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Industrial Relations Commission of New South Wales |
Last Updated: 18 August 2011
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Case Title:
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Medium Neutral Citation:
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Decision Date:
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Before:
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Decision:
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Catchwords:
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APPEAL - POLICE - Application by Commissioner of
Police for leave to appeal and appeal from decision at first instance to order
re-employment
of a police officer to a lower grade - Officer removed pursuant to
s 181D of the Police Act 1990 on ground of officer's conduct - Officer exposed
penis to group of fellow officers and persons as a "party trick" in a restaurant
at a Christmas party - Innate seriousness of misconduct - Whether officer
genuinely contrite and remorseful - Whether primary judge
gave sufficient weight
to earlier episodes of misconduct - Consideration of alcohol as a contributing
factor to misconduct - Whether
primary judge gave sufficient weight to public
interest - Whether there was power to order re-employment to a lower grade -
Whether
it was impracticable to re-employ officer to lower grade - "Immaturity"
- Whether primary judge erred in mixing factors relevant
to question of
harshness and factors relevant to assessing gravity of misconduct - Relevance of
character evidence - Leave to appeal
granted - Appeal dismissed
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Legislation Cited:
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Fair Work Act 1994 (SA)
Industrial Relations Act 1996 Industrial and Employee Relations Act 1994 (SA) Police Act 1990 Police Act 1998 (SA) Summary Offences Act 1988 |
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Cases Cited:
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Abboud v State of New South Wales (Department of School
Education) [1999] NSWIRComm 449; (1999) 92 IR 32
Alexander v Commissioner of Police [2009] NSWIRComm 3 Applicant v Respondent [2009] AIRC 950 Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Casari v Sydney South West Area Health Service (No 2) [2008] NSWIRComm 240 Commissioner 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 Evans [2006] NSWIRComm 170; (2006) 153 IR 144 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198; (2009) 185 IR 458 Crowe v Graham, Duncan, Rogers & McKay [1968] HCA 6; (1968) 121 CLR 375 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Director of Public Employment by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Director General, New South Wales Dept of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 Dismissal of Union Delegates at Homebush Abattoir, Re [1966] AR (NSW) 371 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Foster and Woolworths Limited [2000] NSWIRComm 208 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Hosemans v Commissioner of Police (No 2) [2004] NSWIRComm 253; (2005) 138 IR 159 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 House v The King [1936] HCA 40; (1936) 55 CLR 499 J Aresca v Qantas Airways Limited [2002] AIRC 41 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284 McCabe v New South Wales Police Service [1996] NSWIRComm 105; (1996) 99 IR 361 Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (NSW Branch) [1973] AR (NSW) 231 Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Moloney v Mercer [1971] 2 NSWLR 207 Morgan v Commissioner of Police [2009] NSWIRComm 184 New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 Rowland v Austar Coal Mine Pty Limited [2010] FWA 8011 Samad v Public Service Board (NSW) (1983) 5 IR 464 S Mason v Boyne Smelters Limited [Dec 880/99 B Print R7701] Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; (2010) 194 IR 144 Ueckert and Australia Water Technologies Pty Ltd [2000] NSWIRComm 123 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Wright v R (No 2) [1968] VR 174 |
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Texts Cited:
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Parties:
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Representation
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- Solicitors:
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File number(s):
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Decision Under Appeal
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- Court / Tribunal:
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- Before:
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- Date of Decision:
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- Citation:
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Lawrance v Commissioner of Police [2010]
NSWIRComm 149Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173
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- Court File Number(s)
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Publication Restriction:
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Decision of Boland J, President and Staff J
[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. ...
[5] In attendance at the Christmas party there were 24 adults and one child.
There were 16 serving officers ... 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 (sic) 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.
First instance decision
(1) 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.
(2) 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.
(3) There was a conversation about tattoos and piercings. The respondent revealed he had a 'party trick' (that is, the penis piercing) which he would "normally do in some sort of closed company" with people he knew and was socialising with.
(4) The respondent 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. The respondent conceded it was his intention to show the 'party trick' but not necessarily to open a beer bottle.
(5) The respondent stood up to carry out the 'party trick' in the first occurrence. The respondent then unzipped his trousers and exposed his penis with the ring and the bottle opener attached.
(6) The following persons witnessed the first occurrence: SC Pope, SC Gosper, SC Sippel, SC Hardwick, Mrs Lawrance and Mrs Pope.
(7) The respondent was well affected by alcohol when he engaged in the first occurrence of the impugned conduct.
(8) Some time later in the evening, the respondent was involved in a second occurrence of the impugned conduct.
