Gary Remoundos v The Commissioner of Police
[2006] NSWDC 40
•06/02/2006
CITATION: Gary Remoundos v The Commissioner of Police [2006] NSWDC 40 HEARING DATE(S): 30/05/2006-02/06/2006 EX TEMPORE JUDGMENT DATE: 06/02/2006 JURISDICTION: Civil (Residual Jurisdiction) JUDGMENT OF: Neilson DCJ at 1 DECISION: Set aside the decision of the Commissioner of Police; The suffering by the plaintiff of the infirmity of “chronic dysthymic disorder with anxiety features”, as specified in the certificate of the Police Superannuation Advisory Committee was caused by the plaintiff’s having been hurt on duty; Defendant to pay the plaintiff’s costs CATCHWORDS: Police - Psychological injury - Officer applies to be medically discharged - Resigns - STC certified chronic dysthymic disorder with anxiety features - Commissioner decides former officer not hurt on duty - Appeal from decision - Two unfounded allegations against officer delayed promotion for 5 years - Later complaint by senior officer - Criminal investigation leads to punitive transfer - Disorder arose out of or in course of employment - Officer subsequently develops drug habit and engages in drug trafficking - Conviction and imprisonment - Appeal succeeds - Police Regulation (Superannuation) Act 1906 (NSW), s 1(2) “hurt on duty”, s 21 - Workers Compensation Act 1987 (NSW), s 47 LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 (NSW)
Workers Compensation Act 1987 (NSW)CASES CITED: Calman v The Commissioner of Police (1999) 16 NSWCCR 389
Townsend v The Commissioner of Police (1992) 25 NSWCCR 9PARTIES: Gary Remoundos (Plaintiff)
Commissioner of Police (Defendant)FILE NUMBER(S): RJ482/03 COUNSEL: Mr K Earl (Plaintiff)
Mr A Kostopoulos (Defendant)SOLICITORS: Baker & Edmunds (Plaintiff)
Legal Services, NSW Police Service (Defendant)
JUDGMENT
1 His Honour: The plaintiff, Mr Gary Remoundos, is a former Senior Constable of Police. He was attested as a Probationary Constable of Police on 10 October 1986 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (the Act).
2 The plaintiff last physically worked as a member of the Police Force on 7 February 2000. On 10 July 2001 the plaintiff made an application to be medically discharged from the New South Wales Police Force. Prior to that application being dealt with, the plaintiff resigned from the Police Force on 30 January 2002.
3 On 24 April 2003 the Police Superannuation Advisory Committee (the PSAC) established under the Act, and acting as delegate for the SAS Trustee Corporation, certified, pursuant to s 10B(2) of the Act that, at the time that the plaintiff resigned from the New South Wales Police Force, he was incapable of discharging the duties of his office on account of the infirmity of “chronic dysthymic disorder with anxiety features”.
4 On 13 May 2003 the defendant, the Commissioner of Police, determined that the suffering by the plaintiff of that infirmity was not caused by the plaintiff’s having been hurt on duty. From that decision of the defendant, the plaintiff brings an appeal pursuant to section 21 of the Act.
5 At the outset I must say that I have been dealing with these matters now for 12 years on the Bench. Of the many cases that I have determined under the Act, I have found this case to be factually the most difficult to determine. It is not because the facts are themselves complex, but it is the inferences to be drawn from such facts and questions of credibility that cause me difficulties.
6 The plaintiff was born on 10 August 1964. He is now forty-one years of age. He attended Lewisham Public School to year four and then commenced studying at Christian Brothers High School at Lewisham, where he stayed until he completed his HSC.
7 The plaintiff’s background before commencing in the Police Force is best set out in the report of Dr Wendy Walker of 11 June 2000 on page 3. It is this:
“After the HSC he worked part-time as a waiter, delivery boy and driver, and went to TAFE to study accountancy; he gave this up after twelve months, finding it quite dull. He applied to join the Police Service in mid-1984 and was accepted in 1986 (there was a waiting list); while he was waiting to join the Police Service, he spent three months in Greece with relatives.”
8 That can be expanded a little to point out that the plaintiff worked assisting his father’s business, which appears to have been a spare parts business.
9 The plaintiff commenced at the Goulburn Police Academy on 21 July 1986. He successfully completed his studies there and was attested as a Probationary Constable of Police on 10 October 1986. His first posting was to the Petersham Station, and the plaintiff was to perform all of his police work either at Petersham or Marrickville. Petersham and Marrickville were merged or combined in approximately July 1997, as I understand it. The plaintiff performed general duties policing until being appointed to the Licensing Police in mid-1998.
