009 are quashed.

(4) Within 14 days of the date of this decision Michael James Flanagan is to be re-employed by the Commissioner of Police at the rank and seniority held by him at the time of his removal with full continuity of service.

(5) There shall be no entitlement to pay for the period during which Mr Flanagan was not employed by the respondent (but that period will be counted for the purpose of accrual of entitlements).

___________________________

LAST UPDATED:
4 February 2010