(9) The following persons witnessed the second occurrence: SC Pope, SC Gosper, SC Hardwick, Mrs Pope and Mrs Lawrance.
(10) Despite the respondent's efforts at non-disclosure, persons other than the respondent's intended audience may have witnessed the impugned conduct. Given the nature of the conduct, exposure to it offered the real potential for offence.
(11) In the second occurrence, the respondent removed his penis from his trousers with the bottle opener attached and opened SC Pope's beer bottle.
(12) The respondent was standing when he engaged in the second occurrence of the impugned conduct.
(13) It is possible the impugned conduct occurred on a third occasion.
(14) 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.
(15) The restaurant was well patronised on the night and that, taking into account the respondent'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.
(16) Patrons of the restaurant, other than those attending the party, were not present at any time during the impugned conduct. There was no real or appreciable risk that a person, other than a member of the party or staff, observed the impugned conduct.
(17) The restaurant proprietor did not witness the conduct. There was no evidence that a member of the restaurant's staff witnessed the conduct.
(18) 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 respondent's conduct and treated the behaviour as a form of entertainment - laughing and joking about the respondent's 'party trick'. Some of them encouraged the conduct.
(19) The true nature and impact of the conduct 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.
[240] ... 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] ... 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.
[230] ... 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.
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.
[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. ...
[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. ...
[252] ... 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).
...
[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.
...
[259] ... [A]n 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.
...
[262] ... 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.
(1) he was not satisfied that the Commissioner adequately took into account
the character references relied upon by the respondent
as part of his case;
(2) the combination of the respondent'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.
(3) the Commissioner stated that he was "very concerned" that the respondent
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 respondent had appeared
"to have blatantly
disregarded" the warning. None of this gave any recognition
of the respondent's submission that he did not receive the document in
question
and had never received a document of that kind.
[287] There is, in this case, an admitted act of misconduct, accompanied by a
relevant prior incident of misbehaviour by the applicant
... 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 ...
[314] ... 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] 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.
[H]as 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.
[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.
[325] I have been particularly influenced ... 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.
[341] ... 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.
(1) conditions should be imposed to monitor and control the respondent's
alcohol practices for a specified period of time (see Commissioner of Police
v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44);
(2) no opportunity for promotion for a period of 12 months; and
(3) the respondent receives a final written warning as to any future
misbehaviour.
1. The Commissioner of Police shall re-employ Andrew Lawrance as a Senior
Constable, Level 5, Step 1 effective from 3 December 2010
in a position to be
determined by the Commissioner of Police.
2. The period from the date of removal to the date of re-employment will not
count as service for any purpose (and the applicant will
not be entitled to any
payment for that period), but will not break continuity of service for the
purpose of calculating leave entitlements.
3. To the extent Andrew Lawrance was paid, on removal, for leave entitlements
accrued prior to that date, the leave will not be re-credited
unless the
applicant repays the relevant payments.
4. The re-employment of the (sic) Andrew Lawrance is subject to the following
conditions:
(a) When he is on duty (as distinct from being rostered on duty), he will
submit to testing by an authorised person for the presence
of alcohol at least
once per year;
(b) He is not necessarily to be given notice of the time of testing;
(c) He may not refuse or fail to undergo a breath test or breath analysis in
accordance with a direction of an authorised person;
(d) Any testing is to continue for such period he remains a member of NSW
Police Force or a shorter period as determined by the Commissioner
of Police;
(e) He will not be eligible for promotion before 4 December 2011; and
(f) He will receive a final written warning in a form determined by the
Commissioner of Police, as to any future behaviour.
Appeal grounds/Appellant's submissions
(1) in failing to have proper regard to the innate seriousness of the
respondent's misconduct;
(2) in finding the respondent was genuinely contrite and remorseful;
(3) in failing to pay proper regard and given proper weight to earlier
episodes of misconduct;
(4) in accepting that an "alcohol defence", whether such be characterised as
an "excuse" or as an "explanation", was available at
all and in finding that
such a defence was made out on the evidence, in the sense that a causal
connection was established;
(5) in relation to the weight to be given to the public interest factors
identified in s 181F(3)(b) of the Police Act in light of the Court of
Appeal decision in Commissioner of Police for New South Wales v Industrial
Relations Commission of New South Wales & Sewell [2009] NSWCA 198;
(2009) 185 IR 458 (" Sewell ") at [77];
(6) in finding there was power to order re-employment to a lower level; and
(7) even if there were power, in finding that there was a proper basis for
the making of that order, especially in light of his Honour's
finding it was
impracticable for the respondent to be reinstated as a Sergeant.
