James Todd V Commisioner of Police

Industrial Relations Commission
New South Wales
Case Name: Todd v Commissioner of Police
Medium Neutral Citation: [2019] NSWIRComm 1048
Hearing Date(s): 5, 6 and 7 June, 11 July, 29, 30 and 31 October, 1, 5, 6,

7 and 8 November 2018, 27 May 2019
Decision Date: 7 August 2019
Jurisdiction: Industrial Relations Commission
Before: Murphy C
Decision: The application by James Todd for review of the order

removing him from the NSW Police Force is dismissed
Catchwords: POLICE – removal of police officer – s. 181D Police Act

1990 – review under s.181E Police Act – allegations of
misconduct and/or poor performance – mental health
issues – medical evidence inconclusive – application
dismissed
Legislation Cited: Police Act 1990
Cases Cited: Corrective Services NSW v Danwer [2013]

NSWIRComm 61
Category: Principal judgment
Parties: James Todd (Applicant)

Commissioner of Police (Respondent)
Representation: Counsel:
Mr G Doherty (Applicant)
Mr M Seck (Respondent)
Solicitors:
Mr P Walter, Walter Madden Jenkins, Solicitors
(Applicant)
Ms E Baxter, K&L Gates (Respondent)
File Number(s): 2018/00023893
DECISION
1 On 6 September 2017, the applicant, James Todd, then a serving Police
Constable, was served with a notice pursuant to subsection 181D(3)(a) of the
Police Act 1990 which contained 10 separate allegations of misconduct and/or
poor performance. The applicant provided the respondent, the Commissioner
of Police, with a detailed written response to the allegations on 17 October
2017. On 10 January 2018, the applicant was served with an order made
pursuant to subsection 181D(1) of the Police Act which removed him from the
NSW Police Force. The applicant has applied to this Commission for a review
of the removal order pursuant to section 181E of that Act.
2 The hearing of this matter occupied thirteen days spread over a period of
twelve months. In addition to the applicant, evidence in support of the
application was given by the applicant’s wife, Tamara Todd, Dr Paul Friend,
Senior Constable Jason Maybury and Christopher Leeson, former colleagues
of the applicant. In opposition to the application, the respondent called the
following witnesses to give evidence:
• Leading Senior Constable Shannon Gates

• Inspector Peter McLay
• Sergeant Nicholas Brunyee
• Leading Senior Constable Nicole Shaw (formerly Harmer)
• Leading Senior Constable Brad Hallam
• Inspector Paul Hugget
3 In these reasons for decision and in the extracts from the documents
reproduced herein I have substituted the initial of the surname for the full name
of persons outside of the NSW Police Force who were involved in the various
matters which formed the basis of the various allegations against the applicant
which ultimately led to his removal from the Police Force.
4 Below are set out relevant extracts from the respondent’s Statement of
Reasons which accompanied the removal order:
Background to LMl1601425
On 31 March 2016, Leading Senior Constable Nicole Harmer was performing
duties as the Custody Manager at Wagga Wagga Police Station. She says she
needed urgent assistance with a prisoner and she required an ambulance.
CCTV footage shows that at 4.59pm Leading Senior Constable Harmer
checks the cells and then makes a telephone call. Leading Senior Constable
Harmer says she called the supervisor's office and you answered the
telephone. She says you have the following conversation:
Harmer: “Toddy, call an Ambulance. I need urgent assistance. I've got a guy
that's collapsed and I need someone to enter the cell with me.”
You: “I will come down."
Sergeant Paul Huggett recalls you answering the telephone at that time. After
you finished the call he says you told him something similar to "Nicole needs a
hand in the charge room. So I will go down and help''. He says you did not
indicate that the request for assistance was urgent.
Leading Senior Constable Harmer says she waited several minutes but you
did not appear. CCTV footage shows that at 5.04pm she makes another
telephone call. She says she spoke with Sergeant Huggett. She repeated to
him that she needed urgent assistance, and an ambulance, because a
prisoner had collapsed.
Sergeant Hugget recalls that when he answered the telephone, Leading
Senior Constable Harmer asked him “Where is Toddy and my ambulance". He
responded, “Isn’t he down there with you and I don't know about an
ambulance". Leading Senior Constable Harmer recalls Sergeant Huggett
telling her that he thought you were 'down there’ with her. She replied that you
were not.
Sergeant Hugget went directly to the charge room. He says he asked
someone to call an ambulance and yelled for other officers to make their way
to the charge room. He then assisted in moving two prisoners from the cell
area to the dock.
CCTV footage shows that at 5.05:22pm Sergeant Huggett and others enter the
cell complex. At 5.05:56pm the footage shows you arriving. Sergeant Huggett
says you looked 'shocked'. Leading Senior Constable Harmer says you
appeared in the cell complex smelling strongly of cigarette smoke.
Sergeant Huggett says he spoke to you on 1 April 2016. He asked you to
explain your actions. He says he has the following conversation you:
You: “Nicole rang up and told me that a person had or was attempting to hang
himself in the charge room and that she needed assistance to check on him."
Huggett: “What did you do then?"
You: "I went outside for a smoke.''
Huggett: “Talk me through this decision to help me understand why you went
for a smoke instead of helping your mate out in the charge room."
You: “I just didn't think it was that serious, so I went for a smoke."
In your report dated 1 April 2016, you admit you spoke to Leading Senior
Constable Harmer. You say she told you that a male was in the custody room
and was attempting to tie his jacket around his neck. You state that you told
her you would attend the custody room 'shortly'. You also state that you told
Sergeant Huggett that ''someone is playing up in the custody area", although
you say you do not know if Sergeant Huggett heard you.
You admit you then went outside to the rear car park area to have a 'smoke'.
You say you returned to the custody area about two minutes later and saw
several officers removing a person from the cells and placing them in the dock.
You say that you realise your actions put the safety of your fellow officers and
the health of the person in custody at risk. You state you have no explanation
for your actions and submit you made a grave mistake.
Response
In your Response, you admit the allegation and apologise for your behaviour.
You are unable to explain your actions, but say it was out of character. You
refer to difficulties in your personal life and say you were extremely distracted
from performing your duties. You further say you have agonised over your lack
of action and your confidence in doing your job was shattered. You say you
will never act the same way again.
You say you have now sought the assistance of the Employee Assistance
Program.
Allegation 1
I find, on the balance of probabilities, although having regard to the
seriousness of the allegation, that on 31 March 2016, after receiving a call for
assistance from a senior colleague to assist with a person who was in custody,
you went for a cigarette (smoke) before attending the custody room.
In the circumstances, I conclude that your conduct was contrary to the Police
Act 1990, the Police Regulation 2015, the Work Health and Safety Act 2011
and the NSW Police Force Code of Conduct and Ethics.
5 The Statement of Reasons then set out a number of further adverse findings
against the applicant. These were:
Allegation 2
seriousness of the allegation, that you failed to personally serve an Application
for an Apprehended Domestic Violence Order on Mr C.
In the circumstances, I conclude that your conduct was contrary to the and the
NSW Police Force Code of Conduct and Ethics, the Domestic and Family
Violence Standard operating Procedures, the Crimes (Domestic and Personal
Violence) Act 2007, and the Local Court Rules 2009.
……………………………………
Allegation 3
seriousness of the allegation, that you falsely recorded in the Statement of
Service that you had personally served Mr C in circumstances where you had
left the Order with another person.
In the circumstances, l conclude that your conduct was contrary to s7(a) of the
Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct and
Ethics as set out above in relation to Allegtion1.
………………………………………
Allegation 4
seriousness of the allegation, that you should:
• not have charged Mr H with an offence under s 527C(1)(a) of the
Crimes Act 1900;
• have charged Mr H with an offence under s 527C(1)(c) of the Crimes
Act 1900; and
• have filed the Court Attendance Notice with the Local Court prior to 3
December 2015, and before the six-month limitation date.
I find that your alleged conduct has resulted in the matter becoming statute
barred and the prosecution failing.
I further find, on the balance of probabilities, although having regard to the
seriousness of the allegation, that you failed to properly investigate the matter.
In particular, you:
• did not seek assistance regarding the appropriate action to take
against the person of interest; and
• failed to follow the guidance provided to you to interview the person
of interest yourself.
In the circumstances, there appear to be grounds on which I could conclude
that your conduct was contrary to s 7(e) of the Police Act 1990 (as set out
above in relation to Allegation 1), Points 2 and 3 of the NSW Police Force
Code of Conduct and Ethics (as set out above in relation to Allegations 1 and
2), the Criminal Procedure Act 1986 and the Police Handbook.
……………………………………
Allegation 5
seriousness of the allegation, that you have failed, over a substantial period, to
meet the expected standards of performance and competence of a Constable
of police. Your deficiencies appear to include poor work and time
management; a lack of attention to detail; poor operational skills; an inability to
plan and organise effectively; poor management and investigation of incidents;
and poor technical and professional knowledge.
ln the circumstances, l conclude that your conduct was contrary to section 7 of
the Police Act 1990, the Police Regulation 2015, and Points 1, 2 and 3 of the
NSW Police Force Code of Conduct and Ethics as set out above in relation to
Allegations 1 and 2.
Allegation 6
seriousness of the allegation, that you failed to prepare timely and / or
satisfactory criminal briefs of evidence in the matters of H, L and Hi...
In the circumstances, I conclude that your conduct was contrary to the s 7(e)
of the Police Act 1990, and cl 8 of the Police Regulation 2015 as set out above
in relation to Allegation 1, Points 2 and 3 of the NSW Police Force Code of
Conduct and Ethics as set above in relation to Allegations 1 and 2, the Brief
Preparation Guide, and the NSW Police Force Handbook.
………………………………………
Allegation 7
seriousness of the allegation, that on 7 December 2016 you:
• failed to include all relevant information reported to you by Ms A in
the CAD message, in particular that her ex-partner was the subject of
an ADVO; and
• chose to limit the information you recorded in the CAD message in
order to give the impression the matter was a 'property report'.
In the circumstances, I conclude that your conduct was contrary to the Police
Act 1990, the Police Regulation 2015, and the NSW Police Force Code of
Conduct and Ethics as set out above in relation to Allegation 1.
Furthermore, I conclude that your conduct was contrary to the Domestic and
Family Violence Standard Operating Procedures…
……………………………………
Allegation 8
seriousness of the allegation, that in your statement dated 13 December 2016
were untruthful, or at the very least misleading, when you stated:
• it was you who updated the CAD job at 10.19pm; and
• that you did so after checking COPS to confirm an enforceable order
was in place, in circumstances were a COPS audit shows that you did
not conduct the searches into Ms A and Mr M until 10.20pm and
10.22pm.
In the circumstances, I conclude that your conduct was contrary to s 7(a) of
the Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct
and Ethics as set out above in relation to Allegation 1.
Allegation 9
seriousness of the allegation, that during your record of interview on 3 March
2017 you were untruthful, or at the very least misleading, when you stated:
• About 10pm A contacted the station for the second time where she
gave me some more information. She told me that there was an AVO. I
then conducted checks to confirm that there was an AVO. I updated
the CAD job with that information.
In the circumstances, I conclude that your conduct was contrary to s 7(a) of
the Police Act 1990, and Point 1 of the NSW Police Force Code of Conduct
and Ethics as set out above in relation to Allegation 1.
…………………………………….
Allegation 10
After considering your response to this Allegation I am not satisfied that you
failed to promptly create the CAD message and I make no adverse finding in
that regard. However, I find that you did not obtain any details from the
informant.
In the circumstances, I conclude that your conduct was contrary to Point 2 of
the NSW Police Force Code of Conduct and Ethics as set out above in relation
to Allegation 1.
6 The Statement of Reasons continued as follows:
Response
In your Response, you refer to your family history highlighting that your father
and older brother are sworn officers in the NSW Police, and your mother is
civilian communications officer. You believe you would be an excellent police
officer, referring to your experience in the Royal Australian Navy. You state
you are a qualified mechanic.
You draw attention to the complimentary remarks you have received during
your career.
You submit that you made several mistakes that do not amount to misconduct.
You admit you did not give your full attention to your duties, and state the
content of the Notice does not represent a true view of your performance. You
state you have not been treated with respect in the handling of the complaint
investigations.
You attach to your Response three statements from current and former
colleagues. They say your conduct was out of character, and describe you as
a professional police officer who takes pride in his work.
You have provided two reports from Josephine Cannon, Counselling
Psychologist, dated 4 August 2017 and 10 December 2017. She reports that
you commenced psychological treatment with her on 30 March 2017 where
you presented with depression in the mild range. She reports that you began
to relate your policing experiences and the complaints against you. On 3 May
2017, she says your depression and anxiety was in the extremely severe
range. She advised your treating doctor that you possessed symptoms
consistent with posttraumatic stress disorder.
Consideration
As set out in the Notice, I am very concerned by your conduct as detailed
above. I expect the highest standards of behaviour from sworn officers of the
NSW Police Force and for all NSW Police Force officers to place integrity
above all. You have failed in that regard.
I expect you to understand the requirements of the NSW Police Force Code of
Conduct and Ethics and the need to always comply with it. You should clearly
understand your responsibilities under legislation, policies and procedures.
The findings I have made above demonstrate that you have failed in your
obligation to act with care and diligence when on duty, and demonstrate an
ongoing inability to abide by matters of fundamental importance.
In relation to Allegation 1, any officer who seeks operational assistance from a
colleague is entitled to expect that assistance will be promptly provided. This is
particularly the case where assistance is sought on an urgent basis. The
evidence shows there was a concern for a member of the public who was in
police custody. Indeed, on your own version you say you were told that a male
person was in custody and was attempting to tie a jacket around his neck.
I am dismayed by your decision to go outside for a cigarette rather than
provide immediate assistance. I take into account that you say you made a
grave mistake. I have considered your Response, in that you say you were
distracted from performing your duties and your conduct was out of character.
However, your conduct amounted to a neglect of duty and I do not accept that
you were so distracted from your duties that you did not understand the nature
of the request for assistance. I am satisfied that you have failed to uphold your
oath of office to discharge your duties faithfully.
In relation to Allegations 2, 3, 4, 5, 6, and 7, I find that you have repeatedly
failed to act according to the minimum standards of diligence and commitment
reasonably expected from a professional police officer. You have repeatedly
failed to comply with basic NSW Police Force policies and procedures.
In relation to Allegation 2, your inability to follow basic process is
unacceptable. It is incumbent upon you to ensure you are aware of the
policies, procedures and guidelines that govern your duties. As you should be
well aware, the NSW Police Force is committed to reducing incidents of
domestic violence. There are clear policies and legislation in place regarding
the service of AVO applications.
I have considered your Response and I remain alarmed that you believed you
could serve the document on a third party. As a minimum, l would expect you
to realise your error when you recorded that you served the application
personally, knowing this was not the case. Instead, you have falsified the
service record. In your Response, you fail to demonstrate any insight into your
behaviour and blame the use of a pro-forma statement of service. However,
this should have further highlighted to you that you had not personally served
the document. Even on your own account you should have immediately taken
steps to remedy the actions you took. Instead, you were happy for the
statement of service to reflect false information.
Regarding the circumstances that give rise to Allegation 7, you have omitted
critical details from the CAD message. I do not accept that you were not told
about the existence of an ADVO. I accept Leading Senior Constable Gates
spoke to you about the omission of this fact and you told her it made the CAD
job easy to write off. Indeed, Sergeant Hallam also heard you say this. Your
conduct adversely impacted upon response times, and could have placed a
person protected by an ADVO at risk. I accept that your original CAD message
described a domestic type situation. Nevertheless, your behaviour in not
stating an ADVO was in place is unacceptable.
A failure to comply with such basic procedures has the potential to cause
serious detriment both to vulnerable persons, as well as to the reputation and
integrity of the NSW Police Force.
Your approach in relation to Allegation 4 adversely impacted upon the
administration of justice. Not only did you select an incorrect charge, the
matter became statute barred. I take into account that you did make a number
of enquiries throughout the investigation. However, you did not follow all the
advice and guidance that was provided to you, such as making an application
to interview the person of interest yourself. The evidence shows that you have
failed to act according to minimum standards of diligence and commitment
reasonably expected from a professional police officer.
Allegations 5 and 6 also demonstrate that you lack the skill and attention to
detail required to perform the most basic tasks. I do not accept your assertion
in your Response that you were not afforded the opportunity to improve your
competence and performance. I take into account that you say you were
occasionally able to function to the required standards and I understand that
you say your failings are partly a result of your reaction to your own conduct as
set out in Allegation 1.
However, I am satisfied every effort has been made to assist you reach and
maintain the expected standards of competence and performance. You were
provided with the assistance of several officers, each of whom put in every
effort to assist you improve. I take into account the feedback from your
colleagues and supervisors. You were spoken to on many occasions and
advice and assistance was both given and offered. Despite this, you have
failed to reach and maintain the standards required.
I take into account your assertion in your Response that you do not feel you
have failed over a lengthy period. However, your conduct as set out above
occurred throughout 2016. I am satisfied that you have consistently failed
during that period to meet the standards expected of a sworn police officer.
Ensuring that the NSW Police Force maintains the confidence of the public is
one of the highest priorities. There are very real and practical dangers in a
police officer not being able to properly prepare a brief of evidence, or
satisfactorily and accurately record the incidents they are involved in. The
evidence suggests that you lack the competence to be police officer.
Allegations 8 and 9 show you have repeatedly provided false or misleading
information. I have considered your Response and your contention that you
assumed you had created the updated CAD message. While I accept that the
message was updated under your profile, the evidence demonstrates that the
message was created by Leading Senior Constable Gates and not you. I do
not accept that when you drafted your statement six days after this incident
you believed you had taken and created the updated message.
Your actions show you tend to be less than fully frank, or at the very least
misleading, in your communications. As a police officer, you should be acutely
aware that the public are entitled to expect that you will behave honestly, and
with care and diligence in the performance of your duties. The proper
performance of your duties requires the highest standards of integrity and it is
critical when dealing with members of the public, your colleagues, and
allegations of criminal activity. In the circumstances, I am unable to rely upon
your integrity as a police officer if you were to perform policing duties in the
future.
In relation to Allegation 10, after considering your Response, I make no
adverse finding regarding the time taken to place the job on COPS.
Nevertheless, you failed to take details of the informant and I consider this is
another example where you have failed to act with care and diligence.
You have repeatedly failed to follow NSW Police Force policies and
procedures, and failed to always comply with the NSW Police Force Code of
Conduct and Ethics. Your actions demonstrate a lack of understanding of your
obligations as a sworn member of the NSW Police Force. In 2014, when you
were a Probationary Constable, you were served with a Warning Notice
following findings that you neglected your duty and entered false information
on the COPS. This should have put you squarely on notice of the standards of
conduct expected. Given your prior history, and your repeated failures, I do not
accept your conduct is out of character.
I have carefully reviewed all the material associated with this matter, and have
considered the character evidence you have provided. I have considered the
reports of Ms Josephine Cannon, Counselling Psychologist. I accept policing
can be challenging. However, I am not satisfied that your psychological state
justifies your behaviour, or caused you to act in the manner that you did.
I also take into account the complimentary remarks, and the details of your
career history within the NSW Police Force, as supplied by you in your
Response. However, given the magnitude of your misconduct and the extent
of your failings, I see no additional mitigation or reason for your actions that
would provide me with any basis not to lose confidence in your suitability to
remain a police officer.
I expect and the law demands that NSW Police officers will uphold their
solemn Oath of Office at all times. Our Oath requires all NSW Police officers to
act professionally at all times, with ethics and integrity, and in accordance with
the law. This is our sworn duty.
I want you to clearly understand, and I cannot stress too strongly, that I expect
an appropriate standard of behaviour from all police officers and I expect them
to adhere to the expectations of ethical and professional conduct, whether it is
on or off duty. You have clearly breached the NSW Police Force Code of
Conduct and Ethics.
I therefore exercise my statutory responsibility and make a determination that I
do not have confidence in your suitability to remain a member of the NSW
Police Force. I therefore remove you from your position as a police
officer.
Background
7 The applicant joined the NSW Police Force in September 2011. At the time, his
father and one of his brothers were serving police officers. His mother was
working as a Civilian Communications Officer in the Police Force.
8 The applicant completed his initial training in August 2012 and was posted to
Wagga Wagga police station as a General Duties Officer.
9 On 18 August 2014 the applicant was issued with a Commander’s Warning