10 On 28 May 1987 the plaintiff was punched in the face by an offender whom he was trying to arrest. There is no dispute that the plaintiff suffered an injury arising both out of and in the course of his service. He suffered an injury to his nose, the left side of his face and some dizziness. He made a successful claim for hurt on duty benefits. The injury was a relatively minor one.
11 On 6 June 1987 the plaintiff attended at a house and came across the body of an elderly lady who had died some time before. The house was in a poor state of maintenance and the plaintiff suffered fleabites to his groin, arms, chest and legs. That required medical attention. The plaintiff made a hurt on duty application and that application was successful.
12 On 10 October 1987, the plaintiff was appointed as a Constable of Police. He had successfully served his probation.
13 The plaintiff had, from his high school days, an interest in rugby league and, the evidence discloses, maintained that interest at least until 2001. Early in the plaintiff’s police career he was playing rugby league for a NSW Police Force team. Some time immediately prior to 5 August 1988, he fractured his right clavicle whilst playing rugby league for a NSW Police team. That caused him to go off work. He returned to work on restricted duties on 22 August 1988 and eventually was returned to full duties on 4 October 1988.
14 The plaintiff did not make a claim for hurt on duty benefits for the fracture of his right clavicle, although he may well have been entitled to do so. It appears that he was not given advice as to his full legal rights.
15 On 17 January 1989, the plaintiff struck his left knee on furniture at a police station. He sustained an effusion of his left knee as well as soreness. He again made a hurt on duty application, which, as I understand it, was successful. The injury was not of any great moment.
16 On 2 December 1989, the plaintiff married his current wife, Rebecca, who was then a policewoman. The plaintiff and Rebecca had met at the Goulburn Police Academy. The plaintiff’s wife remained in the Police Force until 1992, when she was forced to give up duty after sustaining injury in a motor vehicle accident.
17 The plaintiff and his wife have been blessed with two children, a son, Matthew and a daughter, Chloe, both of whom, it would appear, are still at primary school, if my understanding of the chronology be correct.
18 Prior to marrying Rebecca, the plaintiff had been living with his parents at Dulwich Hill, which, as I understand it, is the area in which he had grown up. He then moved to live with his in-laws at Carlingford for about 6 months whilst the plaintiff’s matrimonial home was being built. That matrimonial home is at Dural.
19 In July 1990 the plaintiff and his wife moved to Dural and the plaintiff’s family still resides in that matrimonial home.
20 I wish at this stage to leave aside questions of operational incidents which the plaintiff experienced during his police service. I wish at this time to concentrate on what I would refer to as administrative or departmental incidents which loom large in the plaintiff’s case.
21 On 24 July 1992, the plaintiff was charged with making a false statement in order to obtain a financial benefit. He was then suspended from duty.
22 The plaintiff told me that prior to being charged with that offence he had been driving home from work one evening about 11.00 pm when he had a minor motor vehicle accident in Ashfield. After that minor collision he and the other driver found that the cars were driveable and they exchanged particulars, as it was not necessary to wait for the police. The plaintiff drove to a panel beater’s shop and left his car there, and then went home in some other fashion. When he went to work the following day, he reported the accident.
23 In the following week he began hearing rumours from members of his police football team that he was going to be charged because of some offence.
24 The damage to his vehicle was assessed as being $2,500. The car was insured for that sum. Some time immediately prior to the collision the plaintiff had installed a reconditioned engine into the vehicle at a cost of $900.
25 The plaintiff had made a claim on his insurer, which he thought to be one of either the NRMA or the GIO. From the plaintiff’s description it is clear that it was thought that he had made a false allegation as to being involved in a collision in order to obtain some financial benefit from the insurance company.
26 It is clear from the plaintiff’s evidence that the prosecution of this offence was taken up by the Police Service. In his evidence in chief the plaintiff referred to police Internal Affairs taking statements from other police officers, and in cross-examination he said that he was charged by two detectives from Burwood, who had obtained a statement from somebody else.
27 The plaintiff remained suspended from duty until the charge was heard by McPherson M at Burwood Local Court on 5 August 1993. The charge was peremptorily dismissed, the Magistrate not being satisfied of the existence of a prima facie case. It would appear from the material before me that there was no admissible evidence against the plaintiff. Subsequently the learned Magistrate ordered the prosecution to pay the plaintiff’s costs.
28 On or about 27 August 1993, the plaintiff was restored to full duties and his full salary backdated to 24 July 1992, the date when he was suspended from duty. Between July 1992 and August 1993, the plaintiff told me that he was paid his base salary but not his full financial entitlements.