Respondent's submissions
(1) the primary judge did not err in relation to the nature of the
misconduct. Given the concession by the appellant at first instance
that this
conduct did not fall within the most serious category of cases that come within
the Commission and given that Walton J
found that the misconduct did not fall
within the lowest category of seriousness it is difficult, if not impossible, to
see what
error the judge is alleged to have made. The finding that the
seriousness of the misconduct fell somewhere along the spectrum other
than at
the lowest end or at the most serious end, is not a finding of fact which is
clearly wrong, nor is it a finding of fact that
was not reasonably open on the
evidence;
(2) there was no error by the primary judge in relation to contrition and
remorse. His Honour dealt with this issue comprehensively
and it was properly
taken into account as a mitigating factor;
(3) the manner in which his Honour dealt with prior misconduct disclosed no
error: see Lawrance at [300]-[302]. The appellant did not suggest that
the response to the Wanaaring incident was wrong in any respect, leaving it well
open to the judge to conclude that the shift from guidance and counselling
notice, to removal under s 181D, might disclose some lack of coherent
discipline. The appellant did not articulate why the prior misconduct should
have been accorded
any different weight, to the point of establishing an error
that would involve the intervention of the Full Bench;
(4) the appellant's submissions regarding the "Alcohol Defence" are a
distortion of both the case put by the respondent at first instance,
and the
treatment of that issue by the primary judge. As recorded in the decision at
[253]: "It was submitted for the [respondent]
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." The respondent did not rely
on
his alcohol consumption to excuse or defend his conduct. There was otherwise
evidence available to conclude that alcohol had contributed
to the incident
occurring. This was not limited to general conclusions concerning the
disinhibiting effects of alcohol, but were
found in the report by psychologist,
Wendy McCartney, tendered without objection and without Ms McCartney being
required for cross-examination.
The appellant incorrectly characterises Walton
J's treatment of the respondent's admitted alcohol consumption as involving a
mitigation
of the seriousness of the conduct. Whilst this may have been a small
part of the way in which the alcohol consumption was viewed,
the focus of Walton
J was on rehabilitation and risk of recurrence. There is no inconsistency in, on
the one hand, disavowing using
alcohol consumption as an excuse for behaviour,
and on the other, recognising that alcohol consumption, and indeed a wider
alcohol/drinking
problem contributed to his conduct and needed to be addressed
on a broader level.
(5) the appellant's submission concerning treatment of the issue of public
interest is without merit: see Sewell at [73]-[77]. The submission
presumes that public interest considerations are limited to one side of the
assessment process - that
is, against the interests of the respondent. The
concept of the public interest will rarely be unitary in nature. The appellant's
submissions amount to little more than a complaint about the conclusion reached
by Walton J. The complaint is made in circumstances
where the appellant made no
submissions about the public interest, integrity of the Police Force, or the way
in which these matters
should have been weighed at first instance;
(6) in respect to the challenge to the power to order re-employment, the
appellant did not take this point at first instance, and
indeed put a contrary
position to the trial judge. The appellant should not be allowed to raise the
matter on appeal. In the alternative,
the appellant has not identified in what
way a decision to re-employ at a lower rank offends s 89(2). The fact that this
sub-section,
unlike sub-section 89(1), does not specify that such re-employment
is to be "not less favourable" is destructive of the appellant's
argument. The
appellant assumes that the decision to re-employ constitutes punishment,
ignoring the fact that the facility to re-employ
at a lower level is wholly
consistent with the jurisdiction imposed on the Commission to consider an
alternative remedy if reinstatement
is found to be impracticable. In this case
the reduction in responsibilities associated with re-employment at a lower rank
accommodates
the concerns that led the Commission to conclude that reinstatement
was impracticable. Further, although the Police Act specifically excludes
the operation of some parts of the unfair dismissal regime in the IR Act, it
does not exclude s 89(2). The reference by the appellant to Ferdinands v
Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 appears
to imply that the introduction of some part of the Police Act impliedly
repeals s 89(2) of the IR Act. There is no support for this proposition in
Ferdinands , which involved different legislation to that operating in
this jurisdiction;
(7) the decision to order Mr Lawrance's re-employment as a Senior Constable
involved an exercise of discretion on the part of the
judge at first instance,
and accordingly a different, and even more stringent approach to the appeal
applies: see Mace v Murray [1955] HCA 2; (1955) 92 CLR 370. Walton J
specifically referred to the responsibilities of a Sergeant in performing duties
as Station Manager or Shift Supervisor
when deciding that re-employment as a
Senior Constable was the appropriate remedy. There is no basis to suggest that
his Honour was
not mindful of the responsibilities of a Senior Constable,
neither can it be suggested that those responsibilities are the same as
those of
a Sergeant. There is no error in his Honour concluding that the immaturity of
character displayed by the respondent in engaging
in the misconduct :
(a) Made reinstatement to the rank of Sergeant impracticable;
(b) Did not preclude re-employment as a Senior Constable;
It is unfair for the respondent to have to deal with these matters freshly on
appeal, when the appellant chose not to detail any reasons
for his submission
below. In any event, the arguments are without merit.