Notice pursuant to subsection 173(2)(d) of the Police Act following findings that
he entered false information into the COPS database and that he had
neglected his duty by not following recommendations made by supervisors to
conduct a number of investigative enquiries.
10 The applicant completed his period as a Probationary Constable on 21 August

2014.
11 On 17 April 2015 whilst on duty, the applicant, together with Senior Constable
Kaye-Mahon, attended a fatal multi-vehicle collision on the Sturt Highway near
Yarragundry. An 18-year-old woman was killed in the collision. There was a
baby seat in the back of the car and the police officers thought that a baby had
been ejected during the collision and was lying, perhaps alive and injured,
nearby. The applicant participated in a line search but no baby was found. The
applicant then went to the hospital and guarded the body of the dead woman
until her identification was finalised. The applicant claimed that he had been
badly affected by this experience.
12 Following complaints against the applicant during 2016 which would ultimately
form the basis of the removal of the applicant from the NSW Police Force, he
was suspended on full pay from 28 December 2016.
13 The applicant commenced seeing Josephine Cannon, Counselling

Psychologist, on 30 March 2017 and was diagnosed as suffering symptoms
consistent with the presentation of Post Traumatic Stress Disorder (PTSD).
14 In his response to the section 181D notice containing the 10 allegations against
him the applicant:
• admitted Allegation 1 and sincerely apologised for his behaviour;

• admitted Allegation 2 and apologised for his behaviour;
• denied Allegation 3;
• denied Allegation 9; and
• denied Allegation 10.
15 The applicant did not accept that the allegations which he admitted constituted
misconduct. The applicant also claimed that, due to having been suspended
and factors relating to the complaints against him, he had been assessed by
his General Practitioner and Psychologist as suffering from PTSD symptoms
and anxiety. He supplied the respondent with two reports from his treating
psychologist.
The Warning Notice – August 2014

16 As stated at [9] above, on 18 August 2014 the applicant was issued with a
Warning Notice. At the time the applicant was still a Probationary Constable.
He was warned that any serious misconduct in the future could result in further
management action, including removal from the NSW Police Force.
17 Although no direct evidence was led by the respondent as to the circumstances

which led to the issuing of the Warning Notice, it was referred to in the
respondent’s Statement of Reasons and in the evidence of Inspector McLay.
18 It was submitted on behalf of the applicant that the issuing of the Warning
Notice was non-reviewable action and he denied that he deliberately falsified
records or that he created inaccurate records with any intent to mislead or
deceive. The applicant’s submission stated:
81. In this case, given the absence of evidence from the respondent that would
enable the Commission to form a view about the reasonableness of the
warning notice and the facts and circumstances grounding it, it was
procedurally unfair and is now unfair on the merits review for the respondent to
rely upon the prior conduct and prior warnings in the notices as supporting the
applicant's removal. It is significant that the applicant's evidence going to the
disputed facts grounding the issuing of the warning notice is not contested.
82. The respondent should not be permitted to rely on the warning notice to
any extent but particularly to support a submission to the effect that the
applicant had a history of:
a. Entering false information into COPS; or
b. Neglecting his duties.
19 I agree with this submission. In doing so I note that little, if any, weight appears
to have been placed on this matter by the respondent in coming to the decision
to remove the applicant from the force. I also note that three days after the
Warning Notice was issued to him, the applicant was, on 21 August 2014,
confirmed as a Constable.
20 In my consideration of this matter, I have placed no weight at all on the fact that
the applicant was issued with a Warning Notice on 18 August 2014.
The Allegations
21 I propose to deal with each of the allegations against the applicant in turn,
setting out the finding made by the respondent, a summarised version of the
applicant’s case and the case for the respondent. In addition, I will set out my
own findings with respect to the disputed matters in relation to each of the
allegations.
Allegation 1
22 The respondent’s finding in relation to Allegation 1 was:

seriousness of the allegation, that on 31 March 2016, after receiving a call for
assistance from a senior colleague to assist with a person who was in custody,
you went for a cigarette (smoke) before attending the custody room.
The case for the applicant
23 The applicant admitted this allegation and stated that he regrets his inaction
and has been agonising over his casual attitude. He claimed that it was
completely out of character for him to have acted in this way. He also gave
evidence, which was supported by his wife Tamara, that his domestic
circumstances at this time had “deteriorated badly”.
24 The applicant claimed that, at the time of the call from his colleague, he
understood that she was only asking for someone to assist or help her in the
custody room. In his witness statement (exhibit 1) the applicant stated:
78. At the time of the call I understood Senior Constable Harmer was only
asking for someone to assist or help her in the custody room. I did not
understand her to be asking for urgent or immediate assistance. l did not
understand her to be asking me to call for an ambulance or that one was
needed.
25 The applicant further stated:
80. l thought I would have enough time to have a smoke prior to attending the
custody room, as I did not consider there was any urgency in the call.
26 Exhibited to the applicant’s witness statement was a written report prepared by
the applicant on the day after the incident, 1 April 2016. Extracts from this
report are set out below:
About 4.30pm, I spoke to Senior Constable Harmer on the phone. She said
that a male in the custody room was attempting to tie his jacket around his
neck. I said that I have no further pressing work and would attend the custody
room shortly, which she agreed to.
I collected a copy of an ADVO and walked to the main station area and told
the station GASO Clair, that a female would be attending shortly and that she
was to be served the AVO. As I was walking out of the station area, I said
towards the shift supervisor Sgt Huggett, ‘I think that someone is playing up in
the custody area’ I do not know if he heard me when I said this.
I then went outside to the rear car park area and had a smoke….
I realise in my actions that and following the conversation that I have had with
Sgt Huggett, that I put the safety of my fellow officer and the health of a person
in custody at risk. I have no explanation for my actions other then, I made a
grave mistake of the situation and I did not respond correctly to the request. I
have made a serious error in my actions, I should have notified the shift
supervisor of the incident and attended the custody room immediately.
27 Also exhibited to the applicant’s witness statement was a report of Sergeant
Paul Huggett which was prepared on 2 April 2016. That report contained the
following record of a conversation between the applicant and Sergeant Huggett
which occurred the previous day:
Todd stated similar to; ‘Nicole rang up and told me that a person had or was
attempting to hang himself in the charge room and that she needed assistance
to check on him’.
I said, ‘What did you do then’
Todd said, ‘I went outside for a smoke’.
I said, ‘Talk me through this decision to help me understand why you went for
a smoke instead of helping your mate out in the charge room’
Todd said, ‘I just didn’t think it was that serious, so I went for a smoke’
I said, ‘how long were you outside for?’
Todd said, ‘Only a couple of minutes’
I said, ‘Have you ever been in a fight by yourself for a couple of minutes,
waiting for backup? How long did that feel?’
He said, ‘Yep, a couple of hours’
I said, ‘is there anything going on in your life internal or external to the
organisation affecting your decisions?’
He said, ‘No’.
28 The applicant’s witness statement contained the following:
85. According to Sergeant Huggett’s report in my discussion with him about

the incident, I told him that during the phone call from Senior Constable
Harmer she told me that a prisoner was attempting to hang himself in the
charge room and that she needed assistance to check on him.
…………………………..
87. In my report, I stated that during the phone call Senior Constable Harmer
stated that a male in the custody room was attempting to tie his jacket around
his neck.
88. I was very distressed and shocked by the situation as I knew that I was
being blamed for the delay in providing urgent help or assistance because that
was what was being talked about. I felt shattered and my confidence was
significantly eroded. I couldn’t understand what was happening to me.
89. The situation is that I do not remember exactly how or when I first heard
that the person in custody was trying to tie something around his neck. I have
set out above what I believe I was told on the telephone by Senior Constable
Harmer.
90. I believe that if I was told that a person in custody was trying to tie
something around his neck or otherwise self-harm I would have told Sergeant
Huggett immediately after I hung up the telephone and, I would have treated
the need for help or assistance as being of utmost urgency.
29 The applicant’s witness statement then set out the material which he had
reviewed relating to this incident, including CCTV images of the custody room
for 31 March 2016 as well as a report prepared by Senior Constable Harmer
dated 7 April 2016 and the Custody Record for the prisoner that was made by
Senior Constable Harmer to record her contemporaneous observations of the
prisoner. The applicant’s witness statement then continued as follows:
92. As a result of my review of the material referred to in the preceding

paragraph, I now question whether or not the incident involving the prisoner
that had attempted self-harm and was unconscious on the floor occurred
before or after I spoke to Senior Constable Harmer. I raise this because if it
occurred after my phone call it gives context to my decision that there was
time for me to have a cigarette and that the request for assistance was not
urgent. I know for certain that I would not have made a conscious decision to
refuse or ignore the request for help. I made an error of judgment by giving
priority to me having a smoke over attending the charge room.
93. I continue to admit the allegation. I failed to respond immediately to the
request for assistance and I have a cigarette before attending the custody
room. I accept that having a smoke no matter what the urgency of the request
for help was unacceptable.
30 The applicant then went on to describe difficulties he was experiencing in his
domestic life and stated: “With my personal life at home at the time, I can only
say that I was extremely distracted from performing my duties”.
The case for the respondent

Leading Senior Constable Shaw (formerly Harmer)
31 Annexed to the affidavit of Leading Senior Constable Shaw was a report
prepared by her on 2 April 2016, which contained the following:
On Thursday 31 March 2016 I was conducting duties as custody manager at

Wagga Police Station. Throughout the day there were a number of prisoners
held within the cell.
In the afternoon I heard a loud thud come from the direction of cell 1 where
prisoner D was lodged. I looked on the monitor and saw D was lying on the
floor and not moving. I went to the cell door and called out to D who was not
responding. He was moaning slightly. I was hesitant to enter the cell as D had
just previously had a violent outburst.
I made a telephone call to the supervisor’s office to request an ambulance and
urgent assistance.
Constable Todd answered the telephone. I said to Constable Todd, “Toddy,
call an Ambulance. I need urgent assistance. I’ve got a guy that’s just
collapsed and I need someone to enter the cell with me.” I believe he said, “I
will come down.”
I continued to monitor D at the door of the cell and call out to him. After at least
two to three minutes Constable Todd had not arrived at the cell complex so I
called the supervisors office again. Sergeant Huggett answered the phone and
I said, “I need assistance down here to go into this guy that’s collapsed and
has an ambulance been called?” He said, “I thought Toddy was down there
with you. Where is he?” I said, “I don’t know, I thought he was coming.”
Sergeant Huggett said he would come straight down.
Within less than a minute Sergeant Huggett came into the cell complex
followed by a number of other Police. D was removed from cell 1 and placed
into dock 1. After this occurred I saw Constable Todd walk into the cell
complex. I could smell a strong smell of cigarette smoke on him and believed
that he had been smoking directly prior to entering the cell complex.
32 After reviewing the CCTV footage of the custody room for 31 March, Leading
Senior Constable Shaw prepared a further report on 7 April 2016, which
contained the following:
At around 16:50 hours I became concerned about the welfare of the prisoner
in cell 1 as he was continually calling out he was unwell and no one cared etc.
At 16:59 hours I made a phone call. I believe this call was made to the
Supervisors Office which Constable Todd answered. I reported to him that I
required assistance with the prisoner in cell 1. I may have also reported my
ongoing concerns regarding the prisoner in cell 3.
During this time I could hear verbal noises from prisoner 1. He was calling out
that no one cared; he shouldn’t be locked up etc. I believed he had been lying
down for a period of this time. During this time I was also monitoring prisoners
in cells 2 and 3 from the electronic monitors. My attention was drawn to the
prisoner in cell 3 as he had previously just attempted self harm.
At 17:04 I made a further phone call to the Supervisors Office as the prisoner
in cell 1 was now not verbally responding and was lying in a position in the cell
on the floor where I could not see him properly. I believe it was during this call
that Sergeant Huggett answered and I asked where assistance was and had
an ambulance being called.
33 In her affidavit, Leading Senior Constable Shaw stated:
14. A male prisoner was secured in cell number 1 (Prisoner D). During the
day, Prisoner D had been yelling and screaming, repeatedly falling to the
ground and claiming he was unwell and required assistance. When the door to
the cell had been opened earlier in the day, Prisoner D had demonstrated
violent behaviour towards another police officer.
15. For the reason set out at paragraph 14 above, I was not prepared to enter
prisoner D’s cell alone. When I determined that prisoner D required
assistance, I immediately called the Supervisor’s telephone as there was
usually a Supervisor sitting at the desk. Mr Todd answered the call (First
Call).
16. When I made the First Call, I believe I told Mr Todd that I required urgent
assistance. When Mr Todd said words, to the best of my recollection, “I will
come down”, I formed the view that Mr Todd was on his way immediately to
join me.
………………………….
21. I have read the Statement of James Todd filed in these proceedings (Todd
Statement).
………………………….
23. In relation to paragraphs 78, 80 and 92, I say that I made it clear to Mr
Todd during the First Call that I required urgent assistance. I do not agree that
based on the words I stated to Mr Todd during the First Call that it was
reasonable for Mr Todd to conclude that my request was not urgent.
24. In relation to paragraphs 85, 87, 89 and 90, I deny that I stated to Mr Todd
during the First Call that a prisoner was attempting to hang himself. I did not
say that to Mr Todd because as described at paragraphs 14 and 15 above, I
required the urgent assistance to attend to Prisoner D.
34 Leading Senior Constable Shaw was cross-examined extensively as to what
she said to the applicant during the phone call she made to him at 16:59 on
that day. She was shown the CCTV footage from the custody room and
questioned as to her actions both before and after she made that first call.
Ultimately, Leading Senior Constable Shaw conceded that it was possible that
the need for urgent assistance had not arisen at the time she made the phone
call to the applicant. During her cross-examination, the following exchange
occurred:
Q. Do you agree that it is possible, as a consequence of you agreeing that it

was possible that the need for the ambulance had not yet arisen at the time of
the first phone call, that it is possible that the urgent need for assistance had
not yet arisen at the time of the first phone call?
A. I agree.
Q. Do you also agree that it is possible that, at the time of making the first
phone call, having agreed that it is possible that the need for the ambulance
had not yet arisen, having agreed that it's possible that the need for urgent
assistance had not yet arisen, that it is possible that the guy that you referred
to as having just collapsed, being Prisoner D, had not yet occurred at the time
of the first phone call?
A. I agree.
……………………………..
Q. Do you agree with me that it is possible that you did not, at the time of
making the first phone call, yet, at that time, need to enter the cell?
A. I agree.
Q. Do you then agree with me that it is possible that you did not tell Mr Todd
the words that you have in your document, which is NS1, which I will read to
you, and I am asking you if it's possible. I'm not accusing you of anything
other.
A. Okay.
Q. It is possible that you did not say to Mr Todd, "Toddy, call an ambulance. I
need urgent assistance. I've got a guy that's just collapsed and I need
someone to enter the cell with me." It's possible you did not say that?
A. It is possible, yes.
Q. What also is possible is that what you conveyed to Mr Todd is that you
were busy and you needed him to come down to give you a hand in the
custody room, isn't it?
A. That is possible, yes.
Findings with respect to Allegation 1
35 My findings with respect to this allegation are that the applicant received a
phone call from Leading Senior Constable Shaw at 16.59 requesting his
assistance in the custody room. I accept that the applicant did not understand
that Leading Senior Constable Shaw was asking for urgent assistance or that
she wanted the applicant to call an ambulance.
36 Instead of going immediately to assist Leading Senior Constable Shaw, the

applicant, instead, went outside for a cigarette and did not arrive at the custody
room until 17.06, after other officers had attended to assist Leading Senior
Constable Shaw with moving two prisoners from their cells.
37 Despite my acceptance of the applicant’s claim that he was unaware that