29 The plaintiff told me that during the period of his suspension from duty he was offered no support or assistance by the NSW Police Force, either by his own workmates or colleagues personally or by the Police Force as an institution. When he returned to work he was not offered any encouragement, reinforcement or support. He told me that he was told by Sergeant John Phillips, “Now that you have beaten them, they will be out to get you forever”. By “them”, the plaintiff understood Sergeant Phillips to be referring to the Internal Affairs Branch of the NSW Police Force.
30 The plaintiff was not challenged about that information being conveyed to him and was not challenged that it was a misconception by him that Sergeant Phillips was referring to Internal Affairs.
31 Over 6 months later the plaintiff was called to another alleged crime scene. The crime scene was Christian Brothers High School, Lewisham, the plaintiff’s alma mater. There was an allegation that some young people had sought to break into a Coca-Cola vending machine on the school premises. Whether the intention of the offenders was to steal money or drinks the evidence does not disclose. The informant was the principal of the high school, Brother Hester. This event occurred on 4 April 1994.
32 As the plaintiff and his work colleague or “mate” were entering the school, they noticed a group of Aboriginal young people sitting on the school fence. The plaintiff and his mate interviewed Brother Hester and another teacher who may or may not have been a religious. It seems probable to me that the other teacher was a religious brother, as this event is alleged to have occurred on a Sunday. It is unlikely that a lay teacher would be present at the school on the Sunday.
33 Brother Hester advised the plaintiff and his mate that the offenders had departed. Brother Hester and the other brother walked with the plaintiff and his mate to the gate of the school and Brother Hester then saw the group of Aboriginal young people and identified them as the offenders.
34 The plaintiff and his mate approached the offenders to speak with them. As the plaintiff did that, one of the young people ran off, apparently to a nearby home, and returned with a group of approximately six Aboriginal adults. All told there were twelve Aboriginal people, about half of them young people and half of them adults.
35 The plaintiff and his mate noticed that two of the adults were seeking to move behind the two policemen, and the policemen, being the plaintiff and his mate, called for backup.
36 There was a verbal altercation between the group of Aborigines and the plaintiff and his partner. It is described thus by the plaintiff in his evidence in chief:
"Well, the father of one of the kids, he was shouting and screaming at us that we only picked on his kids because they were black. “There were other kids in the school, how come you don’t speak to them about breaking into the gym?” When I told him that we have the brother, the headmaster of the school, Brother Hester, who has identified your kids as the ones who he saw. He just started shouting, “It’s—”, you know, “You’re all the same,” and “you’re—” you know, “Your grandfather killed my people,” and started—they were actually banging cars as they were driving past on Dennison Road. They were sort of half on the footpath, half on the road and every time a car passed, a few of the cars, they just banged, people that weren’t involved, just banging the cars. And when I said to him, “Sir, look” you know, I said to him, “Look, my father and grandfather didn’t kill your people because, you know, my parents and grandparents were from Greece”. Then they started laughing: “Get back to your own country, you wog” and all this."
37 The efforts of the plaintiff and his mate to defuse this volatile situation were unsuccessful.
38 Two or three other police cars came to the scene, including the supervising Sergeant. One of those cars carried the supervising Sergeant from Petersham, Sergeant Ricketts. Sergeant Ricketts enquired of Brother Hester as to whether he wished charges to be preferred and he said that he did not. Sergeant Ricketts then made an executive decision to take no police action and to depart, thereby defusing the stand-off between the police and the group of Aborigines.
39 According to the plaintiff, whilst Sergeant Ricketts was present, the father of one of the Aboriginal youths said to the plaintiff, “What’s your name? What’s your number? We’re going to make a complaint against you.” The plaintiff then said to his enquirer, “Excuse me, sir, what is the complaint you’re going to make?” According to the plaintiff, the group of Aborigines laughed and one of them said, “Don’t worry, we’ll make something up.”
40 The plaintiff said that that was shouted out in a threatening manner.
41 The police departed. Sergeant Ricketts went in his car in one direction, the plaintiff and his mate went in their car in the opposite direction. How the other police cars proceeded, the evidence does not disclose.
42 However, later that evening a large group of Aboriginal people, it would appear the whole twelve involved in this incident, attended the Petersham Police Station and lodged a formal complaint with Sergeant Ricketts. The complaint is essentially that as the plaintiff and his mate drove away from the scene, the plaintiff held up his neck tie above his head in the manner as if he was being hung, making an indication that the Aboriginals might themselves be hung. This apparently was an activity that had been portrayed on television in recent times and had caused some public controversy, suggesting discrimination against persons of the Aboriginal race.