Leave to appeal
Principles governing appeal
In the case of an appeal from a judge in the strict sense, the appellate
court will substitute its own judgments only if the trial
judge has fallen into
error of law or has made a finding of fact which is clearly wrong or are not
reasonably open on the evidence:
Camilleri's Stock Feeds Pty Ltd v
Environmental Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise,
the appellate court should not intervene. As Priestley JA recently
observed in Martin v Byrnes (unreported, Court of Appeal, Priestley
, Stein JJA and Sheppard AJA, 25 May 1999):
The cases running through the hundred years from Coghlan v Cumberland
[1898] 1 Ch 704 to Earthline Constructions [(1998) [1999] HCA 3; 160 ALR 588] all
show that courts such as this court are duty bound to reverse conclusions based
on trial judges' views of fact when those views
of fact are plainly wrong but
are equally duty bound not to reverse such decisions of a trial judge merely
because the intermediate
appellate court itself takes a view different from that
of the trial judge of the factual findings that should have been made.
The jurisdiction of this Court is to review the decision of the Full Court,
applying to the case the principles that were applicable
by that court, and, if
necessary, to make such order as the Full Court should have made. The principles
to be applied in such a case
are not in doubt. The order of the learned primary
judge was made in the exercise of a discretionary judgment; and it has been
repeatedly
laid down by this Court, following decisions of the highest authority
in England, that in such a case a court of appeal is not justified
in
interfering with the decision appealed from unless it reaches a clear conclusion
that by reason of some error, whether of fact
or of law, the primary judge not
only has taken a view different from that which the judges of the court of
appeal would have taken
if they had been in his place, but has failed properly
to exercise the discretion committed to him: House v. The King [1936] HCA 40
; (1936)
55 CLR 499 , at pp 504, 505; Lovell v. Lovell [1950] HCA 52
; (1950)
81 CLR 513 , at pp 518-520, 526, 528, 532-534; Pearlow v. Pearlow [1953] HCA 77
; (1953)
90 CLR 70 , at pp 76, 77; Paterson v. Paterson [1953] HCA 74
; (1953)
89 CLR 212 , at pp 218-224. Moreover, the order of McLelland J. was made
with the advantage of having seen and heard the witnesses, and particularly
the
parties, as they were examined and cross-examined in the witness-box; and that
was an advantage not only in considering the credibility
of the witnesses but
also in appreciating the character and personality of each of the three persons
whose future relationship to
the child the court had the responsibility of
deciding. The case was pre-eminently one for the application of well-known words
originally
used by Lord Shaw and since approved by other learned lords: "In my
opinion, the duty of an appellate court in those circumstances
is for each judge
of it to put to himself ... the question: Am I - who sit here without those
advantages, sometimes broad and sometimes
subtle, which are the privilege of the
judge who heard and tried the case - in a position, not having those privileges,
to come to
a clear conclusion that the judge who had them was plainly wrong? If
I cannot be satisfied in my own mind that the judge with those
privileges was
plainly wrong, then it appears to me to be my duty to defer to his judgment":
Clark v. Edinburgh & District Tramways Co. Ltd. (1919)
SC (HL) 35 , at p 37; see Powell v. Streatham Manor Nursing Home (1935)
AC 243 , at p 250; Watt or Thomas v. Thomas (1947)
AC 484 , at p 488.
(a) made an error of legal principle,
(b) made a material error of fact,
(c) took into account some irrelevant matter,
(d) failed to take into account, or gave insufficient weight to, some
relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of
the foregoing categories of error had occurred, even though
the error in
question did not explicitly appear on the face of the reasoning.