Leading Senior Constable Shaw was asking for urgent assistance, I share the
respondent’s dismay at the applicant’s decision to go outside for a cigarette
before going to the custody room some 5-6 minutes later. Like the respondent,
I am also of the opinion that, by his actions, the applicant failed to uphold his
oath of office to discharge his duties faithfully.
38 I am unable to accept that the applicant’s unhappy domestic situation at that

time had any causal connection with his conduct on this occasion.
39 If this were the only matter raised in support of the respondent’s decision to
remove the applicant from the NSW Police Force, I would be inclined to regard
that removal as harsh. However, as will be seen from what follows, that is not
the case in this matter.
Allegations 2 and 3
40 The Respondent’s findings in relation to Allegations 2 and 3 were:

seriousness of the allegation, that you failed to personally serve an Application
for an Apprehended Domestic Violence Order on Mr C.
seriousness of the allegation, that you falsely recorded in the Statement of
Service that you had personally served Mr C in circumstances where you had
left the Order with another person.
41 The applicant has admitted Allegation 2 but denied Allegation 3.
42 Allegation 2 concerned the applicant effecting service of an application for an

Apprehended Domestic Violence Order (ADVO). When the applicant attended
an address to serve the application on the defendant, Mr C, he spoke to Ms S
who confirmed that Mr C resided at the location but was not there at the time.
The applicant handed the document to Ms S and explained that it was an
application only. Ms S agreed to give it to Mr C.
43 The applicant claimed that he was under the mistaken belief that he was able
to serve an application for an ADVO on a third party over the age of 18 at the
residence. He based this belief, in part, on a form that was circulating within the
Wagga Wagga Police Station. That form contained the following:
STATEMENT OF SERVICE
Applications for Apprehended Violence Orders
I have served on …………………………………
of ………………………………....
A copy of this [ ] Application for an Apprehended Violence Order
[ ] Application to Vary/Revoke an Apprehended Violence Order
At [ ][ ] / [ ][ ] am/pm on [ ][ ] / [ ][ ] / [ ][ ] (dd / mm / yy)
Method of service [ ] in person
[ ] giving a copy to ………………………………...
(Other person over 16 years)
at ……………………………………………………….
(Actual address of service)
Being the [ ] Principal place of residence
[ ] Principal place of business/work
[ ] OIC and Name of Corrective Services Centre…
……………………………………
44 In his witness statement the applicant stated:
122. In the method of service section, the form enables a box to be ticked for
service "in person" or "giving a copy to other person over 16 years" at a
specified address "being the principal place of residence or principal place of
business or work of the defendant".
123. I had never used the form by writing information on it and submitting it,
because the computer system for recording the service of documents was
being used. However, I was aware of the form and its content and I thought it
was accurate with respect to the way of serving AVOs (and although the form
did not state so also ADVOs). I did not understand that to be a difference in
the method of effecting service of AVOs and ADVOs. I believe the form
applied to both applications.
124. I observed the form in the file used by police officers, along with victim
notification letters and case file cover sheets. I did not appreciate that I was
doing anything wrong and I did not check with anyone to make sure I was
doing things correctly.
45 In relation to Allegation 3, the pro forma electronic document which the
applicant actually completed contained the following:
STATEMENT OF SERVICE
I have served on C
at (address)
A copy of this NON-URGENT AVO APPLICATION
…………………………
Served at 16:30 PM on 03-May-2016
Method of service [/] in person
[ ] as directed by the court
………………………..
46 In explanation of why the applicant ticked the “in person” box on the form, the
applicant stated:
112. The difficulty I encountered was that the Statement of Service is a pro
forma electronic document that does not allow any variations to be made. I
accept and admit that I inserted in the (pro forma) Statement of Service that
the ADVO was personally served on C (and not S).
47 However, the applicant went on to state:
113. It was my understanding that the application for ADVO was served on C
by S saying that she would make sure he got it. Whilst this was not on the
Statement of Service I did state how I had served the ADVO on S in the
Consolidated Notice History, which enabled me to insert information in the
form of a narrative.
114. A copy of the Notice Summary - Consolidated Notice History report
generated from the computer is at page 57 of JT-1. The information entered
on 3 May 2016 at 16:30 hours was inserted by me. There I stated "Served to S
of (address). S stated that POI resides at the location and will provide POI with
ADVO". The words "POI" means "person of interest" which was my reference
to C.
115. It was my lack of knowledge that I was supposed to serve the ADVO
personally on C that brought about this inserting of incorrect information.
However, it was not my intention to falsify police records with any intention to
mislead or deceive. I did not know that I had not served the ADVO properly
and I did not know that I was inserting information in the statement of service
that was incorrect. I was merely trying to fill in the pro forma document in the
way it forced me to do. I noted in the narrative how in fact I had served the
ADVO. I was not trying to hide or conceal anything about the way I believed, at
the time, l had properly served the ADVO.
48 The following submissions were put on behalf of the applicant:
107. The applicant obviously accepts and admits that the information
contained in the electronic document was incorrect as he ticked the personal
service box, but to the extent that the respondent relies upon the allegation as
anything beyond the mere fact that the ticking of the box was an incorrect
statement of fact the allegation is denied.
108. The applicant denies the allegation on the basis that he deliberately
falsified records or that he created records with any intent to mislead or
deceive…
109. The following submissions are in addition to the submissions made
regarding Allegation 2.
110. The applicant thought he was explaining himself by putting the actual way
that the application had been served in the narrative section of the electronic
pro-forma on the court notices system… In doing so he typed in the electronic
form:
"... served to S of (address). S stated that the POI [person of interest]
resides at the location and will provide POI with the ADVO."
which is what is relied upon as the "falsity"…
111. The applicant's evidence is consistent with him being intent on qualify the
rigid electronic tick-a-box pro forma field by correcting the way of service in the
narrative field to make sure he correctly explained how the service was carried
out, which is consistent with honesty rather than dishonesty…
112. In cross-examination Inspector Mclay's evidence is that:
Q. There is a section on there that has an entry made by Mr Todd in
relation to his service of the document, isn't there?
A. Yes.
Q. Could you read out what is stated in that form?
A. On 3 May 2016 at 16.30 the entry appears to be:
"Made successful service, James Michael Todd, served to S at
(address). S stated that POI resides at the location and will
provide POI with ADVO. Attempted to contact LS, POI’s
mother'', on a phone number, "No answer."
Q. Having made the concession in relation to your confusion, and
understanding that Mr Todd may well have been confused about the
form which I took you to earlier, in relation to the service of applications
on third parties, you would agree that it is understandable that he
would make that entry in the electronic record, wouldn't you?
A. Yes.
113. It is submitted that the evidence supports that the applicant made an
honest mistake in circumstances where he believed he had carried out valid
service and in those circumstances his is not guilty of falsifying the record.
49 The respondent’s position with respect to Allegation 2 is set out at [6] above.
50 Inspector McLay gave the following evidence:
Allegations 2 and 3
15. I became aware of the incidents forming Allegations 2 and 3 against Mr
Todd in my role as Professional Standards Duty Officer. Leading Senior
Constable Gates came and saw me in relation to Mr Todd's failure to serve an
Apprehended Domestic Violence Order (ADVO) correctly.
16. On 3 May 2016, Mr Todd served an ADVO by handing it to a person other
than the named respondent. This is not the correct method for the service of
ADVOs. An ADVO must be served personally on the named respondent.
17. At paragraphs 121 and 122 of the Todd Statement, Mr Todd suggests that
a form circulating the Wagga Wagga Police Station suggested that service of
an ADVO could be done by "giving a copy to another person over 16 years.”
Mr Todd exhibits this form at page 58 of JT-1. I have reviewed the form at
page 58 of JT-1. That form relates to the service of applications for
Apprehended Violence Orders not to the service of an ADVO itself.
18. The Statement of Service that Mr Todd filled out is annexed to this affidavit
and marked “PM-2” That form only contains two check boxes in relation to the
method of service:
a. in person; or
b. as directed by the Court
Mr Todd has checked "in person".
19. The Statement of Service is obviously not correct because Mr Todd did not
serve the ADVO in person. If Mr Todd was not aware of the proper method for
serving an ADVO, he should have asked for assistance. To the best of my
knowledge, he did not do so.
20. Not correctly serving an ADVO may mean that the victim, or person in
need of protection, is not adequately protected, or does not have the
protection of the ADVO until it has been served correctly. This obviously
creates an unnecessary risk to the safety of the victim.
21. For the purpose of preparing this affidavit, I have read the report that Mr
Todd submitted on 7 September 2016 in relation to this incident. A copy of that
report is annexed and marked "PM-3" (7 September Report). At paragraph
120 of the Todd Statement, I understand Mr Todd to be saying that he could
not locate the defendant for service.
22. Under the heading “Comment" of the 7 September Report, Mr Todd states:
During the conversation with S, I was informed that C resided at the location
and would be returning that afternoon.
Mr Todd should have arranged for the ADVO to be served personally that
afternoon, it was not that he could not locate the defendant as suggested in
the Todd Statement.
Findings with respect to Allegations 2 and 3
51 I accept that the applicant made an honest mistake by leaving the application
for the ADVO with S rather than serving it personally on C. Some responsibility
for that mistake lies with the misleading Statement of Service form, part of
which is set out at [43] above, which suggests that service of an application for
an AVO may be effected by giving a copy to a third party.
52 In relation to the applicant ticking the “in person” box on the Statement of
Service form which he actually completed, part of which is set out at [45]
above, it is not my finding that applicant was being deliberately dishonest. He
made it clear that he had left the application with S in the Consolidated Notice
History report which he generated (see paragraph 114 at [47]). However, at the
very least the applicant should have sought advice from a colleague before
ticking the “in person” box on the Statement of Service form which he
completed knowing that this was incorrect.
Allegation 4

seriousness of the allegation, that you should:
• not have charged Mr H with an offence under s 527C(1)(a) of the
Crimes Act 1900;
• have charged Mr H with an offence under s 527C(1)(c) of the Crimes
Act 1900; and
• have filed the Court Attendance Notice with the Local Court prior to 3
December 2015, and before the six-month limitation date.
I find that your alleged conduct has resulted in the matter becoming statute
barred and the prosecution failing.
I further find, on the balance of probabilities, although having regard to the
seriousness of the allegation, that you failed to properly investigate the matter.
In particular, you:
• did not seek assistance regarding the appropriate action to take
against the person of interest; and
• failed to follow the guidance provided to you to interview the person
of interest yourself.
54 The applicant has admitted this allegation.
55 The applicant’s witness statement contained the following:
Allegation 4 - May 2015

127. On 26 May 2015, I received a generated Case through Police Link with
the reference C57743904.
128. I initially actioned the Case by updating the Case Narrative... I noted in
the narrative that the victim was identified as G…
129. Due to the limited information received, I commenced my investigation by
requesting the victim attend the Wagga Wagga Police Station and complete a
statement… I updated the narrative.
130. G indicated that his unregistered motorbike was stolen, and he had seen
a male person riding his bike. G received information that the male riding the
bike goes by the name of "Little boy" or "Shorty". Also, that the male was now
on remand at Junee Correctional Facility.
131. On 21 July 2015, due to the motorbike being unregistered I located and
attended the address of the previous owner S. I obtained a statement from the
previous owner indicating G purchased the bike and supplying the Vehicle
Identification Number to identify the motorbike, as part of my investigation.
132. During the investigation I conducted checks with intelligence officer
Shantelle Slaws, from Junee Correctional Facility. She told me that a male that
goes by the nickname "Shorty" had been charged by other police (Senior
Constable Owen) and was on remand for charges in relation to riding a
motorbike.
133. The information Slaws provided indicated that H or "Shorty" as he is
known (H) was my person of interest. I competed checks on H as part of my
investigation and identified that the motorbike that he was riding at the time of
the offence was owned by the victim G.
134. I approached Senior Constable Owen, and informed him that I had
received information that the motorbike was reported stolen, shortly after the
pursuit he was involved in. I had a conversation with Senior Constable Owen,
asking him if he wanted to charge H with a further offence of stealing the
motorbike. Senior Constable Owen told me that I should place a charge of
Goods in Custody against H myself.
135. On 4 June 2015, as a result of speaking with Senior Constable Owen I
updated the Case with the information that H was identified as the person of
interest.
136. I then had a Case Review with Sergeant Huggett, I was given instructions
to notify the owner of the motorbike and request a job from Senior Constable
Owen stating, "Put in a job for a statement from Con Owen re location of bike
and finding the POI riding it."
137. On 15 June 2015, I requested a job via my Case Management System for
Senior Constable Owen to provide me with a statement in relation to the
pursuit and identifying H as the rider of the motorbike. I received the statement
on the 16 July 2015 and updated my Case.
138. On 25 July 2015 I placed a job on my Case Management System to
request police from Junee to attend the Junee Correctional facility to ask if H
wanted to be interviewed in relation to the two offences of goods in custody
and stealing. I created job (J2406083) in the Case requesting Junee police to
"... attend the correction centre and offer H the chance to be interviewed." ... "If
H wishes to take part in a recorded interview with police, police will arrange
interview at the Wagga Wagga police station." …
139. The job request went straight to supervising Sergeant Nix at Junee. It
was my intention that Junee police only speak H to determine if he wanted to
participate in a police interview and, if affirmative, I would take charge and
arrange for H to be brought to the Wagga Police Station where I could
interview him.
140. Sergeant Nix and Senior Constable Hall spoke in relation to the job and
requested more information to provide a successful and accurate outcome
and, on 21 August 2015 the job was returned to me requesting further
information.
141. On 28 August 2015, I created a second job (J2362526) in the Case
Management System requesting a further interview of H… In the job
description I clearly outlined the details of my matter and how H was brought
under police attention via a police pursuit. I also allege of how H became in
possession of the motorbike and my intention to charge H with a goods in
custody charge.
142. On the 1 September 2015 Detective Sergeant Fletcher places a
"resubmit" on the job. The nature of this resubmit is unknown to me. I again re-
stated in the job.
143. On 4 September 2015, Inspector Mclay added the following Case
Comment:
"We do not send Junee Police to the Goal to interview an inmate. You
need to make a Section 25 application get the POI brought to Wagga
Police Station to interview him yourself. Make sure this is on a
Tuesday the you are working day shift. If you need to change a shift to
make this happen speak to you Supervisor or a DO."
144. On 22 October 2015 Senior Constable Hall of Junee police spoke to H
and took it upon himself to speak to him about the allegations. H agreed to be
interviewed which is all that I wanted to know because I wanted to take over
the interview from there. The difficulty was that Senior Constable Hall went on
and interviewed H about the substance of the allegations and concluded in the
narrative of the job that:
"... I do not believe the inmate wants to be interviewed to offer
admissions or deny the allegations. I believe he wants to be
interviewed to toy with police and allege that investigating Police just
want to 'pin' more charges on him."
As a result, I was denied the opportunity of interviewing H myself to see if he
wanted to make any admissions in relation to the offence.
145. On 26 October 2015, shortly after receiving the completed job request
from the 23 October 2015 interview of H, I completed and submitted charge
H59035514 to be verified.
146. I submitted the charge on 26 October 2015 as I was waiting on and had
only received the required information from Senior Constable Hall about H not
wanting to be interviewed shortly prior to that date.
147. I nominated the date 26 April 2015, as the date of the goods in custody
offence as being the end of the time frame that the motorbike was stolen from
his house. In his statement he stated that the bike was stolen sometime
between 9:30 am on 23 April 2015 and 6 pm on 26 April 2015.
148. I now know the need for suspicion of the goods themselves at the time of
the offence and not at a later point in time. I believed that as police had spoken
to him after the pursuit and he had the bike at the time I believed I had the
evidence to proceed with the goods in custody charge.
149. I could have nominated the date that Senior Constables Owen of the
Highway Patrol seized G's motorbike during their pursuit of the rider which
occurred on 5 May 2015 (rather than the earlier date of 26 April 2015 which I
nominated).
150. I now know that for the offence of goods in custody to succeed, Senior
Constables Owen needed to have a suspicion that the motorbike H was riding
during the pursuit was stolen or otherwise unlawfully obtained at the time H
was arrested. The difficulty remains that they could not have known this
because G did not report the bike was stolen until 7 May 2015.
151. On 26 April 2015, I was under the belief that at the time the charge is
verified, and a court date is set for the defendant to appear that that is the end
of the charging process. Also, at the time I submitted the charge and asked
Sergeant Gray to verify the charge, I believed that once the charge was
verified and submitted to Court Process that time stops running for the
purposes of the statutory limitation period.
152. I now know that the Court Attendance Notice was not sent to the Court for
filing but was filed in Court on 3 December 2015 well outside of the 6-month
statutory limitation period.
153. The Respondent asserts that I should have charged H with an offence
under s 527C(1)(c) of the Crimes Act 1900, as opposed to s 527C(1)(a) (as
charged). The difference between the two charges being that the former
concerns custody of goods by the defendant on premises and the latter the
defendant has personal custody of the goods.
154. Having now reflected on the matter, I believe that the correct charge was
an offence of "take and drive conveyance w/o consent of owner" under s
154(a) of the Crimes Act 1900, which is an indictable offence that is not
subject to a 6-month limitation period. It could have been charged within time
even in December 2015.
155. I did seek the guidance from Senior Constable OWEN about the goods in
custody charge. At the time of receiving information from him, I believed that
the charge was sufficient, as H was in possession of the bike at the time.
156. I believed that I would be able, with the G's statement and further
information received by highway patrol police, to prove that there was a high
degree of suspicion that the bike was stolen or otherwise unlawfully obtained.
157. I also believed that when the charge was accepted by a verifying officer,
Sergeant GRAY on the 27 October 2015 he would have considered the
information in the Facts Sheet and the charge and by accepting the charge he
verifying the offence charged was the appropriate charge. I expected if there
was a problem with me having the incorrect charge that Sergeant Gray would
raise it with me and I could have sought legal advice from the prosecutors.
56 The respondent’s position with respect to Allegation 4 is set out at [6] above.
Allegation 4
23. I was responsible for triaging and reviewing the issues in relation to
allegation 4 after the complaint was finalised.
24. Having reviewed all the information, it was clear to me that Mr Todd's
knowledge fell well short of what it needed to be.
25. I refer to paragraph 143 of the Todd Statement. The standard procedure
for interviewing a person of interest (POI) who is already in gaol is to make
what is known as a Section 25 Application to have the POI brought to the
police station by Corrective Services for interview. On 4 September 2015 when
I made a comment on his Case referred to in the Todd Statement, Mr Todd
had not made such an application. Rather, Mr Todd disregarded my comment
and instead created a job on COPS requesting a police officer at Junee Police
Station attend Junee Gaol and ask the POI if he would be interviewed. This is
not the correct procedure, nor is it the responsibility of another officer at
another police station. In my view, Mr Todd was simply trying to save himself
some work.
26. At paragraph 144 of the Todd Statement, Mr Todd extracts a section of the
narrative entered in the Case Comments of the COPS system. This
conversation would not have prevented Mr Todd from making the Section 25
Application.
27. I have reviewed the COPS Event... At page 71, Senior Constable Hall
adds the following comments:
Q. Do you want to be interviewed about this allegation?
A. Yeah l do.
and
The inmate expressed a desire to be taken to the police station immediately.
Upon my review of these comments, I disagree with what Mr Todd says at
paragraph 146 of the Todd Statement about the POI not wanting to be
interviewed.
28. There was nothing in the COPS Event that would have prevented Mr Todd
from interviewing the POI. To my knowledge, Mr Todd did not at any time
make the Section 25 Application to speak with the POI as I had instructed him
to do.
Findings with respect Allegation 4
58 The applicant offered no plausible explanation for failing to follow the
instruction of Inspector McLay. During the cross-examination of the applicant,
the following exchange occurred:
Q. As you understand. So there’s a direction there being made to you by