43 The plaintiff told me that he was very upset about Sergeant Ricketts’s taking this complaint because Sergeant Ricketts had been present when the Aborigines had threatened the plaintiff that they would make a complaint about some fictitious event. The plaintiff said that Sergeant Ricketts’s response was that it was alleged by the Aboriginals that this offence had occurred “around the corner”, meaning as the plaintiff drove away, when Sergeant Ricketts was absent.
44 Sergeant Ricketts gave evidence. Initially in cross-examination Sergeant Ricketts denied hearing the Aborigines making a threat against Mr Remoundos, but eventually agreed that he did not recall any such threat. Sergeant Ricketts is recorded as giving this evidence:
Q. And laughed when he said, “What for?” “We’ll make something up,” they laughed out loud?“Q. Again, I put it to you, sir, that you were present, Sergeant, when they yelled out, “We’ll make a complaint against you”?
A. I don’t recall that. I don’t recall.
A. I don’t recall that.”
45 After 4 April 1994, Sergeant Ricketts essentially had nothing further to do with this incident. The plaintiff, however, did. It appeared to me more likely that the plaintiff’s recollection was accurate and when it comes down to the probabilities, the probabilities in my view favour the view that Sergeant Ricketts had forgotten what actual conversations occurred on 4 April. The plaintiff had a greater reason to remember what was actually said.
46 Accordingly, I do accept that the plaintiff was threatened with a complaint being made against him for something which would be concocted by the complainants.
47 The plaintiff was upset with Sergeant Ricketts’s taking the complaint, but Sergeant Ricketts felt duty-bound to take the complaint and, as I understand it, was duty-bound to take the complaint. The days are long gone when police can merely dismiss a complaint out of hand. If a complaint is made formally, it must be dealt with formally. Furthermore, even if the plaintiff had been threatened with a concocted complaint, it does not mean that when a complaint was made, it was concocted.
48 Sergeant Ricketts recorded the complaint and passed it up the chain of command to, no doubt, his superior at the Petersham Police Station.
49 The police bureaucracy moved slowly. On 15 July 1994, 2½ months later, the plaintiff was the subject of a departmental interview. Some 11 months later he was charged departmentally with “misconduct”.
50 It would appear from the evidence before me that, although this was a departmental charge, the effective prosecutor was the Aboriginal Legal Service at Redfern. The departmental charge was heard and determined by Herron DCJ sitting as a Police Tribunal. The hearing lasted 2 days, 19 and 20 August 1996. The charge was dismissed by his Honour, who was critical of the preparation of the evidence by the Aboriginal Legal Service.
51 Between the event giving rise to the charge and the determination of the charge by his Honour Judge Herron was a period of almost 2½ years. At least from the time of being charged departmentally on 16 June 1995 and 20 August 1996 when the charge was dismissed by Judge Herron, the plaintiff had a cloud hovering over him, a cloud, as far as he was concerned, of course. If the charge was found proven, it could lead to the plaintiff’s being fined or reduced in rank or being dismissed.
52 It is clear from the evidence that the plaintiff did not feel himself supported by the Police Force as an institution during at least the period from being charged to the determination of the charge, although it appears to me that he probably had the support and sympathy of his work colleagues.
53 One can understand, and I do, that in institutions such as the Police Force, the members of the Police Force would rally to each other’s defence if the complainant was an “outsider”, but would do otherwise if the complainant was in fact the Police Force itself in the guise of Internal Affairs. One can accept that police might fear that if they supported a person who was charged by Internal Affairs, they, the supporters, might themselves be suspected by Internal Affairs.
54 The situation with the charge arising from the incident of 4 April 1994 appears to me to be somewhat different to the situation arising from the charging of the plaintiff on 24 July 1992, at least prior to being departmentally charged on 16 June 1995.
55 Throughout the period I have just dealt with, that is, between 4 April 1994 and 20 August 1996, the plaintiff was performing his work as a Constable of Police.
56 On 25 October 1996, the plaintiff was promoted to the rank of Senior Constable. However, his entitlement to the salary of that office was backdated to 10 October 1991, which is the date when he should have been appointed to that rank.
57 It would appear that because of the plaintiff’s being suspended following the charge of making a false statement to obtain a financial benefit on 24 July 1992, that his promotion to the rank of Senior Constable or its then equivalent was delayed and remained delayed until after the charge arising from the events of 4 April 1994 had been determined.
58 In other words, because of these two unfounded allegations against him, the plaintiff’s promotion to the rank of Senior Constable had been effectively delayed for nearly 5 years.