Seriousness of the misconduct
(i) the primary judge erroneously did not consider that the earlier Wanaaring
incident - the respondent exposing his penis in the
public bar of the Wanaaring
Hotel - as "so grave" that its repetition "of a somewhat more significant
character" necessitated s 181D
removal;
(ii) his Honour placed too much weight on the fact that, in his Honour's
view, only a small number of people at the restaurant actually
witnessed the
"trick" , as this did not alter or lessen the innate offensiveness and
seriousness of this public indecency;
(iii) as to those factors identified by his Honour as "adding to the
gravity of the misconduct" :
(a) his Honour did not evaluate the respondent's conduct by reference to
the special character of his employment and the need for discipline and high
repute . His Honour should have concluded, but did not, that the
respondent's position as a senior Police Officer was an "aggravating"
factor, rendering the misconduct more serious than it might otherwise be
regarded if engaged in by a person not following the "calling" of the
Police Force;
(b) by concluding that in the absence of charges being laid against the
respondent the most that may be said of that matter is that
the respondent may
have, in other circumstances, attracted attention under the Summary Offences
Act ( s 5), his Honour understated the unlawfulness of the conduct -
especially as there was clear evidence of "offence", and the fact that
it was
only good luck (versus good management) that the respondent was not charged with
a criminal offence;
(c) in stating there were "some elements of incompatibility between the
[respondent's] conduct and his duties" his Honour seriously
understated the
level of that "incompatibility" between the respondent's conduct and his
duties and his position as the most senior officer at the Christmas party;
(d) in finding "one of the episodes (the second occurrence) involved opening
a bottle with the bottle opener attached to the respondent's
penis (irrespective
of whether the penis could be seen or not) does tend to elevate the seriousness
of the misconduct", his Honour
erred in understating the obvious offensive,
bizarre and serious nature of this misconduct;
(e) his Honour found that "the impugned conduct occurred as a result of a
deliberate step being taken by the [respondent] to prepare
for the 'party
trick', but only in the sense that the [respondent] 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' ...
Whilst the [respondent'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 ". However, his Honour's own findings can only lead
to a conclusion that the respondent's conduct involved a deliberate and knowing
breach of applicable rules and standards of fundamental importance and also
ruled out, contrary to his Honour's further finding,
acceptance of a submission
that conduct was not "premeditated" (versus " spur of the moment
" );
(iv) his Honour erroneously downplayed the significance of the 2005 incident
and two further earlier incidents of public indecent
exposure, on the untenable
basis that the respondent had, in effect, "got off lightly" with respect to the
Wanaaring incident, and
the two prior occasions had not been the subject of any
action by the appellant, respectively;
(v) his Honour found that "the conduct engaged in by the [respondent] could
not be described... 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
[respondent]".
In this respect, his Honour erred not only in understating the
seriousness of the misconduct by reference to the real world "scale
of
seriousness" but he also demonstrated a confusion between a proper and necessary
(separate) assessment of the seriousness of the
misconduct and the separate
question of whether the removal of the respondent was "harsh" in all the
circumstances: see Director of Public Employment by his Agent
Director-General of Dept of Juvenile Justice v Public Service Association (on
behalf of
Brown) [2008] NSWIRComm 221 at [57]- [74]. His Honour's confusion
and error in this regard is further confirmed by his later conclusion as to
"seriousness" reached following
a "proper balancing of the factors described in
para [296]" of his decision;
(vi) in addition his Honour erred in that he failed to afford any, or any
sufficient, weight to the following "potent considerations",
namely:
(a) his Honour erred in not treating the Respondent's status as a senior
officer in the Police Force as an "aggravating" factor in
considering the
seriousness of the misconduct;
(b) any person (let alone a Sergeant of Police) pulling out his penis in a
public place is a fundamental affront to community values/standards,
criminal
conduct and conduct to be rejected as totally repugnant;
(c) both the obviousness and the seriousness of the propositions in (a) and
(b) above is reflected in the fact that Australia wide
research suggests that
there has only been one occasion wherein a male worker who has "exposed" himself
has been reinstated (and
then mental condition was said to have been involved);
(d) this was not "one off", "aberrant", "out of character" behaviour by a
junior police officer, but planned/deliberate behaviour
by a Sergeant of Police
(and the most senior officer at the restaurant/party) who had not only engaged
in such public indecent exposure
on several prior occasions, but also been
formally counselled about the total unacceptability of that behaviour only two
years earlier;
(e) the respondent's inability to grasp the seriousness of the misconduct
that he engaged in was a matter that clearly troubled His
Honour, yet such
concerns were not then properly taken into account when assessing the
seriousness of the misconduct and impracticability
of re-employment (based,
inter alia , on an erroneous conclusion that there was a "confident"
basis that the cause of the misconduct had been eliminated);
(f) his Honour failed to focus on what, in particular, was required to ensure
that the "public interest" in "maintaining the integrity
of the New South Wales
Police Force" was properly taken into account, and failed to pay proper regard
to the fact that the community
would regard such public "exposure" as entirely
unacceptable.
Implications of the Wanaaring incident
[323] ... 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.
Small number of people witnessed the "party trick"
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.
Factors adding to the gravity of the 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]).
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.