Inspector McLay to make a section 25 application, correct?
A. Yes.
Q. And that’s to interview the person of interest, correct?
A. To carry out a section 25 to get him to the police station for an interview.
Q. In order to interview him?
A. Yes.
Q. Yes. And you understood that is so that you could actually get more
information from the person you interview to ascertain whether or not there is
sufficient evidence to support the charge?
A. Sorry, can you just repeat the question?
Q. You understood that direction which was given to you by Inspector McLay
is so that you could obtain sufficient evidence to support the charge?
A. I believed at the time I had sufficient evidence to support the charge.
However, I - any charge matter I offered the person of interest, the person
being charged, had a chance to give their side of the story.
Q. Now, it’s not only a matter of making sure you get their side of the story, it’s
also making sure that you get enough information to proceed with the job;
would you agree with that?
A. Not really, sorry, no.
Q. Now, did you - you didn’t actually make an application under section 25 to
get Mr H from Junee Correctional Centre to Wagga Wagga local area
command, do you agree with that?
A. I do. I did not do that order, no.
Q. Is it your ordinary practice to disregard a direction made by a senior police
officer?
A. No.
Q. And you agree that the comment which was made by Inspector McLay in
that entry on 4 September 2015 was an instruction to you?
A. I do not recall my response to this email. I would not disregard an order
from an officer. I just do not recall what I actually did at the time. I don’t’ have
any documentation or any other to refresh my memory at all.
Q. Listen to my question again. Do you agree that what was contained in that
message from Inspector McLay is an instruction for you to make a section 25
application to get H brought from Junee Correctional Centre to Wagga Police
Station for an interview?
A. Yes.
Q. And you agree that you said you don’t remember what happened but you
agree that you didn’t follow the instruction?
A. Yes.
59 I agree with the respondent that the multiple failures of the applicant which
formed the basis of Allegation 4 adversely impacted upon the administration of
justice. Not only did he select an incorrect charge, the matter became statute
barred. The applicant did not follow all the advice and guidance that was
provided to him, such as to make an application to interview the person of
interest himself. The evidence shows that he failed to act according to
minimum standards of diligence and commitment reasonably expected from a
professional police officer.
Allegations 5 and 6
60 The background to Allegations 5 and 6 was set out in the respondent’s
Statement of Reasons in the following terms:
A chronology monitoring your conduct commenced on 16 April 2016, when

you turned up, late for your day shift. The chronology was maintained until 28
December 2016.
On 5 July 2016, you were placed on an Interim Risk Management Plan (IMP).
The plan had three strategies:
1. A mentoring officer to be appointed;
2. Restrictions to be put in place regarding duty type; and
3. Complaint and Conduct Monitoring (A chronology to be maintained).
Your appointed mentor was Sergeant Nicolas Brunyee, and you were required
to perform all mobile duties with Leading Senior Constable Kate Williams. In
addition, you were to ensure that all your briefs of evidence were checked by
one of these two officers prior to submission to the Brief Handling Manager.
The desired outcome to Strategy 3 was that you would comply with the NSW
Police Force Code of Conduct and Ethics.
Amended Interim Risk Management Plan
On 30 August 2016, the IMP was amended. In particular, the restrictions
around your duty type were altered. You were now to have your briefs of
evidence checked by Sergeant Brunyee, Sergeant McLachlan or A/Sergeant
Hallam. You were no longer required to work alongside Leading Senior
Constable Williams.
Record of Interview
On 28 September 2016, you took part in a directed interview. You were
questioned about the fact you were failing to comply with the IMP. You
responded:
I understand that I am meant to comply with it and I tried to complete
the briefs as quickly as I could but as I was away I didn't realise they
were due so soon.
During the interview, you identify that by not complying with the initial IMP you
were in breach of Point 3 of the Code of Conduct and Ethics. You also agreed
that on 30 August 2016, you were told your IMP was amended because you
were failing to comply with the original plan.
During your record of interview, you were spoken to about your preparation of
briefs of evidence. You say that during the IMP you handed your completed
briefs of evidence to Sergeant Brunyee to check.
Mentor Reports
In a Mentor Report dated 29 November 2016, Sergeant Brunyee recorded that
you were not meeting the required standards. He refers to a custody incident
that occurred on 2 November 2016 where you failed to observe what was
occurring. Another incident occurred on 4 November 2016, where you had to
be reminded of your obligations as the Officer in Charge of a matter. It also
appears you told Inspector Robertson that you had only just been told orally by
the prosecutors that you had to attend a Local Court Hearing, in circumstances
where you had received an email about the hearing date three months earlier.
Inspector Peter McLay noted that your conduct continued to be of concern and
you were not showing any sign of improvement.
In a Mentor Report dated 26 December 2016, Sergeant Brunyee recorded that
you were not meeting the required standards. He refers to meetings held by
A/Sergeant Hallam where he raised issues with you regarding your poor
attitude. Further issues were identified while you were performing custody
duties, and you were not meeting the standards required as set out in the plan.
Statement of Senior Constable Kate Williams
In her statement dated 31 March 2017, Senior Constable Williams describes
how she was appointed as your mentor on the IMP and you were to work
alongside each other. She describes an incident that occurred in July 2016
where you handled the situation well. However, overall she did not feel she
was making much progress with you due to your dismissive attitude towards
your duties and towards her. She says you did not appear to want advice, or
seek advice, from her. On 5 August 2016, she spoke to Inspector McLay
suggesting another officer should be assigned as your mentor.
Senior Constable Williams also highlights that she had concerns about your
time management skills and fatigue levels. During August and October 2016,
she describes how she had to resubmit Events to you due to poorly written
narratives, and she had to address your improper practices.
She states that on 4 December 2016, you asked her to accept a charge you
had created. She says it required no editing, so she advised you to ''do it like
this every time''. On 14 December 2016, and prior to going on annual leave,
Senior Constable Williams recorded that she had found you to have been
generally good in recent times. But, she also stated:
"He still has an overall demeanour of not caring / being dismissive but
this doesn't stop him from doing as asked. However this appears to be
his manner and not necessarily his attitude".
Statement of Sergeant Nicholas Brunyee
ln his statement dated 4 April 2017, Sergeant Brunyee states that as part of
his duties he quality reviews the work of junior officers. He says that during his
review of your Events, Cases, Reports, Fact sheets and Briefs of Evidence, he
identified several deficiencies with your work. The issues he identified
included:
• poor spelling and grammar;
• Events being constantly resubmitted to address these issues;
• FACTS Sheets and statements missing vital evidence; and
• proofs of charges not being met.
Sergeant Brunyee states that he spoke to you about these issues and
reinforced with you the need to read and check your work prior to submission.
However, he says the quality of your work did not improve. He says your work
remained at a poor standard. As such, a chronology document was created.
Two examples provided by Sergeant Brunyee include a narrative you created
on an occurrence (E119047301) where you stated:
"The POI and his mother answered the door. Bail complied. The POI
was wearing at the time grey tracksuit pants, black shit with white
selves and a white pocket" (sic).
and, a CAD message you created on 13 July 2016 when you stated:
"White Statements with no rego is driving around vacent block AAA"
(sic)
Sergeant Brunyee says that during June 2016, serious concerns were raised
by Senior Sergeant Brand, Head of Court, and Senior Constable Blacker,
Assistant Brief Handling Manager, about the quality of your briefs of evidence.
From July 2016 onwards, Sergeant Brunyee describes a number of occasions
where he says you failed at a fundamental level.
Sergeant Brunyee says that on 20 June 2016, he had a meeting with Senior
Sergeant Brand (Head of Court) and Senior Constable Blacker (Brief Handling
Manager). He says serious concerns were raised concerning the quality of
your briefs of evidence. He also refers to an incident that occurred on 8 July
2016 when you attended for the nightshift while unshaven. He says you told
him that you had forgotten to do so.
Sergeant Brunyee states that, on 24 August 2016, Senior Constable Madonna
Reardon brought a domestic violence matter you were investigating to his
attention. A number of deficiencies were identified, including a failure to notify
your supervisor on the date the incident occurred and a lack of victim follow
up. Also, when the ADVO was in court on 23 August 2016 you did not mention
on the court folder that there may be possible charges, or that the offender
was to be arrested. The Event also had to be resubmitted to you reminding
you that in domestic violence matters the decision to charge someone does
not lie with the victim.
Statement of Inspector Peter McLay
In his statement dated 21 March 2017, Inspector McLay recalls that you
moved teams during March 2014. He believes this was done to assist you
reach the required standards by working with different supervisors. In June
2016, due to several complaint matters, he arranged for you to be placed on
an interim risk management plan.
Inspector McLay says he told you when you entered the IMP that further
management action might be taken once the current complaint matters were
finalised. He also says he spoke to you again on 10 November 2016 and told
you that you would continue to have your duties restricted until your conduct
dramatically improved.
Inspector McLay states that, on 7 December 2016, he found you with your feet
up on the desk, with your hands behind your head, while watching a video on
a computer. He says he told you to get your feet off the desk and do some
work. He also told you “This is your last warning, do you understand?". He
says you acknowledged what he said by 'nodding' your head.
On 21 December 2016, Inspector McLay spoke to you concerning ongoing
complaints about the quality of your work. He states he discussed with you
your future career prospects with the NSW Police Force. He says he informed
you that you needed to show some dramatic improvement. He says you have
the following exchange:
McLay: "James, the Commander is recommending you be sacked. We will not
be having this conversation in 12 months James. Either you will be gone or
you will be back doing your job. Do you understand?"
Yes: "Yes".
Brief Preparation
In their statements Senior Constable Crystal Blacker and Detective Senior
Constable Anna Smith, Brief Handlers, refer to a number of your briefs of
evidence that they say were overdue and had a number of shortcomings. The
matters of H, Hi and L are referred to below.
H Brief
Information obtained in COPS shows the due dates for the brief were as
follows:
Prosecutor: 13 July 2016 Defence : 13 July 2016
Reply : 27July 2016 Brief Mgr: 29 June 2016
In his statement dated 4 April 2017, Sergeant Brunyee states that he reviewed
the H Brief on 5 July 2016 and discovered a number of inconsistencies. This
included a statement drafted by you, which he says was poor. It also made no
references to the Notebooks of the other officers involved.
Sergeant Brunyee also states that Senior Constable Blacker spoke to you
because the brief had been served without it being checked by anyone. He
says he had previously checked the brief and had advised you to make a
number of changes, which you failed to do.
In her statement dated 23 March 2017, Senior Constable Crystal Blacker
states the brief was received by the brief handling manager nine days after it
was due to the defence. She states she sent you a number of reminders
regarding the brief. She also offered to assist you. On 6 July 2016, Senior
Constable Blacker states she sent you an email attaching a document titled
'Brief Contents and Order for Summary and Indictable Matters'. This document
was a useful guide as to what items might be required when compiling a brief
of evidence.
In her statement dated 27 March 2017, Detective Senior Constable Anna
Smith, Brief Handler, states the brief was received late and lacked detail. She
says:
• it lacked transcripts of interviews;
• it was unclear if the interviews were electronically recorded; and
• that witness statements lacked detail.
Detective Senior Constable Smith says you were told to contact her if you
needed help. She says there is no record of you seeking assistance, nor is
there any record of the outstanding material being supplied. She says the
matter was withdrawn.
Detective Senior Constable Smith says that although you generally contacted
her for advice, you rarely followed any advice that was given. She also says
you were "more often than not, late with [your] brief submission".
During your record of interview on 28 September 2016, you accept that
Sergeant Brunyee had suggested amendments and you say:
The brief was overdue at the time, I was pressed for time and I was
under the impression that I would make an additional statement later to
cover the changes, I didn't make the statement as I didn't have time.
You acknowledge that Senior Constables Blacker and Smith sent you detailed
comments regarding the brief. You refer to the annual leave you took between
14 July 2016 and 6 August 2016 and say you completed the brief on your
return. You say that you did not realise it was overdue.
Hi Brief
follows:
Prosecutor: 11 August 2016 Defence : 11 August 2016
Reply : 24 August 2016 Brief Mgr: 28 July 2016
In his statement dated 4 April 2017, Sergeant Brunyee states he reviewed the
Hi Brief on 8 August 2016 and identified a number of issues. These included
the fact that you did not include a formal caution, you did not say that you were
authorised to operate Breath Analysis equipment, or make any reference to
the BAS certificate. Indeed, he says the BAS certificate was not in the brief.
Sergeant Brunyee explained to you that without the BAS certificate there was
no prima facie case.
Amongst other things, Sergeant Brunyee asked you to clarify the following
passage that was contained in your statement:
"I placed D (first name) into the rear caged section of the Police
vehicle. While D was in the rear caged section of the Police vehicle I
submitted him to a road side breath test, which returned a positive
reading."
It appears your narrative caused some confusion as to how you performed a
road side breath test while the person was in the rear caged section of the
police vehicle.
Sergeant Brunyee states he checked the brief again on 25 August 2016 and it
still included:
• the wrong date, time and place of incident;
• grammatical errors:
• very little first person conversation; and
• no reference to the pro-forma questions asked prior to a BAS test
being conducted.
Sergeant Brunyee says at this time he gave you a book of sample statements
for all matters, including PCA type matters.
In her statement dated 31 March 2107, Senior Constable Williams says that on
21 August 2016 you asked her to prepare a statement for the Hi Brief. She
states that when she reviewed the FACTS Sheet the incorrect time, place and
date were recorded in the first paragraph. She says she spoke to you about
this but you could not explain the errors.
Senior Constable Williams states that you told her you would speak with the
prosecutors' office about amending the errors. However, she says when she
checked the information two days later, the date and day were still incorrect,
although the location had been amended.
In her statement dated 27 March 2017, Detective Senior Constable Smith
recalls the brief being overdue. She says there were numerous outstanding
items, including CCTV footage, several statements and Court Attendance
Notices. She says you were told to contact her if you had any questions. She
also states there is no record of the outstanding items being provided.
In her statement dated 23 March 2017, Senior Constable Blacker confirms
that, despite sending a reminder, the brief was received late. Indeed, she
received it on the day it was due to the defence.
She says this caused her to reprioritise her day so she could check the brief.
Prior to the brief being received she had to chase you for a number of
outstanding items.
Senior Constable Blacker says that on 23 August 2016 she had to send an
email to a number of officers in relation to this matter seeking their outstanding
statements. She says she then spent her morning chasing the statements,
which took her away from her other duties.
During your record of interview, you say you had very little time to complete
the brief. You admit that you are a qualified BAS Analysis Operator. You say
you had never completed a 'BAS statement' before. You accept that
comments were made by the brief handling manager. You refer to your annual
leave and say you completed the brief as quickly as you could upon your
return.
L Brief
follows:
Prosecutor: 22 August 2016 Defence : 22 August 2016
Reply : 5 September 2016 Brief Mgr: 8 August 2016
In his statement dated 4 April 2017, Sergeant Brunyee states that on 22
August 2016 he reviewed the L Brief as it was overdue. He says numerous
comments had been placed on the brief, which you had read. Sergeant
Brunyee checked the brief again two days later and found that you had not
conducted the numerous additions / amendments.
In her statement dated 23 March 2017, Senior Constable Blacker says she
received the brief after the due date and three days prior to it being due to the
defence. She says three reminders had been sent to you reminding you that
the brief was due. She says a number of matters remained outstanding and
noted several deficiencies in your statement. She says your statement was
just a 'cut and paste' from a linked matter. She also advised you that you need
to provide a separate statement for each person of interest, focusing on your
involvement with each one of them.
During your record of interview, you say you were on annual leave when the
brief was requested. You say you completed it as quickly as you could once
you returned. You cannot recall if you gave the brief to Sergeant Brunyee to
check. You agree that the brief you submitted in this matter was the exact
same brief you provided in the matter of H (except for a statement obtained
from Forbes police).
You were referred to a number of comments Senior Constable Blacker made
on the brief, and asked why you submitted the brief after the date it was due to
the defence. You responded that following your return from leave, you
completed the brief as quickly as you could.
Response
!n your Response, you admit Allegations 5 and 6 and apologise for your
behaviour. You concede you did not give your full attention to your work. You
submit the impact the event giving rise to Allegation 1 had upon you was the
catalyst for your poor conduct and behaviour throughout 2016.
You also submit there were times when you could "function to the satisfaction
of my superiors". You further state you were not told about some of the issues
and therefore you were unable to correct them or obtain further training. You
say you have always attempted to complete your work to the required
standards.
You say you have successfully completed many briefs of evidence. You say
you are fully capable of completing investigations and compiling briefs. You do
not feel you have failed over a lengthy period.