59 The plaintiff told me that once he was charged departmentally he felt “devastated” and he felt that he had been “let down by the system”. He told me that he had trouble sleeping at nights, that he was anxious and that he was depressed, and that he was “cranky at home”. He told me he visited his general practitioner, Dr Farag, and was prescribed Valium. There is no corroboration of that from Dr Farag, but I have been told, without objection, that the doctor has destroyed his notes made of the plaintiff prior to the year 2000.
60 One can understand and accept any policeman in the plaintiff’s position being concerned by the situation in which the plaintiff found himself as needing some form of medication to assist with anxiety, some medication to assist in inducing sleep.
61 It is clear that the plaintiff, after the charge was dismissed by his Honour Judge Herron, kept on performing normal work as a general duties police officer.
62 In mid-1998 the plaintiff applied to join the Licensing Police. Evidence concerning that was given by Mr Bryan George Coulthart, who gave oral evidence on 14 April 2005. Unfortunately, a transcript of that evidence is not currently available and I rely on my contemporaneous notes.
63 Mr Coulthart told me that after the Royal Commission into the NSW Police Force conducted by Mr Justice Wood, there was a “sweeping out” of the Licensing Police. Mr Coulthart applied to be the team leader of the Licensing Police in the Marrickville Command and was so appointed. The plaintiff was placed in his team. Mr Coulthart found the plaintiff to be a great asset to him because of his local knowledge.
64 Mr Coulthart told me that the plaintiff applied for two courses to further his qualifications as a licensing policeman, but that the plaintiff was passed over for those courses. He told me that he spoke to Inspector Frank Minelli in either 1998 or 1999 about the plaintiff’s not being advanced in the Licensing Police, but whatever was said by Mr Coulthart appears not to have assisted the plaintiff.
65 Mr Coulthart went on long service leave on 24 September 1999 and resigned from the Police Force in February 2000 in order to pursue a career in business. He apparently last worked with the plaintiff, then, in September 1999.
66 Mr Coulthart spoke highly of the plaintiff’s ability as a policeman and spoke highly of his character and performance as a policeman. Significantly, Mr Coulthart told me that members of the Licensing Police were subjected to random breath testing and also subjected to random drug testing.
67 On 17 February 1999 the plaintiff took a half-day off work for “nervous illness/anxiety”. However, he did not produce a certificate. The plaintiff is unable to tell me what was wrong with him at the time or why he may have suffered from symptoms of a nervous illness or anxiety.
68 In early February 2000, the plaintiff was called upon to perform what has been referred to as a brothel audit. The plaintiff needed to attend brothels and ascertain whether they were still functioning as brothels and perhaps to collect some other data. A member of the Police Force would not conduct a brothel audit unless accompanied by another policeman. One can wholly accept that that was an operational necessity.
69 On the occasion now in question, the plaintiff was accompanied by Sergeant Ricketts, the same Sergeant Ricketts involved in the incident of 4 April 1994. It ought be recorded at this time that Sergeant Ricketts and the plaintiff viewed each other as “mates”. Sergeant Ricketts and his wife have been the guests of the plaintiff and his wife at the plaintiff’s home. In other words, this was not just a work friendship, but a friendship that went somewhat further.
70 The plaintiff had a year previously conducted a brothel audit at the same premises as the one to which I shall now refer. This is the plaintiff’s description of what happened at this brothel audit:
“Yes, we knocked on the door. She opened the door and started going off as she did the previous year about, “What do you guys want again?” I explained to her, “We are here to do the annual audit. We still need to know if you are operating your premises as a brothel”, because 12 months prior we were working with Immigration and council and a few inspectors from the Marrickville Patrol, and we had a hard time with her as well, and I was a bit apprehensive about going there this time, but we had to go, and this time it was only me and Sergeant Ricketts.
Q. What did she say about her work?
A. She said, “You guys know I operate as a brothel”. Apparently that is the licensing laws, if you work out of your own private premises as a one person, you do not need council approval. However, if you have got at least two or three people working in there, you do. She kept, you know, saying she did, as she did the previous year, that she was one out, but we knew otherwise. So did the council, but all we wanted to know was, are you still operating as a brothel, and she was very argumentative.”
71 Further on in his evidence the plaintiff told me that this brothel owner or brothel keeper would not admit that she had any employees working for her on those premises, but it appears that there was information available to the police and Immigration and the local council that there was more than one person working from this house.
72 During the interview between this brothel owner and the plaintiff, Sergeant Ricketts said nothing, according to the plaintiff, and Sergeant Ricketts has confirmed that. It would appear that the conversation between the plaintiff and the brothel owner was heated from the lady’s point of view.