[I]t 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.
[J]unior officers and their wives/partners were obviously not going to agree
to be witnesses in criminal proceedings (or in these
review proceedings) and say
that they were offended by his "party trick" , knowing too well the
consequences that that would, or could, have for the Respondent, but also for
the junior officers themselves,
a matter admitted by the Respondent himself.
[A] number of the witness statements tendered by the appellant [before Walton
J] were from junior officers and had they been required
by the respondent for
cross-examination, they would have become witnesses giving oral evidence in the
review proceedings. The inference
to be drawn from the appellant's submission is
that the appellant believes that his own witnesses at first instance were not
truthfully
disclosing matters including any "offence" at the respondent's
conduct.
(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).
Earlier incidents down played
[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.
Harshness and seriousness of misconduct - separate issues
[308] ... 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.
[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
- sic 296], 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. ...
Nature of police work
Conduct "totally repugnant"
Seriousness reflected in other case outcomes
Respondent's inability to grasp the seriousness of the 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.
Integrity of Police Force and community attitudes
Mitigating/Extenuating Factors
(a) Course of Conduct;
(b) Seniority/Status;
(c) Alcohol Defence;
(d) Risk of Recurrence;
(e) Contrition/Remorse;
(f) Credit;
(g) Offensive Conduct;
(h) Character References;
(i) Public Interest.
Course of Conduct
(a) Had an established course of conduct in taking his penis out of his
trousers in public with a view to impressing/entertaining
anyone interested in
looking at the "Prince Albert" piercing through the end of his penis (and/or any
object hanging from that piercing);
(b) (Hence) had an established practice of introducing the topic of body
piercing and then volunteering that he had a penis piercing,
undoubtedly for the
purpose (by overwhelming inference) that those persons would then request (out
of interest) or demand (out of
disbelief) to see his pierced penis; and
(c) (Then) quite untenably, actively relied on these invitations/dares to
expose himself as part of his defence or explanation for
his totally
unacceptable conduct.
Seniority/Status
Alcohol Defence
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.
The respondent did not rely on his
alcohol consumption to excuse or defend his conduct.
(a) concluded, on the basis of the respondent's evidence and evidence
forthcoming from witness accounts relied upon by the appellant,
that the
respondent was affected by alcohol on the night in question;
(b) accepted the unchallenged evidence of Ms McCartney that the respondent
had an alcohol or drinking problem;
(c) accepted the evidence of Ms McCartney that the respondent had taken steps
successfully to address the drinking problem; and
(d) relied on this fact to conclude that this lessened the likelihood of the
incident occurring again in the future.
Risk of Recurrence
[254] ... 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. ...
[252] ... 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).
[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.
...
[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 vis the impugned conduct. This prior alcohol problem is (sic) 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.
Contrition/Remorse
Credit
(a) had engaged in the misconduct after being counselled about the Wanaaring
incident;
(b) proffered spurious defences (presumably the alcohol defence);
(c) offered unconvincing expressions of remorse and contrition;
(d) lacked integrity because he failed to be candid about the reasons for his
behaviour;
(e) disregarded s 7 of the Police Act and Oath of Office;
(f) showed lack of insight into his obligations, the significance of past
warnings, and community expectations as to indecent exposure.
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. ...
More than once in recent years, this Court has pointed out that a finding of
fact by a trial judge, based on the credibility of a
witness, is not to be set
aside because an appellate court thinks that the probabilities of the case are
against - even strongly
against - that finding of fact ( Brunskill [1985]
HCA 61; (1985) 59 ALJR 842; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR
349; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR
167). If the trial judge's finding depends to any substantial degree on the
credibility of the witness, the finding must stand unless it
can be shown that
the trial judge 'has failed to use or has palpably misused his advantage' (
SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on
evidence which was 'inconsistent with the facts incontrovertibly established by
the evidence' or which was
'glaringly improbable' ( Brunskill (1985) 59
ALJR at 844; 62 ALR at 57).
Offensive Conduct
Character References
(a) seemingly unconditional support and endorsement of the calibre of the
respondent, implicitly rested on an entirely unacceptable
tolerance of
deliberate indecent exposure in a public place and preparedness not to regard
such behaviour as serious;
(b) in an addition to the natural bias/sympathy of friendship, the bulk of
the referees were led to believe that intoxication was
(at least) a significant
causal factor, in circumstances where this was not the case;
(c) the referees were not aware that the respondent had a well established
practice of performing his "party trick" in restaurants,
night clubs and saw it
as a "bit of fun"; and
(d) their support for the retention of the respondent rested, in effect, on
the dangerous, untenable and unacceptable notion that
if the "captain" leads his
team with distinction on the field, then there should be a higher tolerance for
his off field antics,
even when very serious, because he is good for the team
and the club (his "value" outweighs any odium or disrepute associated with
such
tolerance).