seriousness of the allegation, that you have failed, over a substantial period, to
meet the expected standards of performance and competence of a Constable
of police. Your deficiencies appear to include poor work and time
management; a lack of attention to detail; poor operational skills; an inability to
plan and organise effectively; poor management and investigation of incidents;
and poor technical and professional knowledge.

seriousness of the allegation, that you failed to prepare timely and / or
satisfactory criminal briefs of evidence in the matters of H, L and Hi...
63 The applicant has admitted Allegations 5 and 6 and has apologised for his
behaviour.
64 In his witness statement, the applicant stated:
Allegation 5 - April to December 2016

158. I admit Allegation 5 and accept that I did not give my full attention to my
work. I regret the situation and apologise for my shortcomings.
159. The entire period from April to December 2016 was a very difficult time
for me and Tamara.
160. I wish to reiterate my evidence in paragraph 19 to 21 and 25 to 52 above
in relation to the difficulties Tamara and I were having in our marriage, and the
timing of the onset of my poor mental health and Post-Traumatic Stress
Disorder.
161. I particularly refer to the reports of my treating psychiatrist Dr Diamond
and the insurer's consultant psychiatrist Dr Prior in relation to their opinions
about my mental health.
162. Whilst I was aware that our marriage was really suffering and that I was
having a great deal of difficulty coping at work l was oblivious to the existence
of the Post-Traumatic Stress Disorder and depression until it was eventually
diagnosed in March 2017. I did not report it because I did not understand what
was going on.
163. After the charge room incident (Allegation 1) on 31 March 2016, I was left
feeling very distressed and shocked about the whole situation. I knew that I
was being blamed for delay in giving help or assistance to another officer
because that was what was being talked about.
164. It was a significant blow to my reputation in the station. I was at a loss to
understand why I had chosen to have a cigarette rather than go straight to the
charge room. It made me feel even more shattered not being able to
understand what was going on. I lost a lot of my confidence at work and felt
poorly about myself. I couldn't understand what was happening to me and I
became more and more distressed and anxious within myself.
165. Internally, I placed myself under a lot of pressure about not giving
assistance to a fellow officer. I knew I had made a mistake and that I was not
functioning correctly at work and was suffering poorly in my personal life with
Tamara.
166. I took annual leave from 15 to 27 June 2016.
167. On 5 July 2016, I entered the Interim Risk Management Plan. Sergeant
Brunyee was my supervisor. He was assisted by Leading Senior Williams.
168. On 30 August 2016, I entered the Amended Interim Risk Management
Plan. Sergeant Brunyee was my supervisor. No body assisted him.
169. I took annual leave from 11 September 2016 to 22 September 2016.
170. I have read the documents and statements provided from the Wagga
Wagga Station and Staff that were served on me by the Commissioner of
Police regarding my performance. I believe that the errors and incidents noted
do not represent me in a true view of my performance during that period.
There were many times when I was able to function to the satisfaction of my
superiors.
171. There are many incidents detailed in the reports and statement, that I was
not informed about at the time or provided any mentoring or guidance in
respect of the incidents or given some notice or information about the incidents
at the time. This resulted in me being denied the opportunity of trying to correct
my performance in a pointed way or to improve my attitude in a way that I
could have if the incidents were brought to my attention at the time. I was
unaware of the incidents until it was too late to correct the problems.
172. This causes me a great deal of dissatisfaction with the supervision
process and I do not believe I was properly mentored or assisted. It was more
like a watching process to keep a record of me when I slipped up. This is
certainly how I felt. It made me nervous and I felt like I was being treated
unfairly.
173. It is in part the combination of the individual small incidents that are now
being relied upon to remove me from the Police Force, in circumstances where
they were not brought to my attention at the time.
174. I did not trust Sergeant Brunyee. I felt his supervision of me was biased
and of poor quality. I felt uncomfortable around him because his wife and
children had stayed at our house whilst they came to Wagga Wagga in
advance of him. Then when his wife separated from him I helped her move her
belongings out of their home when he was away. We did not talk about this,
but I felt uncomfortable with him being my supervisor. I did not raise my
concerns because I thought it would probably backfire on me and could make
things worse.
Allegation 6
175. Throughout the supervision period, I was quite busy and had, what I
believe was a reasonably heavy workload. It certainly seemed that way to me.
I was working hard and doing my best to get things done and despite my
efforts I was able having trouble meeting all of my deadlines.
176. Annexure 40 to the statement of Senior Constable Blacker the Assistant
Brief Handling Manager, dated 22 March 2017… According to the annexure
between 12 April and 16 June 2016 I was the officer in charge of and had
briefs of evidence due in the matters of: (1) K; (2) Hi; (3) G (4) C; (5) T; (6) I;
(7) B; (8) L; (9) H; (10) Bu; (11) M; and (12) Ba.
177. Further, Annexures 42 and 43 to Senior Constable Blacker's statement…
shows that I was also required to follow up on a further three briefs of evidence
in which I was the second officer in charge, because the officer in charge was
on holidays.
178. I accept that I made many mistakes during the supervision period. It was
during a time when I had a busy workload. It was not through want of effort. I
did my best in the circumstances that I faced, which included my poor mental
health and the symptoms of the mental illnesses and anxiety that I was
suffering, coupled with the problems that I was having in my marriage.
Allegation 5
29. I was responsible for overseeing the Interim Risk Management Plan and
Amended Interim Risk Management Plan that Mr Todd entered in to in July
2016 and August 2016 respectively. I was not responsible for the day to day
management of Mr Todd.
30. On 17 March 2017, I made a statement in relation to Mr Todd's
performance…
31. During the Interim Risk Management and Amended Interim Risk
Management periods, I did not see an improvement in Mr Todd’s performance.
I was continually receiving negative feedback about Mr Todd’s competence
from other officers tasked with mentoring him. A log of feedback was kept,
both good and bad feedback, and contributed to by officers tasked with
mentoring Mr Todd…
32. At paragraph 164 of the Todd Statement, it is suggested that the incident
which forms Allegation 1, was a “significant blow to [Mr Todd's] reputation”
which led to him performing poorly. I disagree with the statement. For the
reasons I have outlined above, Mr Todd's reputation was not affected by the
incident which forms Allegation 1. I would have said that his reputation for his
competence was ‘fair’ at best, both before and after that incident.
33. At paragraphs 170 to 173 of the Todd Statement, Mr Todd says that the
incidents which form the allegations relating to his competence were not
serious. I disagree with this statement and say that the competence of a Police
Officer is a serious matter. It is imperative that a Police Officer is competent
when performing their duties. Incompetence in completing duties can mean
that, for example:
a. defendants are not charged properly and prosecutions cannot
proceed;
b. the safety of members of the public is put at risk because Police
Officers are not adequately performing their duties to protect the
public; and
c. the safety of other Police Officers is put at risk.
34. The fact that Mr Todd does not understand the necessity of him performing
his duties competently is of concern to me. This suggests to me that if Mr Todd
was to be reinstated as he is requesting that his performance would be no
different than it was prior to his removal.
35. Further, on a number of occasions… Mr Todd was spoken to and told not
to watch Netflix or movies while on duty. The fact that Mr Todd needed to be
told not to do so on a number of occasions demonstrates to me that he did not
take his work seriously, he refused to take directions from senior officers and
was not trying to improve his performance to the required standards.
36. In relation to paragraph 171 of the Todd Statement, I say that Mr Todd was
given sufficient support to correct his performance. A number of different
mentors and supervisors were assigned to Mr Todd during his time at Wagga
Wagga Police Station... He was assigned different mentors and supervisors to
ensure that he had every opportunity to improve his performance and was not
hindered in doing so because of any difficulties with a particular mentor or
supervisor. As is apparent… the mentors and supervisors assigned to Mr Todd
each had the same or similar experiences in relation to his performance.
37. I refer to paragraph 174 of the Todd Statement. Mr Todd never brought
these concerns to my attention. Had he done so, I would have taken these
concerns into account and if necessary could have arranged for Mr Todd to be
supervised by another Sergeant. As I outline above, there was a history of
assigning Mr Todd different supervisors to assist him in improving his
performance. This could have been done again if required.
Allegation 6
38. In relation to paragraph 175 of the Todd Statement, I say that Mr Todd's
situation was not unique in that Wagga Wagga is a busy station. However,
from around July 2016, Mr Todd was restricted in working outside the station.
This meant that he did not attend jobs outside the Police Station.
39. Mr Todd could have asked for additional assistance if required, however,
as I have outlined above, Mr Todd’s performance issues were not limited to
this period. He had not displayed the required level of competence since he
commenced in 2012.
40. In relation to paragraph 178 of the Todd Statement, I say that Mr Todd
never raised these issues with me and did not indicate that these factors were
affecting his performance. Had he done so, they would and could have been
taken into account.
41. For the purpose of preparing this affidavit, I have reviewed Mr Todd's
training records… From reviewing that record, I can see that Mr Todd
completed online Brief Preparation training on 10 September 2016, and a Brief
Preparation Workshop on 16 September 2015.
Findings with respect to Allegations 5 and 6
66 The applicant has admitted these allegations and apologised. He sought to
explain his conduct, at least to some extent, by reference to the marital
difficulties he was experiencing at the time and “the timing of the onset of my
poor mental health and Post-Traumatic Stress Disorder”. For reasons which
are expanded upon later in this decision, I do not accept that the applicant’s
domestic situation and mental state at the time adequately explain or excuse
his repeated and consistent failure to perform his duties to a satisfactory level.
67 I agree with the respondent’s assessment to the effect that the applicant has
repeatedly failed to act according to the minimum standards of diligence
expected from a professional police officer and repeatedly failed to comply with
basic NSW Police Force policies and procedures.
Allegations 7, 8 and 9
68 The respondent’s findings in relation to Allegations 7, 8 and 9 were:

seriousness of the allegation, that on 7 December 2016 you:
• failed to include all relevant information reported to you by Ms A in
the CAD message, in particular that her ex-partner was the subject of
an ADVO; and
• chose to limit the information you recorded in the CAD message in
order to give the impression the matter was a 'property report'.
seriousness of the allegation, that in your statement dated 13 December 2016
were untruthful, or at the very least misleading, when you stated:
• it was you who updated the CAD job at 10.19pm; and
• that you did so after checking COPS to confirm an enforceable order
was in place, in circumstances were a COPS audit shows that you did
not conduct the searches into Ms A and Mr M until 10.20pm and
10.22pm.
seriousness of the allegation, that during your record of interview on 3 March
2017 you were untruthful, or at the very least misleading, when you stated:
• About 10pm A contacted the station for the second time where she
gave me some more information. She told me that there was an AVO. I
then conducted checks to confirm that there was an AVO. I updated
the CAD job with that information.
Case for the applicant
69 The applicant has denied these allegations.
70 On 13 December 2016, six days after the incident that led to these allegations
against the applicant, at the request of Senior Constable Parsons, the applicant
prepared a statement which contained the following:
3. In order to make this statement, I have refreshed my memory from Police

CAD system, job number 597788 – 07122016 and Police event number
E61651510.
4. On Wednesday 7th December 2016 I was rostered to work Station duties. I
was rostered to work from 6pm until 6.30am the following day. I was in full
Police uniform.
5. About 9pm on the 7th December 2016 I received a phone call to the Wagga
Police Station, which I answered. The caller identified herself as A.
6. I had a conversation with her in relation to her ex-partner, M. A told me that
she had recently separated from M and that she was at her friend’s house at
24 Maitland Avenue, Estella. A also informed me that M had attended the
location and was asking for the car back.
I Said – Who’s name is the car registered in?
She Said – Mine. I own it.
I Said – What is he doing at the moment?
She Said – Just sitting there. I have asked him to leave.
7. I created a job via the CAD system for Police to attend the location. I
continued to speak with A for a short time. I said something similar to, ‘Its
sounds like a property dispute if he wants the car he will have to attend court
and get a recovery order. If anything else happens call me back, Police will be
there when they can.’ I then terminated the call.
8. Shortly after I received a call from a male who identified himself as M. He
begun by telling me that his partner had his car and wouldn’t give it back. After
a short time I realised that he was the other party in the job I created.
I Said – Who’s name is the car registered in?
He Said – Hers
I Said – Then it is her car, if you need it you will have to go to court as a civil
dispute over the ownership.
He Said – But I need it for work.
I Said – There is nothing that we can do tonight. Police are on their way to see
both of you. I suggest that you go home and Police will contact you later.
He Said – No I am not leaving my car.
I Said – Police will be there soon.
9. I then terminated the call.
10. About 10pm on Wednesday 7th December 2016, I received a further call
A. A told me that her children were being sick and did not want to go to sleep.
She did not want to leave due to M still being there.
11. I had a short conversation with the shift supervisor Sgt HALLAM. I told him
the details, which M was at the house and wouldn’t leave. It was a property
dispute over a car. He said that he would get a car crew to attend shortly.
12. I received a further call to the Police Station from M shortly after I spoke
with SGT HALLAM. He begun by asked where Police were. I told him that a
car had acknowledged the job and would be attending shortly. M started
swearing at me, he said something similar to:
He Said – If I was a chick, you fucking would be straight out here. This is a
fucking joke, I want my car back and you cunts are not doing anything.
I Said – Police are on their way.
14. At 10:19pm, I placed an update on the CAD job.
15. I had no further involvement in relation to the incident. I completed my
rostered shift with other duties.
71 In his witness statement, the applicant stated:
Allegation 7 - December 2016