73 Sergeant Ricketts confirmed in his evidence that the plaintiff acted professionally during this interview, and that if he raised his voice in any way, it was only to be heard over the din of the lady’s voice. Sergeant Ricketts had no complaint about the plaintiff’s conduct at this brothel audit. I should have indicated that Sergeant Ricketts also had no complaint about how the plaintiff conducted himself at Christian Brothers, Lewisham on 4 April 1994.
74 The plaintiff told me that by the time he and Sergeant Ricketts had returned to the Marrickville Police Station, the brothel owner had phoned in a complaint which had been taken by Inspector Hodder. According to the plaintiff, a few days later, Inspector Hodder called the plaintiff and Sergeant Ricketts into his office and told them that he had conciliated the brothel owner’s complaint and that she was happy with what she had been told and that no further action would take place.
75 The plaintiff told me that after he and Sergeant Ricketts had left the scene of the brothel audit, Sergeant Ricketts said to the plaintiff words to the effect that the lady in question “can’t talk to us like that”, to which the plaintiff replied, “Well, why didn’t you say something and back me up?”
76 As I have said, Sergeant Ricketts confirmed that he said nothing during the conversation between the plaintiff and the brothel owner.
77 In cross-examination he could not remember saying to the plaintiff subsequently words to the effect of, “She can’t speak to us like that”. When I say that he could not remember that, that was his initial position in evidence as p. 286 of the transcript shows, but subsequently on p. 287 he denied that. However, it is clear to me that the denial was in fact a reconstruction. After having said that he could not recall saying any such thing, he gave this evidence on p. 287:
“Q. That when you’re in the car you made the comment, “She can’t talk to us like that”?
A. No. Look, I deny that. I really, I can’t recall it and I deny it anyway.”
78 To me, it appears likely that Sergeant Ricketts forgot or could not remember having said those words, but then decided that he would not have said them in any event. However, it appears to me likely from what subsequently occurred that the Sergeant did say something to that effect, which caused the plaintiff to reply to the Sergeant.
79 According to the Sergeant, the plaintiff sent to him an electronic message in which the plaintiff called the Sergeant a “pea heart”. As I understand it, what that means is a person who has a heart the size of a pea, a person, in other words, with little intestinal fortitude.
80 Some subsequent electronic transmissions throw a different complexion on the chronology of events as remembered by the plaintiff and Sergeant Ricketts. However, not much turns on that chronological inconsistency.
81 It appears that the plaintiff sent to Sergeant Ricketts an electronic message on 7 January 2000 at 4.23 pm. The message appears to have had a title of “p heart”. On 9 January 2000 at 6.47 am, Sergeant Ricketts sent a reply to the plaintiff in the following terms:
“Gary, I’m sorry you feel that way. It is now 2000, not 1970—get with the times. The corruption prevention officer concurs with the action taken. It really is a storm in a teacup, but potentially sackable. Paul.”
Paul is Sergeant Ricketts’s Christian name.
82 The next communication is a response from the plaintiff, which has two dates upon it, 10 January 2000 and 19 January 2000. I am not sure which is the relevant date. However, the response of the plaintiff to Sergeant Ricketts is this:
“It has nothing to do with not being 1970, just remember, when you are being your moralistic self, beware of all the other codes of conduct that you are breaching, you big girl!”
83 Sergeant Ricketts told me that it was not these electronic communications between him and the plaintiff that upset him as much as the plaintiff’s saying to him in the police station, although there was no-one present, that he, Sergeant Ricketts, was a “pea heart”.
84 Sergeant Ricketts took that as an insult and he made a complaint to his superior. Clearly to be called a “pea heart” or a “big girl” is an insult, although for the average Australian male it is rather small language to use. However, it has to be borne in mind that this is a communication from a Senior Constable to a Sergeant, a communication from a subordinate to a superior. One might accept a complaint being made about insubordination; one might expect the plaintiff to be called in by the station commander and being ticked off, perhaps even being paraded. However, the Sergeant’s complaint to his superior was taken to much greater length.
85 The Sergeant, in his evidence before me, was quite adamant that this was an insult. There is no suggestion of any criminal activity on the part of the plaintiff, but this was made by the officers, that is, the commissioned officers at the Marrickville Police Station, into an allegation of criminal behaviour, an allegation of threatening a witness.
86 The plaintiff told me that on 7 February 2000 he was interviewed by Inspector Richardson. This was a formal interview, an ERISP, an electronic record of interview with a suspected person. The plaintiff thought initially that this formal interview was to do with the complaint made by the brothel owner. It was not. The plaintiff was advised during the interview by Inspector Richardson that what was being investigated was an attempt by the plaintiff to threaten or intimidate a witness, namely, Sergeant Ricketts.