[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.
[76] It cannot be, and was not directly, suggested that the Police
Commissioner's decision on matters of this kind can be regarded
as
determinative. Without saying so, as a matter of substance, that is what the
applicant sought to achieve in this Court. Of course,
that is inconsistent with
the conferral of a power of review on the Industrial Relations Commission.
[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.
[S]upport for the retention of the respondent rested, in effect, on the
dangerous, untenable and unacceptable notion that if the "captain"
leads his
team with distinction on the field, then there should be a higher tolerance for
his off field antics, even when very serious,
because he is good for the team
and the club (his "value" outweighs any odium or disrepute associated with such
tolerance).
Public Interest
[77] 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. ...
[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) [sic - 181F(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] NSWIRComm 293; (2007) 169 IR 301 at [62].)
(a) did not indicate the matters that needed to be looked at when considering
the expression "maintaining the integrity of the Police
Force" and hence could
not/did not explain how the public interest in protecting that integrity was
outweighed by other considerations
in this case;
(a) failed to consider and explain in his reasons how the integrity of the
NSW Police Force (from the Commissioner's confidence/perception
point of view)
was not seriously compromised by the Respondent's indecent exposure, such
that a conclusion of harshness was reasonably open; and
(c) failed to consider and explain in his reasons how the integrity of the
NSW Police Force (from a public confidence/perception point
of view) would not
be undermined/ jeopardised, if the Respondent was returned to the NSW Police
Force.
[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.
...
[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.
(a) what was the likelihood that the public would regard it as totally
unacceptable that the Police Force should have amongst its
senior ranks, an
officer who thought that exposing his penis in public places was "a bit of fun"
and not "indecent"?;
(b) how can the Appellant be seen as an effective manager of a disciplined
force, if he cannot get rid of officers who (repeatedly)
engage in indecent
exposure in public (and do so even after "advice and counselling")?;
(c) what message will be sent to other police officers if this officer is
returned to work - ie will it not be an alcohol "defence"
(even a weak one) will
get you one, if not two chances to stay in the Police Force, even if your
misconduct is very serious (ie even when it involves indecent exposure)?;
(d) will not the public, or a significant proportion of the public, see it as
inequitable/unfair that a senior police officer gets
to keep his job in spite of
repeated acts of indecent exposures in public, when it would be inevitable that
they would lose their
jobs if they engaged in the same behaviour?;
(e) how will the public have confidence in, and accept the work of, our
Police Force in seeking to uphold the law, if police officers
themselves show
scant regard for it?; and
(f) in these circumstances, especially where the central facts were not in
issue (and defiance of direction was clear), why would
it not be necessarily
appropriate to give significant weight to "the fact" that the Appellant had
assessed this case and made his
expert determination as the appointed statutory
manager of the Police Force?
Harsh by a fine margin
Relief
Re-employment
If the Commission considers that it would be impracticable to reinstate the
applicant, the Commission may order the employer to re-employ
the applicant in
another position that the employer has available and that, in the Commission's
opinion, is suitable.
Reinstatement
The Commission may order the employer to reinstate the applicant in his or
her former position on terms not less favourable to the
applicant than those
that would have been applicable if the applicant had not been dismissed.
There is no such power as the two statutory regimes cannot be
reconciled/operate concurrently because the Appellant does not/cannot
lose his
internal disciplinary power/discretion, because of the way in which the
Commission has exercised its power to review the
Appellant's removal
decisions. Given that internal discipline is first a matter
for the Appellant, and only some of his decisions are then reviewable:
see s.173 Police Act, Parliament cannot have intended that this Commission can
exercise that internal power on a final basis in Removal
review proceedings, i.e. with the Appellant then bound by the Commission's
view, even if he does not agree with it and would not have
made that decision
himself under s.173: see Ferdinands . (emphasis in original)
(a) he lacked integrity in that he failed to take responsibility for (by
being candid about) the reasons for his public exposure behaviour
and the number
of occasions on which he had engaged in such conduct;
(b) he displayed a disturbing disregard for section 7 Police Act
values and the Oath of Office that he took; and that
(c) he showed a disturbing lack of "insight" with respect to his role
model/mentoring obligations and as to community standards/expectations
about
indecent exposure in public: see, for instance, Gardiner at [139]-[147]
generally (even when allowance is made for the fact that this was a case
involving a pre-existing psychological condition);
Reid-Frost No.2 at
[128]-[130], [137], [154]-[158]; and
(d) the "public interest" could not be appropriately served/protected if
re-employment was ordered.