179. It is alleged that on 7 December 2016, I failed to include all relevant
information reported to me by Ms A in the CAD message I created, in
particular that her ex-partner was the subject of an ADVO; and that I chose to
limit the information recorded in the CAD message in order to give the
impression the matter was a "property dispute" (rather than a domestic
dispute).
180. I deny Allegation 7 in its entirety.
181. On 7 December 2016 I commenced my shift at 6pm working a 12-hour
shift. I was on restricted duties and had been so for about 6 months.
182. I was the only person assigned to the Station Officer role. My duties
included answering all calls to the Wagga Wagga Police Station at the first
availability attending to counter enquires and conducting station checks, like
portable equipment, checking safe contents, and then trying to complete my
paperwork. Any calls that go unanswered for a short and certain time frame,
enter an over flow system and can be answered by other officers in the station.
183. My procedure for answering calls is to greet the caller, state my name
and rank and ask how I can help. A sample of my greeting is similar to the
following:
"Good morning/evening, Constable Todd Wagga Police, how can l
help?"
184. Once the caller told me their situation I would then ask particular
questions to get what I considered was the necessary information and the
detail required to create a job. Depending on the content of the information, I
would either write the information on my daily running sheet or place the
information directly on the computer system.
185. The computer system is named "Computer Aided Dispatch" and is known
as "CAD". The system is easy and straight forward to use. I found that from
time to time the system experienced a time lag in the updating of information.
It is a functionality issue and not something that can be addressed by me or
any other operator.
186. The CAD system has several options for the operator to address the type
of incident. Examples of incidents range from jobs concerning a "parking
complaint", "checking bona fides", "driving complaint" and "domestic".
187. When creating the CAD job, the operator must create the incident to best
suit the content and description of the job for rating and identifying the
seriousness of the job. The seriousness of the job indicates the priority of the
job and the level of attention and response to the job.
188. At the end of placing the information and description on the CAD system,
the operator does not have a great deal more to do with job, unless there is
more relevant information that comes to hand or COPS enquiries reveal
information that needs to convey to the attending police officers. Any such
additional information is added to the CAD job by the operator, being logged
and recorded access and is then broadcast to the attending police.
189. My usual practice and the standard operating procedure for all front-line
police officers when they are the officers attending CAD jobs and, especially
when attending jobs classified as "domestic incidents" is to request from the
police radio operator all relevant checks and warnings for the location, vehicles
or persons involved, such as "location enquiries" or integrated licensing
system checks.
190. Throughout my career in Wagga Wagga Police Station I have never been
corrected, mentored, trained or otherwise told that it was my responsibility to
undertake COPS enquiries about CAD jobs and to update the CAD system
with results of searches done on COPS about known persons etc.
191. I always tried to gain as much information as time permitted from the
caller or informant for the job, whilst aiming to be efficient and spend only as
much time as was needed to get the relevant information and then move to the
phase of creating the job on the CAD system. It is important to note that the
phone calls are not social. The caller is usually unknown to police; is to varying
degrees in a state of distress; often speaks quickly; and requires police
assistance as soon as possible.
192. In Wagga Police Station there is often a high volume of phone calls and
as the Station Assist I quite often was the only officer answering calls.
Because of the high volume of calls usually received, I strived to be efficient
and in doing so limited the time that I took to obtain information by asking
directed questions to have the caller provide the relevant information as
quickly as possible. When appropriate and time permitted, I attempted to give
advice and guidance to callers to help them and to dig deeper and to
troubleshoot their complaint prior to requesting police to attend the location.
193. Due to the seriousness of domestic incidents, Wagga Command has
issued directive that all domestic type jobs require priority attention and the
Outside Supervisor must also attend the location.
194. I was working alone as Station Officer on the shift and the night was
reasonably busy.
195. About 21:00 hours on 7 December 2016, I received a call from A. I had a
short conversation with her during which she told me that she had recently
separated from her ex-partner M; that she was with her sister at her sister's
house in Estella. I knew Estella to be a residential suburb about a 10-minute
drive North from central Wagga Wagga.
196. I continued to speak with A for a couple of minutes. I established that she
wanted the police to attend at her location as M was outside her sister's house
and wanted to take a car that she said was owned by her. She told me that M
was just sitting outside waiting and that he wanted to take the car. After I
established that A and M were in a domestic relationship, I classified and
placed the job as incident type "Domestic".
197. …The job I created is described under the "Incident Header'' section as
follows:
"Priority 3 Domestic
INF (A) stated the ex-partner M 21/07/1977 is at the LOC. POI (M) is
asking for the car back and the INF is refusing. Veh is registered to the
INF."
198. I classified the job as "Domestic". I did this because I believed it was
domestic related dispute between ex-partners involving a contested claim to a
car that was registered in the name of A and that her ex-partner M was
wanting to take the car against the wishes of A.
199. I did not make a malicious or contrived decision to give the impression
the job was a "property report" or to write the CAD job up in a particular way to
make it easier to "write off'. I was on station duty. I was never going to attend
the job. I had absolutely nothing to gain from classifying the job as a domestic
or a property report or any other category. I classified it as I did because I
believed it was the most accurate description for the job and that it was the
correct thing to do.
200. At 21.02:52 hours the CAD system generated an automatic "broadcast"
to all MDT and VKG. This means that the job is automatically sent to computer
screens of MDT and VKG computers.
201. At 21.03:51 hours the job was broadcast over police radio by VKG but it
was not acknowledged by any car crews.
202. Not long after I created the job on the CAD system, I received a call from
M. At the time I received information from him, confirming what A had
previously told me. I did not obtain any new information. He confirmed the car
was registered in the name of A. I told him that if it is her car he would need to
go to court to have the ownership determined as a civil dispute over ownership
which was not a decision the police could make. I told him that the police were
on the way but as there was little police could do it would be best if he went
home and he would be contacted later. He refused to leave. I told him that
police would be there soon.
203. It was a relatively busy shift. I continued working and took many other
phone calls and placed jobs on the CAD system. I also attended to other
responsibilities I had during the shift.
204. The job was broadcast again by VKG at 21.49:48 hours and 22.01:13
hours. On both occasions the job was not acknowledged by any car crew,
which meant that no car crew had committed to attend the job.
205. About 22:00 hours, I received a call from A stating that M was still out the
front of her sister's house and she wanted to leave to go to sleep. but couldn't
because M was still outside.
206. l entered the Supervisor's Office and told the supervisor, Sergeant
Hallam, that there had been a delay in police attending the (A) domestic
incident CAD job. I asked if he could task a car crew to attend, which if done,
would give the job more priority. There were car crews in the station and the
job was being ignored by them.
207. Shortly after my conversation with Sergeant Hallam, I received a call from
M. He asked if police were on their way, to which I stated that I just spoke to
the supervisor about given the job a higher priority. M said something like:
"lf I was a chick, you fucking would be straight out here. This is a
fucking joke, I want my car back and you cunts are not doing
anything."
I told him police were on the way and terminated the call.
208. Shortly before 22.19 hours, I learnt that an officer had telephoned A using
the number that was provided on the CAD system. I also received that there
was an enforceable ADVO in place against M. I conducted checks on the
COPS computer system to confirm there was an enforceable ADVO order in
place against M. My accessing of COPS is confirmed by my COPS audit
report, assuming that somebody else did not use my user identity.
209. I am certain that A did not tell me there was an enforceable ADVO in
place prior to the call I made to her at around 22.19 hours.
210. A Station Update was broadcast by VKG at 22.20:20 hours advising that
an AVO was in place against M.
211. The job was acknowledged by car crew with the call sign "WW14" at
22.21:20 hours.
212. Senior Constable Parsons attended the job at 22.36:45, it was not until
22.46:13 that the relevant information was given in relation to bail conditions
via "web link attached: Summary - M", which was updated and broadcasted by
Police radio. M was told that A declined to provide police with a statement
against M; that he would not be taking the car; and that he should leave the
area.
213. M was initially told information in relation to attending court to contest the
ownership of the vehicle, however again refused. Attending Police told M that
he would be arrested for a breach of the peace, which he initially the reason
for arrest. M was later charged for breach of ADVO, with A’s sister being
named as the victim and breach bail conditions.
Allegations 8 and 9
214. I deny Allegation 8 and 9, which fall from the facts in relation to Allegation
7.
215. Prior to the completion of my shift on 7 December 2016, Senior
Constable Parsons asked me how many times M had telephone me. I told him
that I spoke to him twice. Senior Constable Parsons then asked me to provide
a statement in relation to my involvement.
216. I did not ask Senior Constable Parsons the reason for him wanting the
statement and he did not tell me. I certainly did not think it had anything to do
with a complaint against me. If I had, I would have made contemporaneous
notes on the night and would have made sure that I made the statement from
my memory as it stood on the night.
217. I was unaware that there was any complaint or suggestion that I did
anything wrong until I was given notice of the complaint in March 2017,
approximately 3 months after I was suspended from duty. There was
absolutely no attempt to correct, mentor or train me in how better to use the
CAD system.
218. In accordance with the request by Senior Constable Parsons, I prepared
a statement on 13 December 2016…
219. At the time I made my statement on 13 December 2016, for the purposes
of refreshing my memory I accessed information on the CAD system for job
number 597788-07122016…
220. My username identity on the CAD system is "N48562". The addendum is
automatically logged when I as the operator logged into the CAD system and
entered information. The user identity is important for auditing purposes and, I
assume, to enable monitoring of correct usage and the creating of CAD jobs
by specific identified operators. The user identity is assigned to each officer
and should not be used by another officer.
221. For efficiency, when working in the station assist role which involves
placing many CAD jobs on a shift, it is common practice for the station assist
officer to remain logged into the computer terminal in the station so that the
CAD system can be quickly accessed. If another officer wants to use the CAD
system, they should logon using your own user identity and not use another
officer's user identity.
222. When I refreshed my memory from the CAD system for job number
597788-07122016 I saw that my user identity of N48562 was used at 22:19:13
hours to update the job via a Station Update as follows:
"There is currently an AVO in place - the POI has driven to the location
in a cab and has been sitting outside the location for over an hour. The
INF is scared and cannot leave the location."
223. After refreshing my memory in accordance with the preceding paragraph I
assumed that I made the Station Update and, I included that in paragraph 14
of my statement. I did not have an independent memory of the job.
224. I relied upon my general non-specific memory of the events of the night
and the conversations I had in the telephone calls and my refreshed memory
from the CAD system for the job which is a contemporaneous time-line record.
225. At the time, I believe that the CAD system for job number 597788-
07122016 accurately reflected my use of the CAD system for the job and I
believed the information in my statement was true and correct.
226. I have since learnt that on 22 May 2017, Inspector Spliet of Professional
Standards interviewed Leading Senior Constable Gates and that she made the
station update in the CAD system at 22:19:13 hours under my user identity
because it was easier for her than logging in under her own user identity.
227. Leading Senior Constable Gates did not tell me that she used my user
identity to update CAD, but she informed Inspector Spliet of that fact on 23
December 2016. I was suspended from duties on 28 December 2016. I found
out about Leading Senior Constable Gates using my identity on CAD well after
I had been suspended.
228. Without being told that my user identity had been wrongly used to access
the CAD system I was entitled to assume that the computer record showing
my accesses of system was accurate and that it properly represented my use
of the CAD system.
229. Due to the high volume of calls and further conversations throughout my
shift, I used the available information to me at the time to create my statement.
By sighting the clear evidence that the CAD job was updated under my profile I
believed, I updated the job. Being that was only a very small evidentiary part of
my statement I was not aware that another officer updated the CAD job under
my profile.
230. As stated above I was refreshing my memory from the CAD job. In my
response I remember doing the checks on COPS and admit not having a
memory of updating the CAD message. Again, this was done from using the
CAD job to "refresh my memory" and seeing that my profile updated the CAD
job I assumed that I had updated it. This is a reasonable assumption to be
made and in no way indicates any intent to falsify my statement.
Case for the respondent
72 With respect to Allegation 7, the respondent regards this matter as a further
example of the applicant’s failure to act according to the minimum standards of
diligence and commitment that can reasonably be expected from a
professional police officer and a failure to comply with basic NSW Police Force
policies and procedures by omitting critical details from the CAD message. The
respondent does not accept that the applicant was not told about the existence
of an ADVO. The respondent accepts that Leading Senior Constable Gates
spoke to the applicant about the omission of this fact and he told her it made
the CAD job easy to write off. This was overheard by Leading Senior Constable
Hallam (see [6] above).
73 With respect to Allegations 8 and 9, the respondent regards these matters as

demonstrating that the applicant has repeatedly provided false or misleading
information. The respondent does not accept that, when the applicant drafted
his statement six days after the incident, he believed that he had taken and
created the updated message (see [6] above).
74 On 23 December 2016, Leading Senior Constable Gates created a “Godfrey

Report” in response to a Directive Memorandum. The report contained the
following:
BACKGROUND
On Wednesday the 7th December 2016, I was rostered to work 1pm till
1.30am with Constable BANNISTER.
During the evening I was sitting in the muster room when Sergeant HALLAM
walked in and said something along the lines of “Toddy wants to know if
someone can copy and do the job at Estella, it’s been outstanding for a while.”
I said “I’ll have a look at it, its only a property dispute, I’ll go give the informant
call.”
I walked to the station area and there were no persons there. Constable TODD
had left the computer opened with CAD on the second screen. I looked at the
cad job 597788-07122016 and I contacted the informant listed on the Cad job,
A…
I spoke to A and spoke to her about a property dispute and she stated, “No, it’s
not a property dispute, there is an AVO.” I said, “I’m sorry but that is the
information I’ve been given.” She said, “Can I speak to Constable TODD, I told
him the information/story.” I said, “No, can you please tell me what is really
going on.” She said, “There is an AVO with my ex-partner where he tried to
choke me earlier in the year. He got a cab here and is sitting outside my
sister’s house, he has even been sitting on/near my car and I can’t leave, I’m
too scared to leave and I need to leave. He has been here for more than an
hour.” I said, “I’m sorry. I’ll update the job with that information and someone
will come out.”
Constable TODD had walked back into the station area while I was on the
phone to A.
When I got off the phone, I sat at the chair and updated the CAD job to state,
“there is currently an AVO in place – the poI had driven to the location in the
cab and has been sitting outside the location for over an hour. The informant is
scared and cannot leave the location.”
I then spoke to Constable TODD and asked him why he did not put all the
information into the Cad job in which he replied, “Cause it’s as easy to write
off.” After hearing this I approached A/Sergeant HALLAM and had a
conversation about this information and I expressed my concern about not
having the information within the job and how the cad job read so different to
what the situation really was.
…………………………………..
COMMENT
I have real concerns about this whole incident, the first being that the cad job
that was created is incorrect and appeared to be a simple property dispute
when it was in fact the incident was so much more and had the potential to
escalate.
The second issue I have with this situation is that when I spoke to Constable
TODD and he provided me with an explanation of why he didn’t put all the
information in the cad job, he seemed to think it was ok to leave important
information out so someone could write the job off easier.
To me this is an issue, it’s a safety issue for police, not knowing the “whole”
story/information when attending a job. This is how police get hurt.
75 Leading Senior Constable Gates was cross-examined at length about the
conversation she had with the applicant on 7 December 2016 but did not resile
from what she had recorded in her report of 23 December 2016.
76 Leading Senior Constable Hallam sent an email to Inspector McLay at 5.52am

on 8 December 2016 which contained the following:
At 10.00pm, I allocated LSC Gates to go to the job. LSC Gates called the
informant and enquired about the job as, according to the details on CAD,
seemed to be a property dispute. AT this point, A informed LSC Gates that the
POI is on bail and is also the defendant in an AVO. LSC Gates asked Cst
TODD why the job wasn’t created correctly with AVO and Bail etc. Cst Todd
replied, “I don’t put all that stuff in because it’s too hard to write the CAD off”
77 Leading Senior Constable Hallam also gave the following evidence before the
Commission:
25. The ‘Incident Header’ section of the CAD indicates that the incident was a
‘Domestic’. However, the description reads “Inf stated the ex-partner M
21/07/1977 is at the loc. POI is asking for the car back and the Inf is refusing.
Veh is registered to the Inf.” This description is consistent with the incident
being interpreted as a property dispute as Leading Senior Constable Gates
had said.
26. A short time later I heard Leading Senior Constable Gates talking
Constable Todd. She asked Constable Todd “Why didn’t you put all of the
information in the CAD?” Constable Todd said “It’s easier to write off.” Leading
Senior Constable Gates then came into the supervisor’s office and told me
about this conversation. I said something to the effect of “I heard. I will follow it
up.”
78 Leading Senior Constable Hallam was cross-examined about this aspect of his
evidence. The following exchange occurred with counsel for the applicant:
Q. Mr Todd’s case is that he didn’t say it was easier to write off.

A. Okay.
Q. Or words to that effect. Do you understand that?
A. Yep, okay.
Q. Do you agree you could be mistaken about it?
A. No.
Q. It’s a very serious thing for him to have said, isn’t it?
A. Yes, it is, yeah.
Q. You were supervising him at the time, weren’t you?
A. At that - on that shift, yes, yep.
Q. You didn’t speak to him about it on the night, did you?
A. No, no.
Q. Do you agree that it’s something that, as a supervisor, if it had of occurred
in the circumstances that you’ve set out, and you considered it to be a serious
thing for him to have done, you would have spoken to him about it?
A. Well, not at that time. I, I’d want to get everything together to work out what
actually happened.
Q. Do you have--
A. I didn’t know at this point he didn’t call the information in.
Q. You did know by the time you made the report with the email at 5.52am,
didn’t you?
A. Yeah, at 5.52am I did, yes, yep.
Q. He was on shift with you that shift, wasn’t he?
A. Yep, yep, he was probably gone by this stage.
Q. In the seven hours that elapsed, you found out about this not long after that
conversation with Leading Senior Constable Gates, didn’t you?
A. Partially, yes, yep. There was a lot more that happened after this.
Q. When do you say you first became aware that Mr Todd didn’t put the CAD
message with the ADVO reference?
A. At 22 - whatever time it was. When, when Leading Senior Constable Gates
had that conversation, and when I seen--
Q. You heard the conversation, didn’t you?
A. I did, yes.
Q. You considered it was serious?
A. Yep.
Q. You didn’t talk to him about it?
A. No, I didn’t.
Q. Because it didn’t happen, did it?
A. It did happen.
Findings with respect to Allegations 7, 8 and 9
79 Having observed the demeanour of Leading Senior Constables Gates and
Hallam in the witness box under cross-examination, I formed the opinion that
both of them were credible witnesses. I accept their evidence over that of the
applicant with respect to the conversation he had with Leading Senior
Constable Gates when he responded to her inquiry as to why he had not put all
the relevant information into the CAD system with words to the following effect:
“Cause it’s as easy to write off”.
80 It follows that, with respect to Allegation 7, I find that the applicant was
informed by A of the existence of the ADVO against M but deliberately chose
not to record this obviously important piece of information in the CAD system. I
agree with the respondent’s assessment that this omission adversely impacted
on response times and could have placed a person protected by an ADVO at
risk (see [6] above). In addition, it is important for the safety and welfare of
officers who might respond to such a job, that they have all available
information about the situation they are likely to encounter at the scene.
81 I also agree with the respondent’s determination with respect to Allegations 8

and 9 for the reasons set out in the Statement of Reasons. It follows that I
share the same concerns with the respondent as to his inability to rely upon the
applicant’s integrity as a police officer if he were to perform policing duties in
the future (see [6] above).
Allegation 10
82 With respect to Allegation 10, the respondent was not satisfied that the
applicant failed to promptly create the CAD message and made no adverse
finding in that regard. However, the respondent did find that the applicant did
not obtain any details from an informant who spoke to the applicant on the
phone and reported seeing three small children wandering the streets of
Temora. The respondent considered this to be another example where the
applicant failed to act with care and diligence (see [5] and [6] above).
83 I do not propose to give any further consideration to this allegation.
The medical evidence

Ms Josephine Cannon, Counselling Psychologist
84 The applicant began seeing Ms Cannon on 30 March 2017.
85 In a report to the applicant’s General Practitioner dated 4 August 2017, Ms