87 The plaintiff told me that he was “in a daze” at the end of the interview. Some 20 to 30 minutes later he received a telephone call to attend upon the Local Area Commander in his office. The Local Area Commander was Superintendent Dennis Smith. The plaintiff assumed that he was going to be spoken to by Superintendent Smith about the interview that had just been conducted or about some licensing matter. Superintendent Smith told the plaintiff that he was going to be transferred. The plaintiff asked what was the reason for that transfer and he was told that he had been in the patrol for too long. The plaintiff told me that the Inspector mentioned that the transfer would be transits, which was working out of a police station in Canterbury.
88 The plaintiff told me that this was how he felt after this interview:
“I was, I was feeling very, very low, if that is the word I can use, like I didn’t know, I felt shell-shocked thinking, well, you know, I thought he was going to talk to me about something else, and all of a sudden like, and I even said, you know, to the Inspector at the time after the interview, I said, “I am not feeling very well”, and I assumed when I spoke to the Commander, he was going to, that maybe someone told him I was not feeling any good, and maybe he was going to talk to me about how I was feeling or something. I was just devastated. I didn’t know what to think. I thought, what have I done, what do I do?”
89 The plaintiff went on to tell me that he was hot, he was flushed, he felt agitated, and that he was angry. He told me that his mind was “racing”. He went on to say, “I just felt let down again. I just had things running through my mind and sometimes I was scared of some of the stuff I was thinking about”. He went on to say that he felt that his heart was racing, his hands felt shaky and his legs felt light.
90 He then went to see Dr Farag, who confirms in his notes that the plaintiff was suffering from stress, a work problem, and that Dr Farag prescribed Valium and rest for a number of days.
91 In evidence is a letter from Superintendent Smith concerning the plaintiff’s claim for hurt on duty benefits. I am unable to find a date on the letter. However, it was received by the Police Workers Compensation Department on 30 June 2000. The substance of the letter, as far as I am concerned, is this:
“Senior Constable Remoundos was subject of a complaint lodged by an internal police complainant who alleged he was being harassed and intimidated by Senior Constable Remoundos.
These matter (sic) arose from an inspection at a brothel and the inappropriate comments made by Senior Constable Remoundos to the brothel owner in his capacity of Acting Sergeant, Licensing, at this command.
The comments made by Senior Constable Remoundos were reported to our senior management and the matter dealt with under employee management guidelines; however, Senior Constable Remoundos took it upon himself to forward a number of memos to the internal witness which were of a harassing and intimidating manner, which resulted in a category 2 police complaint being initiated and investigated by Inspector Richardson of this command.
The issues regarding Senior Constable Remoundos were sustained and managerial action taken by me to ensure that this matter would not flare up in the future.
During the course of the investigation, it was identified that Senior Constable Remoundos had served almost all his service at Petersham and Marrickville Police Stations. It was to his benefit that he be exposed to other facets of police duties and the opportunity existed for him to be seconded to Transit duties.
I stress, that this action was by no means used as a punitive measure. Senior Constable Remoundos had been identified as an officer who would be seconded to Endeavour Region Transit, prior to this [complaint] coming to notice.
This action was deemed necessary for a few reasons, and apart from the above, I also had an obligation to protect the internal witness who is also attached to this Command.”
92 Sergeant Ricketts made it clear in his evidence that he merely was “insulted”. As he himself said in his communication to the plaintiff, this was “a storm in a teacup”. This insult has been transmogrified by the senior officers of the Marrickville Local Area Command as being harassment and intimidation of the Sergeant, of an attempt to threaten or intimidate a witness, and as requiring protection to be given to Sergeant Ricketts. This, in my judgment, is gross overreaction.
93 Much to my surprise, the plaintiff did not see a transfer to transit duties as being a punitive transfer. I say much to my surprise because if I had been paid a brief fee for every police case I have heard in which a transfer to transit duties has been alleged to be a punitive measure, I could have bought a holiday house many years ago.
94 Dr Wendy Walker, who came to treat the plaintiff, said in her evidence that the plaintiff saw the transfer to transit duties as a punitive measure, but she made it clear in her oral evidence before me that the plaintiff’s complaints were also consistent with his complaint about the transfer being the timing of it rather than to where the transfer was. The plaintiff’s complaint to me, as I said, is not of going to transit duties, but as to the timing of the transfer.
95 Looking at matters objectively, I am left with no doubt that the transfer was intended to be a punitive transfer to visit upon the plaintiff some retribution for his insults to Sergeant Ricketts.
96 The plaintiff’s case is that following upon the events of 7 February 2000, he decompensated and has not been able to return to work since; that that led to his resignation, and that led to his subsequently being certified by PSAC as being unfit for the duties of his office as at the date of his resignation, and that that leads to his entitlement to a finding by this Court that the certified infirmity was caused by the plaintiff’s having been hurt on duty.