[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.
...
[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].
Conclusion
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
(3) The stay of the orders of Walton J on 2 December 2010 is dissolved.
Decision of Kavanagh J
Commissioner's Decision to Terminate Employment
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.
Decision at first instance
a fresh and independent review decision itself, based on the material before
the Commissioner as well as any new evidence admitted.
The 2008 "Impugned Conduct"
2. ... 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'. ...
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 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. Again, the applicant, with
his back to the
restaurant, stood and removed his penis from his trousers. However, on this
occasion, he allowed [name] 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).
...
6. There is some doubt about whether the applicant engaged in the impugned
conduct on a third occasion. ... 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 ...
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. ...
His Honour also concluded
some officers:
8. ... did not find humour in the applicant's behaviour (as other officers
inside the restaurant did) and disassociated themselves
from the conduct. ...
the true nature and impact of the conduct which ... 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.
... 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 [sic] before
the Commission.
The Second 2005 incident
... The applicant, who was off duty at the time, played pool with [name],
[name] and [name]. The applicant had a friendship with the
women. A conversation
arose about tattoos and body piercings that each of them had. [name] 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. [name] took
no offence. The applicant stated he was not
intoxicated.
His Honour then chose to compare the 2005 and 2008
incidents, reasoning at [234]:
... it may be accepted that there were similarities between parts of the
impugned conduct [2008] 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
[2008]
also involved him additionally attaching a bottle opener to his penis (and using
it). ... there were similar elements ...
but the impugned conduct was more
serious.
He also concluded at [238] that the fact that the 2005 conduct:
... gave rise to an investigation should have made him more aware of the
adverse consequences of performing his 'party trick' on 11
December 2008. ...
New evidence of similar conduct
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.
Incident in 2002
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.
...
[240] ... [it] 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).
Incident in 2005
... 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.
His Honour concluded as to this evidence
at [241]:
[241] In relation to the events of 2005, ... 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.
Three procedural incidents
The 1997 Incident
The 1998 Incident
The 2002 Incident
Seriousness of 2008 incident
Harshness
[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.
[323] When there is a proper balancing of the factors described in para [297] (sic [296]), 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. ...
The Present Appeal
... The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. ... (emphasis added)
... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ... (emphasis added)
where the outcome is so at odds with what the Full Bench considers a proper outcome that the epithet "manifest injustice" can [be] [sic] properly applied.
Conclusion
... 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]).
This comment was made when his Honour was considering the seriousness of the 2008 conduct alone. His Honour simply found "infringement" of the norms in the 2008 conduct. While his Honour made a general finding the conduct was a breach of the norms, he failed to give his reasons. There was no further consideration by his Honour of those "norms" relied upon by the Commissioner as recited in the Police Act, Regulations and Code of Conduct and Ethics in relation to the 2008 conduct (or any of the other similar incidents revealed in the new evidence). However, in a fresh view of the Commissioner's decision his Honour was obliged under s 181F of the Police Act 1990 to consider the following:
181F Proceedings on a review
(1) In conducting a review under this Division, the Commission must proceed as follows:
(a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force,
(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,
(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case
... 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.
His Honour failed in this reasoning to make any findings related to the 2008 conduct (or the other similar incidents) as to how the conduct should be perceived within the measure of community standards. To recite that various statutes offer "some guide" but not to apply such guiding principles in his assessment of the seriousness of the misconduct viewed within community standards, his Honour was in error. The evidence persuades each act of exposure was in a public place; on at least two of the occasions women were present and on one occasion some police officers and their partners distanced themselves from the exposure of the respondent's penis in the performance of the respondent's "party trick". To suggest the 2008 conduct was an act of "self aggrandisement" is not to measure such conduct against community standards.
[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.
It appears his Honour was prepared to give little weight to the nature of the conduct nor its repeated extent prior to 2008 but yet allowed the effect of alcohol on the respondent (inferring consideration be given to the prior incidents) to weigh heavily in his Honour's public interest consideration that it was in the public interest (and by inference in the best interest of the police force) to continue to employ an officer who despite warnings continued the impugned conduct. In such reasoning, his Honour allowed the consumption of alcohol to become an issue which distracted from the primary issue as to whether given the nature and extent of the conduct in the context of counselling, the termination was harsh. In this reasoning, his Honour erred.
... 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. ...
Such reasoning led to his Honour to find it was "reasonably open" and on the "margins" that the removal for the misconduct in 2008 was "harsh".
Orders
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
(3) The stay of the orders of Walton J on 2 December 2010 is dissolved.
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