Cannon recorded the following:
3. During the course of counselling Mr. Todd reported the following

psychological symptoms:
• Depression - feeling flat and empty, lethargic, unmotivated and
miserable throughout the day.
• Feeling detached to others and lost interests in things he once
enjoyed.
• Having experienced problem sleeping for over three years and
frequent nightmares of "dying or involved in horror situations".
• Hypervigilant - worrying about people watching/looking at him and his
emails were being monitored.
• A lowering of temper/frustration threshold that resulted in frequent
rage outbursts.
• Avoids people and public places.
• Flashbacks - olfactory flashbacks of the smell at some scenes.
• Intrusive thinking about the past and the complaints.
• Dissociative features - "I feel spaced out and not knowing what's
happening around me".
• Hyperarousal especially when the telephone rang and immediately
thought "here comes another problem I can't fix".
• Heightened anxiety level with the accompanying physiological
reactions.
4. Diagnosis:
Mr. Tood (Todd) possess(es) symptoms consistent with the presentation of
Posttraumatic Stress Disorder 309.81 (F43.10) as specified in the DSM-5.
86 In a subsequent report to the applicant’s solicitors, Ms Cannon stated:
At the initial consultation on 30th March 2017, Cst Todd presented as

depressed and somewhat anxious. The Depression Anxiety Stress Scales
(DASS) was administered to Cst Todd that day. His test results showed his
depression was in the mild range.
During subsequent consultations Cst Todd began to relate his experiences in
policing and the complaints against him. This re-living of these events caused
his psychological state to continue to decline. A number of traumatic
experiences were also recounted and further psychological symptoms were
reported. Amongst other traumatic memories, Cst Todd described two
particular incidents that continue to haunt him - 1. on 15th March 2015 a young
female died from a head-on collision with a truck and 2. in early 2016 a
deceased person being found in a house. Cst Todd reported visual and
olfactory flashbacks on these two incidents.
I administered the DASS to Cst Todd on 3rd May 2017. Cst Todd's test results
placed his depression and anxiety in the extremely severe range, his stress
was in the severe range.
……………………………….
Treatment Administered:
I have conducted supportive counselling and Cognitive Behaviour Therapy
with Cst Todd. Through the initial stage of counselling, a healthy therapeutic
rapport was built. Cst Todd began to pay more attention to self care, he played
golf once and attended infrequent social outings with his family.
A number of trauma memories gradually emerged through the course of
consultation. That being said, Cst Todd's psychological state has not settled
enough nor legal proceedings completed for trauma therapy to begin.
87 The respondent considered these reports of Ms Cannon before issuing the
order removing the applicant from the NSW Police Force.
Dr Michael Prior, Consultant Psychiatrist

88 Dr Prior was engaged by the respondent’s workers compensation insurer in
relation to a workers compensation claim made by the applicant in June 2017.
The reports of Dr Prior are not relied upon by the applicant as expert evidence
per se. Nevertheless, it was submitted on behalf of the applicant that the
opinions expressed in them are persuasive and, in the discretionary weighing
of evidence, those opinions may be given appropriate weight.
89 In a report dated 7 September 2017, Dr Prior recorded the history and

symptoms as relayed to him by the applicant. Dr Prior then stated:
J. DIAGNOS1S
1. Diagnosls
i. Chronic Adjustment Disorder with Anxious and Depressed Mood
relating to his disciplinary matter and the uncertainty about his career
ii. Emergent Post-Traumatic Stress Disorder
iil. Mild Alcohol Use Disorder
2. Causation
The cause of Mr Todd's chronic Adjustment Disorder is his disciplinary
matter, his suspension, ramifications of this financially and on his
future, and the possibility that he will be terminated.
The cause of his emergent Post-Traumatic Stress Disorder was
exposure to traumatic scenarios in the course of his police work.
The cause of his mild Alcohol Use Disorder is that this is a secondary
phenomenon to both his Adjustment Disorder related to his disciplinary
matter and his emergent Post-Traumatic Stress Disorder.
3. Rationale for Opinion
I base my opinion upon his mental status examination, the history
elicited, my reading of the background material provided, and the fact
that he fulfils diagnostic criteria for the above diagnosis, the fact that he
does not fulfil diagnostic criteria for other competing differential
diagnostic possibilities, together with my education, training and
experience,
K. SPECIFIC SCHEDULE OF QUESTIONS AS LISTED IN YOUR LETTER
OF REFERRAL DATED 23 AUGUST 2017:-
• Please confirm the diagnosis according to the DSM-V.
For my opinion on diagnosis according to DSM 5 please see J/1 above
under the heading 'Diagnosis'.
• Please detail the reported mechanism of injury and whether this
is consistent with the diagnosis.
For the mechanism of injury and my opinion on causation of Mr Todd's
indexed psychiatric diagnoses please see section J/2 above under the
heading 'Causation'.
• Following review of the provided documents and your
examination of the worker, are James’ current presenting
symptoms the result of his suspension from NSW Police in
December 2016? Provide your rationale.
Mr Todd's current Adjustment Disorder symptomatology and his
secondary Alcohol Use Disorder relate to his suspension in December
2016 and ramifications of his suspension.
However, his emergent Post-Traumatic Stress Disorder relates to
exposure to traumatic scenarios during his service in the Police Force,
and predating his suspension in December 2016.
• If James had not been subject to professional standards review,
would he have any incapacity for work with NSW Police?
Mr Todd reported that if he had not been suspended that he would still
have been working. He reported that he was stressed by his workload
and how he was being treated by his superiors at work, but was still at
work prior to his suspension.
His suspension and the uncertainty and stress associated with this
precipitated his Adjustment Disorder, together with emergent
Post-Traumatic Stress Disorder symptomatology and his secondary
Alcohol Use Disorder.
• What is James’ current capacity? If totally unfit, please provide
anticipated timeframes that James would be able to participate in
a graded return to preinjury duties.
Mr Todd believes that he has current capacity to work as a police
officer and wishes to do so again, He is not fit, in my opinion, to return
to work in his indexed position in his indexed job at Wagga as this
would be highly anxiety-provoking and would most likely exacerbate
his conditions.
Because of his emergent Post-Traumatic Stress Disorder
symptomatology, it would be prudent for him to work in an alternative
capacity ln the Police Force where he is not exposed to significantly
traumatic events. Exposure to further traumatic events will in most
likelihood exacerbate and perpetuate his emergent Post-Traumatic
Stress Disorder.
In my opinion, Mr Todd is fit to commence a graduated return to work
program in restricted duties in a different work location where he is not
exposed directly to potentially traumatic scenarios or exposed to them
vicariously. Any graduated return to work should be overseen by his
treating general practitioner and treating psychologist, and preferably
he should be referred to a consultant psychiatrist with expertise in the
treatment of Post-Traumatic Stress Disorder and be commenced on
antidepressant medication, which is one of the arms of the treatment of
choice for Post-Traumatic Stress Disorder in conjunction with ongoing
exposure-type cognitive behavioural therapy.
It is my opinion that it would not be prudent for him to return to frontline
duties with the danger of exposure, either directly or vicariously, to
further traumatic scenarios without the initiation of aggressive and
quality treatment for his emergent Post-Traumatic Stress Disorder.
• In your opinion, does James have capacity for work outside
NSW Police? If so, please include any alternative work that would
be suitable.
It is my opinion that Mr Todd does have capacity to work outside the
NSW Police Force... He reported that he has trained as a mechanic
and could work in this capacity. His psychiatric diagnoses would not
preclude him from working ln this capacity.
• What is the return to work goal?
Same job, same employer
Different job, same employer
Different job, different employer
If different employer, is this a permanent restriction?
Because of his emergent Post-Traumatic Stress Disorder, Mr Todd's
ideal work goal in my opinion is a different job and a different
employer. However, he wishes to return to policing. If he does return to
policing, which is his desire currently, then he should return to a
different job within the Police Force and not return to working in the
Wagga area. As mentioned above, it is my opinion that he should not
be doing frontline duties or working in a capacity where he Is directly
exposed to further potential traumatic events or vicariously exposed to
these.
Given the nature of Post-Traumatic Stress Disorder, once established,
further exposure to traumatic scenarios will invariably exacerbate and
perpetuate this condition. The treatment of choice for an individual
diagnosed with Post-Traumatic Stress Disorder is removal from
exposure to further potential traumatic scenarios or vicarious exposure
to traumatic scenarios, and this is often best facilitated by a change of
profession. It is my opinion that these restrictions are permanent.
• What is the recommended treatment for James? Include the
type, frequency and duration if possible.
The recommended treatment for Mr Todd's Post-Traumatic Stress
Disorder is exposure-type cognitive behavioural therapy administered
by an experienced clinical psychologist, together with appropriate
antidepressant medication under the care of a consultant psychiatrist
experienced in the treatment of Post-Traumatic Stress Disorder.
The treatment of choice for his Adjustment Disorder related to the
disciplinary matter is that once this matter is finalised one way or
another and he comes to terms with these changes, then his
Adjustment Disorder will remit.
The treatment of choice for his Alcohol Use Disorder is that he needs
to cease alcohol consumption and remain abstinent from alcohol. This
will be easier when his Adjustment Disorder ceases and he has had
treatment for his emergent Post-Traumatic Stress Disorder.
90 In a supplementary report dated 13 December 2017, Dr Prior stated:
You ask the following specific supplementary questions:

(a) Your opinion as to whether the worker’s injury is wholly or
predominantly caused by his anxiety as a result of the
disciplinary process and his subsequent suspension. Please
provide detailed reasoning.
As referred to above in quotations from my indexed report dated 7
September 2017, it is my opinion that the cause of Mr Todd’s chronic
Adjustment Disorder is his disciplinary matter, his suspension,
ramifications of this financially and on his future, and the possibility that
he will be terminated.
It is possible that his emergent Post-Traumatic Stress Disorder
symptomatology contributed to the complaints made against him
resulting in the disciplinary action taken against him. He also notes as
a background to his suspension that he had a heavy workload that he
found stressful and found that he never had enough time to get things
done.
Although his Adjustment Disorder relates to the disciplinary process
and subsequent suspension and ramifications of these, it is possible
and likely that his other disorder, his emergent Post-Traumatic Stress
Disorder, contributed to some degree to his behaviour resulting in
complaints against him, which ultimately resulted in the disciplinary
action against him, It is also possible that his workload and the stress
he describes as a result of his workload, also contributed.
On balance, it is my opinion that his Adjustment Disorder was
predominantly caused by the disciplinary process and his subsequent
suspension and ramifications these, but not wholly, in that his other
disorder of emergent Post-Traumatic Stress Disorder and his workload
were vulnerability factors to him developing his indexed Adjustment
Disorder.
His emergent Post-Traumatic Stress Disorder does not relate to the
disciplinary process at all, but relates to exposure to accumulative
traumatic scenarios during his service in the Police Force, and
predated his suspension and predated the disciplinary action against
him. Therefore, his emergent Post-Traumatic Stress Disorder does not
relate to his suspension in December 2016 but relates to trauma he
was exposed to during his police service generally.
(b) Whether, but for the injury resulting from the disciplinary
process, he would be fit for employment in his pre-injury duties in
Wagga Wagga.
Mr Todd's chronic Adjustment Disorder relates to the disciplinary
process and but for this disciplinary process he would still be fit for
employment in his pre-injury duties in Wagga.
However, the disciplinary process did not cause his emergent Post-
Traumatic Stress Disorder, which relates to exposure to previous
traumatic scenarios he was involved in during his police service.
It is most likely that without the disciplinary process and without the
disciplinary process precipitating an Adjustment Disorder on top of his
emergent Post-Traumatic Stress Disorder, that he would still be fit for
his pre- injury duties in Wagga.
However, ultimately, it would be expected that his emergent Post-
Traumatic Stress Disorder would be perpetuated and further
exacerbated over time with exposure to ongoing traumatic scenarios,
and that at some future date, that his exacerbated Post-Traumatic
Stress Disorder would negatively impact on his work capacity.
Dr Michael Diamond, Consultant Psychiatrist
91 Dr Diamond saw the applicant for an initial assessment on 4 December 2017.
In a report to the respondent’s workers compensation insurers, Dr Diamond
stated:
Opinion
I have attempted a comprehensive assessment in the limited time available on
the first occasion that I saw Mr Todd. He has a history that is highly suggestive
of posttraumatic stress disorder, although it appears that he is quiet by nature,
uncomplaining and significantly affected by emotional numbing and avoidant
symptoms. He has not been demonstrative in expressing his distress. It
appears to me that there is strong reason to suspect that he has undergone a
significant change in his mental health and in his ability to function in the
workplace and that this may have manifested as avoidant symptoms that are
associated with the unsatisfactory work performance that has generated
internal complaints. It seems that the change in his demeanour in the
workplace and in his performance has been dealt with along disciplinary lines
in the absence of enquiry about possible effects in relation to work trauma.
He appears to be clinically depressed.
The most likely work related trauma that is causative of his current condition is
the severe motor vehicle accident in early 2016 involving the death of the
young woman and his personalised attachment to the scene of the accident
site and to the deceased as a result of the visual cues and the search for the
presumed missing baby at the time.
My view is that Mr Todd has developed posttraumatic stress disorder with
comorbid depression but I need to continue the assessment and to further
meet with him so as we can formulate a management plan.
He is seeing a competent and experienced psychologist who has dealt with
many police officers locally at Wagga Wagga and I suspect that he can receive
considerable valuable treatment with her over the coming months. My view is
that he will need further psychiatric review and treatment and especially
assessment of the extent of depressive illness, hyperarousal and the likely role
of pharmacotherapy to assist him in recovery.
The above views are as far as I can go with regard to diagnosis. His illness is
clearly present. It is a question of whether it is primarily posttraumatic stress
disorder with co-morbid depressive illness which has to be confirmed. The
mechanism of injury in my opinion is related to significant trauma within the
workplace.
At present Mr Todd's capacity for work within the NSW Police Force at Wagga
Wagga is not established. He is in a stressful and non-supportive environment
that will not aid recovery for him.
He does however express a wish to pursue his career as a police officer if he
is able to overcome the Section 181D Notice.
He understands that he would best be able to continue to function as a police
officer following appropriate treatment and following relocation away from the
workplace at Wagga Wagga.
Pending further assessment he may benefit from rehabilitation initiatives.
My assessment does not identify any co-morbidities that are likely to impact on
the management of Mr Todd's condition.
My recommendation is that Mr Todd attends again to continue the assessment
and engage in appropriate specialist psychiatric management with me at
probably four-to-six weekly intervals to begin with and that he continues to see
his psychologist and general practitioner locally.
Dr Paul Friend, Consultant Psychiatrist
92 Dr Friend was engaged by the applicant’s solicitors to examine the applicant
and prepare a report for use in these proceedings. Dr Friend was provided with
a number of documents including the respondent’s Statement of Reasons and
reports by Ms Cannon, Dr Prior and Dr Diamond. Dr Friend examined the
applicant on 28 June 2018. His report contained the following responses to
specific questions asked of him by the applicant’s solicitors:
In reply to your questions

1. Please provide your retrospective diagnosis of psychiatric conditions
by reference to the current DSM, and for each condition provide your
opinion in relation to the following:
a) The nature, extent and severity of the past presenting
symptoms and
associated disabilities
b) The periods during which each diagnosed condition was
suffered or operative
c) The probable cause of each diagnosed condition
d) The nature and extent of the effect of each diagnosed condition
had upon his ability to function, perform his duties as a police
officer
e) Your opinion regarding the causal connection between each
diagnosed condition and his behaviour in the workplace and the
various allegations admitted and denied and relied upon by the
Commissioner of Police
f) Whether in the past he has received appropriate treatment for
his illness or conditions
Mr Todd following the incident of attending the multi vehicle accident on 17
April 2015 developed symptoms consistent with three psychiatric conditions.
He developed an Alcohol Use Disorder consuming at least 28 standard drinks
each week of homemade beer. This was in the form of at least four standard
drinks each night or day.
He also developed the condition of Major Depression. He had a lack of
motivation, drive and energy. It was more difficult to get to work.
His concentration and memory were impaired. He found it more difficult to
remember police procedures and to undertake his duties as a police officer.
He also reached criterion for a diagnosis of Adjustment Disorder with Anxious
Mood. He was experiencing nightmares as described as a result of the various
events in the police particularly the motor accident on 17 April 2015 but also a
house fire that he had attended earlier in his police career. He was particularly
upset by certain smells anything that would remind him of the house fire
particularly cigarette smoke. He was irritable or easily irritated with his children
and his wife. He checked every night on the welfare of his children and was
generally more concerned about his children particularly about his son, Lincoln
getting out of his car seat.
He did not avoid work or other situations or other reminders of the various
traumatic situations that he had attended because of the nightmares and other
symptoms and therefore does not meet category C of the Diagnostic and
Statistical Manual of Mental Disorder 5th Edition, for a diagnosis of
Posttraumatic Stress Disorder.
He did but he did find it more difficult to go work and he avoided contact with
other police officers but this could be explained by the condition of Major
Depression. He continued to function as a police officer.
Mr Todd in his statement states that his wife developed postnatal depression
in April 2014 following the birth of their second child on 13 December 2013. He
described the relationship starting to fall apart in March 2016. It appears that
these conditions had a marked adverse effect on the relationship with his wife
and resulted in her having a brief extra marital relationship in December 2015.
It therefore appears that the breakdown in the relationship with his wife which
although the marriage continues there are still difficulties and the relationship
can be attributed to these conditions. It does not appear that the breakdown in
the marriage started prior to 17 April 2015.
These three conditions arise from the injuries that Mr Todd has suffered in the
course of his police career. The most notable one was on 17 April 2015 but
there was also a previous house fire.
These conditions would adversely affect his ability to function as a police
officer particularly regarding his ability to concentrate, retain information, write
reports and to follow accepted police procedures.
Mr Todd after 17 April 2015 had a loss of confidence about his ability to do
police work and tried to get others to check the work that he had undertaken
particularly entering documentation as a consequence of having his poor
concentration and difficulty following accepted police procedures.
It appears that these three conditions were significant factors in the various
reported incidents regarding his performance as a police officer.
Mr Todd denied not following police procedure and cannot explain some of his
actions particularly the incident on 31 March 2016 involving leading Senior
Constable Nicole Harmer asking for urgent assistance in the police cells.
He also believes he was specifically targeted by Sergeant Brunyee after the
ending of Sergeant Brunyee's relationship with his partner, Victoria.
Mr Todd has received treatment for his conditions but it does not appear to
have been adequate. It was not adequate as regards to the length of treatment
which was 6 to 7 sessions of psychological treatment and he was not
prescribed any antidepressant medication until the week prior to this
examination.
2. Your present diagnosis of psychiatric conditions by reference to the
terms of the current DSM
Mr Todd currently reaches criterion for diagnoses of Major Depression and
Adjustment Disorder with Anxious Mood. He has ceased consuming alcohol in
the past week and therefore the condition of Alcohol Use Disorder is currently
in remission.
He continues to have the symptoms of the conditions of Major Depression and
Adjustment Disorder with Anxious Mood, but they are of lesser intensity since
he ceased working as a police officer.
3. In your opinion what is the appropriate treatment plan for Mr Todd?
Mr Todd should continue to have psychological treatment preferably with Ms
Josephine Cannon. He cannot afford the cost of consulting Ms Cannon with
the current combined income that he and his wife earn. He would need to a
minimum of a further ten sessions of treatment and possibly as many as 20
sessions of treatment over the next 6-9 months.
He needs a longer trial of paroxetine and that antidepressant may need to be
changed in the future. The current paroxetine trial should be for a minimum of
three months in the maximum dose he can tolerate or the maximum dose that
is recommended whichever is the lower.
If this is unsuccessful he should have a trial of a serotonin noradrenaline
reuptake inhibitor antidepressant, such as desvenlafaxine and if required a trial
of a tricyclic antidepressant such as nortriptyline. Both these medications
should be trialled for at least three months each, in the maximum tolerated
dose or the maximum recommended dose, whichever is the lower.
I would also recommend the prescription of naltrexone or acamprosate in the
recommended therapeutic doses or the maximum doses that he can tolerate,
which ever is the lower, to help him maintain abstinence from alcohol.
4. Assuming the appropriate treatment plan that you have identified is
implemented, your opinion regarding prognosis and his capacity to
perform his duties as a police officer
Mr Todd could duties as a general duties police officer with certain restrictions.
He should resume working in a different geographical area. It is unlikely he
could resume working at Wagga Police Station or in that area. He feels that
Sergeant Brunyee, in particular, and others to a lesser extent, have unfairly
criticised him and have not been particularly helpful.
Mr Todd is keen to resume his career as a police officer and believes he
continues to have the skills and capacity to do so.
The cessation of alcohol is a good prognostic factor, if that can be maintained.
Abstinence from alcohol is likely to have a beneficial effect on the conditions of
Major Depression and Adjustment Disorder with Anxious Mood.
Mr Todd's relationship with his wife is improving, although they are under
financial strain at present because of his reduced income.
It is also a good prognostic factor that he has resumed work, albeit installing
accessories on motor vehicles but this is work for which he is qualified
because of his previous training as a motor mechanic.
93 Under cross-examination, Dr Friend gave the following evidence:
Q. Could it be the case as well, Dr Friend, that whilst trauma may manifest
itself over a period of time, that the behaviours and ability to function as an
individual in day-to-day life or in their professional capacity is also affected by
other matters which are not related to their psychiatric condition?
A. Of course.
Q. And it could be related to the fact that they have other workplace stressors?
A. Mmm.
Q. And it could be related to the fact that they're just not very good as an
individual in terms of what they're doing in their day-to-day job?
A. Well, it could be. I mean, those could be factors, yes.
Q. And so trying to assign any linkage between a psychiatric condition such as
major depression or anxiety disorder to the ability of an individual to function in
day-to-day life and perform their work is a very complicated and nuanced
evaluation?
A. Yes.
Q. And what you need to do in identifying that is to try to isolate, if you can,
how that traumatic event may have potentially impacted on a person’s ability to
function, such as their concentration, the ability to sit down and focus on their
duties, things of that nature?
A. Sure.
…………………………..
Q. You say, “These three conditions arise from injuries that Mr Todd has
suffered in the course of his police career.” So just pausing there, just so we’re
clear, the three conditions to which you refer in that paragraph are the alcohol
abuse disorder, the major depression and the adjustment disorder with
anxious mood, correct?
A. Yes.
Q. And you've ruled out any diagnosis of PTSD?
A. Yes, as I’ve explained.
Q. And you've seen I think in Dr Prior’s report he referred to emergent PTSD
as a potential diagnosis?
A. Yes.
Q. And you obviously disagree with that potential diagnosis - that--
A. Well, yeah, I mean, this is always a point, is to whether you meet all criteria
for post traumatic stress disorder. It’s a diagnosis that’s used very, in my
opinion, very liberally in regard to trauma and I’ve tried and I think I’ve
explained to you why I believed he didn’t meet the strict criteria for that. Now,
we could argue about the criteria. You know, are they useful or not? But
they're what we’ve got.
……………………………
Q. Now, given the workplace stressors appear to start in early 2016, would you
agree that, given the proximity in time is much closer than the traumatic event
in 2015, it is entirely possible it is the workplace stressors associated with the
workplace complaints that led to the conditions or at least contributed the
conditions in a much stronger way than a traumatic event?
A. Well, contributed to the conditions, yes. Now, very hard to say which had
the greatest impact.
Q. And trying to disentangle them is obviously not a science. It involves a
degree of latitude and impression?
A. Yes.
Q. Given your expertise?
A. Yes.
Q. But it’s hard for you to say with any level of scientific precision just to say a
particular traumatic event contributed a particular percentage to the
manifestation of particular symptoms?
A. Yeah, it’s virtually impossible.
94 In my opinion, the medical evidence set out above falls short of establishing a
causal connection between the applicant’s mental state and the sustained
allegations against him which formed the basis of the respondent’s decision to
remove him from the NSW Police Force, especially with respect to Allegations
1, 4, 7, 8 and 9. There is disagreement among the medical experts, in
particular between Dr Prior and Dr Friend, as to whether or not the applicant
was suffering from PTSD as a result of exposure to traumatic events as part of
his work as a police officer.
95 Dr Diamond stated: “It appears to me that there is strong reason to suspect

that he has undergone a significant change in his mental health and in his
ability to function in the workplace and that this may have manifested as
avoidant symptoms that are associated with the unsatisfactory work
performance that has generated internal complaints. It seems that the change
in his demeanour in the workplace and in his performance has been dealt with
along disciplinary lines in the absence of enquiry about possible effects in
relation to work trauma”.
96 In relation to his diagnoses of Alcohol Use Disorder, Major Depression and

Adjustment Disorder with Anxious Mood, Dr Friend stated: “These conditions
would adversely affect his ability to function as a police officer particularly
regarding his ability to concentrate, retain information, write reports and to
follow accepted police procedures”.
97 In my assessment, these expressions of opinion fall short of “reliable medical

evidence” of the sort referred to by the Full Bench (Boland J, President, Staff J,
Backman J) in the following passage from Corrective Services NSW v Danwer
([2013] NSWIRComm 61 at [57]-[59]):
57 We have considered whether there are any mitigating factors in relation to
the respondent's conduct. The evidence about that is not very clear. On the
one hand, there was the evidence of Dr Tony Robinson who had a doctorate in
clinical psychology and practised as a clinical psychologist. Dr Robinson
stated:
There is no evidence that Mr Danwer is suffering a psychosexual
disorder (ie exhibitionism). It is my thought that if he was acting in an
unusual way, it may be explained more by his hyperthyroidism
condition that was undiagnosed at the time.
58 On the other hand, Dr Robinson said in a later report that Mr Danwer 'has a
good understanding of how exhibitionism can affect ...its victims." Further, the
respondent had undergone a series of sessions of "focussed psychosexual
treatment".
59 If there had been reliable medical evidence that the respondent's conduct
had been caused or contributed to by mental or physical illness that may have
been a factor to be taken into account in mitigation: see Wells and
Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Bradley
Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14; Fire Brigade
Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and
Fire & Rescue NSW [2013] NSWIRComm 57. However, there was no medical
evidence (a clinical psychologist is not a medical doctor nor a psychiatrist) and
even if Dr Robinson's evidence could have been regarded as such, it was
inconclusive for the purpose of any consideration about mitigation.
98 I am unable to find that the failings of the applicant in his role as a member of
the NSW Police Force, which led to his removal from the force, were
attributable to his mental health issues.
99 If anything, the medical evidence relied upon by the applicant suggests that
returning him to the NSW Police Force and exposing him to the traumatic
experiences that police officers regularly encounter as part of their day to day
work could well have a detrimental impact on his mental well-being.
The legislative scheme

100 Relevant sections of the Police Act are set out below:
Division 1B Summary removal of police officers in whom the

Commissioner does not have confidence
181D Commissioner may remove police officers
(1) The Commissioner may, by order in writing, remove a police officer from
the NSW Police Force if the Commissioner does not have confidence in the
police officer’s suitability to continue as a police officer, having regard to the
police officer’s competence, integrity, performance or conduct.
(2) Action may not be taken under subsection (1) in relation to a Deputy
Commissioner or Assistant Commissioner except with the approval of the
Minister.
(3) Before making an order under this section, the Commissioner:
(a) must give the police officer a notice setting out the grounds on
which the Commissioner does not have confidence in the officer’s
suitability to continue as a police officer, and
(b) must give the police officer at least 21 days within which to make
written submissions to the Commissioner in relation to the proposed
action, and
(c) must take into consideration any written submissions received from
the police officer during that period.
(4) The order must set out the reasons for which the Commissioner has
decided to remove the police officer from the NSW Police Force.
(5) The removal takes effect when the order is made.
(6) (Repealed)
(7) Except as provided by Division 1C:
(a) no tribunal has jurisdiction or power to review or consider any
decision or order of the Commissioner under this section, and
(b) no appeal lies to any tribunal in connection with any decision or
order of the Commissioner under this section.
In this subsection, tribunal means a court, tribunal or administrative review
body, and (without limitation) includes the Industrial Relations Commission.
………………………….
Division 1C Review of Commissioner’s decision under Division 1B
181E Review generally
(1) A police officer who is removed from the NSW Police Force by an order
under section 181D may apply to the Industrial Relations Commission
(referred to in this Division as the Commission) for a review of the order on the
ground that the removal is harsh, unreasonable or unjust.
(2) An application under this section does not operate to stay the operation of
the order in respect of which it is made.
(3) Except to the extent to which the regulations otherwise provide, it is the
duty of the Commissioner to make available to the applicant all of the
documents and other material on which the Commissioner has relied in
deciding that the Commissioner does not have confidence in the applicant’s
suitability to continue as a police officer, as referred to in section 181D (1).
181F Proceedings on a review
(1) In conducting a review under this Division, the Commission must proceed
as follows:
(a) firstly, it must consider the Commissioner’s reasons for the decision
to remove the applicant from the NSW Police Force,
(b) secondly, it must consider the case presented by the applicant as
to why the removal is harsh, unreasonable or unjust,
(c) thirdly, it must consider the case presented by the Commissioner in
answer to the applicant’s case.
(2) The applicant has at all times the burden of establishing that the removal of
the applicant from the NSW Police Force is harsh, unreasonable or unjust.
This subsection has effect despite any law or practice to the contrary.
(3) Without limiting the matters to which the Commission is otherwise required
or permitted to have regard in making its decision, the Commission must have
regard to:
(a) the interests of the applicant, and
(b) the public interest (which is taken to include the interest of
maintaining the integrity of the NSW Police Force, and the fact that the
Commissioner made the order pursuant to section 181D (1)).
181G Application of Industrial Relations Act 1996 to reviews
(1) The provisions of the Industrial Relations Act 1996 apply to an application
for a review under this Division in the same way as they apply to an application
under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this
Division and to the following modifications:
(a) section 83 (Application of Part) is to be read as if subsection (3)
were omitted,
(b) section 85 (Time for making applications) is to be read:
(i) as if a reference to 21 days in that section were instead a
reference to 14 days, starting from the day on which the
applicant is given a copy of the order to which the application
relates, and
(ii) as if subsection (3) were omitted,
(c) section 86 (Conciliation of applications) is to be read as if it
provided that a member of the Commission who is involved in any
endeavour to settle the applicant’s claim by conciliation must not
subsequently be involved in the conduct of proceedings on the review,
(d) section 89 is to be read as if subsection (7) (Threat of dismissal)
were omitted,
(e) section 162 (Procedure generally) is to be read as if the
requirement of subsection (2) (a) of that section that the Commission is
to act as quickly as is practicable were instead a requirement for the
Commission to commence hearing the application within 4 weeks after
the application is made,
(f) section 163 (Rules of evidence and legal formality) is to be read as
if it provided that new evidence may not be adduced before the
Commission unless:
(i) notice of intention to do so, and of the substance of the new
evidence, has been given in accordance with the regulations
under this Act, or
(ii) the Commission gives leave.
(2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in
such circumstances as it thinks fit and having regard to the nature of
proceedings under section 181F, and without limiting the generality of the
foregoing, the Commission must grant leave in the following circumstances:
(a) where the Commission is satisfied that there is a real probability
that the applicant may be able to show that the Commissioner has
acted upon wrong or mistaken information,
(b) where the Commission is satisfied that there is cogent evidence to
suggest that the information before the Commissioner was unreliable,
having been placed before the Commissioner maliciously, fraudulently
or vexatiously,
(c) where the Commission is satisfied that the new evidence might
materially have affected the Commissioner’s decision.
Determination
101 I have given consideration to the respondent’s Statement of Reasons, as I am
required to do by section 181F of the Police Act, and am in general agreement
with it. I have also considered the case presented by the applicant, including
the medical evidence and the evidence about the significant impact that his
removal from the NSW Police Force has had on him and his family. However, I
have determined that the order removing the applicant from the NSW Police
Force was not harsh, unreasonable or unjust.
102 Further, I have had regard to the public interest which is taken to include the
interest of maintaining the integrity of the NSW Police Force and I am unable to
disagree with the conclusion reached by the respondent to the effect that the
applicant has regularly failed to meet the standards of conduct and
performance that the respondent rightfully expects of sworn members of the
NSW Police Force.
103 The application by James Todd for review of the respondent’s order removing
him from the NSW Police Force is dismissed.
104 I so order.
John Murphy
Commissioner
**********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory
provisions prohibiting publication that may apply to this judgment or decision. The onus remains on
any person using material in the judgment or decision to ensure that the intended use of that
material does not breach any such order or provision. Further enquiries may be directed to the
Registry of the Court or Tribunal in which it was generated.

James Todd V Commisioner of Police

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James Todd V Commisioner of Police

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Industrial Relations Commission

New South Wales

Case Name: Todd v Commissioner of Police

Medium Neutral Citation: [2019] NSWIRComm 1048

Hearing Date(s): 5, 6 and 7 June, 11 July, 29, 30 and 31 October, 1, 5, 6,

Decision Date: 7 August 2019

Jurisdiction: Industrial Relations Commission

Decision: The application by James Todd for review of the order

Catchwords: POLICE – removal of police officer – s. 181D Police Act

Legislation Cited: Police Act 1990

Cases Cited: Corrective Services NSW v Danwer [2013]

Category: Principal judgment

Parties: James Todd (Applicant)

• Leading Senior Constable Shannon Gates

9 On 18 August 2014 the applicant was issued with a Commander’s Warning

10 The applicant completed his period as a Probationary Constable on 21 August

13 The applicant commenced seeing Josephine Cannon, Counselling

• admitted Allegation 1 and sincerely apologised for his behaviour;

The Warning Notice – August 2014

17 Although no direct evidence was led by the respondent as to the circumstances

I find, on the balance of probabilities, although having regard to the

85. According to Sergeant Huggett’s report in my discussion with him about

92. As a result of my review of the material referred to in the preceding

The case for the respondent

On Thursday 31 March 2016 I was conducting duties as custody manager at

Q. Do you agree that it is possible, as a consequence of you agreeing that it

36 Instead of going immediately to assist Leading Senior Constable Shaw, the

37 Despite my acceptance of the applicant’s claim that he was unaware that

38 I am unable to accept that the applicant’s unhappy domestic situation at that

I find, on the balance of probabilities, although having regard to the

42 Allegation 2 concerned the applicant effecting service of an application for an

50 Inspector McLay gave the following evidence:

I find, on the balance of probabilities, although having regard to the

55 The applicant’s witness statement contained the following:

Allegation 4 - May 2015

57 Inspector McLay gave the following evidence:

Q. As you understand. So there’s a direction there being made to you by

A chronology monitoring your conduct commenced on 16 April 2016, when

I find, on the balance of probabilities, although having regard to the

I find, on the balance of probabilities, although having regard to the

64 In his witness statement, the applicant stated:

Allegation 5 - April to December 2016

I find, on the balance of probabilities, although having regard to the

3. In order to make this statement, I have refreshed my memory from Police

Allegation 7 - December 2016

73 With respect to Allegations 8 and 9, the respondent regards these matters as

74 On 23 December 2016, Leading Senior Constable Gates created a “Godfrey

76 Leading Senior Constable Hallam sent an email to Inspector McLay at 5.52am

Q. Mr Todd’s case is that he didn’t say it was easier to write off.

81 I also agree with the respondent’s determination with respect to Allegations 8

83 I do not propose to give any further consideration to this allegation.

The medical evidence

85 In a report to the applicant’s General Practitioner dated 4 August 2017, Ms

3. During the course of counselling Mr. Todd reported the following

At the initial consultation on 30th March 2017, Cst Todd presented as

Dr Michael Prior, Consultant Psychiatrist

89 In a report dated 7 September 2017, Dr Prior recorded the history and

You ask the following specific supplementary questions:

In reply to your questions

95 Dr Diamond stated: “It appears to me that there is strong reason to suspect

96 In relation to his diagnoses of Alcohol Use Disorder, Major Depression and

97 In my assessment, these expressions of opinion fall short of “reliable medical