97 On one view of the medical evidence that is a very easy case to make out. However, the plaintiff also alleges that because of the decompensation which he suffered and the psychiatric illness that arose from it, he decided to treat himself, not with prescribed medication, or indeed with patent medicines, but with illegal substances, namely, marijuana, ecstasy, speed and cocaine, and not only to treat himself with those substances, but to traffic in them, as well as trafficking in “ice”, such trafficking being to merely support the drug habit which he developed.
98 The plaintiff’s drug trafficking came to the attention of the Police Force and the attention of the Police Integrity Commission, and the plaintiff was subsequently charged with eighteen criminal offences, twelve of drug trafficking and six of giving perjured evidence to the Police Integrity Commission.
99 Essentially the plaintiff pleaded guilty to those charges and was convicted and sentenced for them by his Honour Judge Dodd on 13 November 2003. Without going into the technicalities, the plaintiff was given a total sentence of 7 years imprisonment with a non-parole period of 4 years. The earliest date on which the plaintiff is eligible for release from gaol is 12 November 2007. The plaintiff has been incarcerated since shortly after sentencing at Cooma Correctional Centre. The plaintiff was brought up from gaol in order to give evidence before me.
100 The factual complications that arise in this case arise not merely from the fact that the plaintiff is a convicted perjurer or that the plaintiff is a convicted drug addict and drug dealer. They arise in particular from the symptoms of which the plaintiff has complained since 7 February 2000, of his actual activity and behaviour as disclosed in material obtained from the execution of listening device warrants, and from attempts to try to ascertain exactly when the plaintiff developed his drug habit, and generally as to whether the plaintiff can be accepted as a reliable witness in the evidence he gave before me, except that if one accepts that by pleading guilty to the offences to which he pleaded guilty, he has shown contrition and remorse and is now prepared to tell the truth, the whole truth and nothing but the truth.
101 As I have mentioned, the plaintiff saw Dr Farag on 7 February 2000. He saw him next on 10 February when the doctor noted that the plaintiff was still depressed and suffering from anxiety. Again, Valium was prescribed and rest from work. The plaintiff next saw Dr Farag on 16 February 2000, still complaining of anxiety and depression. On that occasion the plaintiff was referred by Dr Farag to Dr Wendy Louise Walker.
102 Dr Walker is not a medical practitioner but a consultant psychologist. She has an especial interest in policemen, having treated many over the years, and having examined many others over the years for the Commissioner of Police and the administrator of the Police Superannuation Fund.
103 Dr Walker first saw the plaintiff on 7 March 2000. Dr Walker’s first report as a treating practitioner to Dr Farag bears date 11 June 2000. It follows upon seven examinations of the plaintiff by Dr Walker. Under the heading “Clinical Observations”, Dr Walker commences that report in this way:
“Throughout all our sessions I have found Gary open, honest and trusting. Gary impresses as a creative and imaginative man who is quite sensitive. There are no indications of psychosis (no formal thought disorder, delusions or hallucinations) and I found no evidence of personality disorder. Gary does suffer Dysthymia as defined in DSM-IV and also quite severe anxiety (with some but not all of the features of Post-Traumatic Stress Disorder.)
Gary’s significant mental disorder dates from events beginning in July 1992 when, out of the blue, he was criminally charged with “make a false statement to obtain a financial benefit” on the advice of Assistant Commissioner Cole.”
104 Dr Walker then goes on to record what happened about the first charge. She then records a history of the events of 4 April 1994 and what stemmed therefrom, and the event of 7 February 2000.
105 The doctor then went on to talk of the plaintiff’s suffering from severe depression, of the plaintiff’s sleep being disrupted, of the plaintiff having completely lost his libido, of being self-critical, of loss of self-confidence, of irritability with his young children and of an inability to focus attention and a poor memory, and of ruminating over the traumata to which the plaintiff had been exposed in the course of his work.
106 The doctor then goes on to describe symptoms of what would have once been called cardiac neurosis.
107 It is clear that Dr Walker accepted what the plaintiff told her. She initially said that she found him to be “open, honest and trusting”. Subsequent events demolish any suggestion of the plaintiff’s being open and honest.
108 The plaintiff told me that he did tell Dr Walker of taking up smoking marijuana but did not disclose to her taking up other drugs until after he, essentially, had been “busted” in a raid by officers of the Police Integrity Commission on 30 October 2001. However, it is patently clear from Dr Walker’s oral evidence that the plaintiff made no disclosure to Dr Walker of any drug habit until either 5 November 2001 or 5 December 2001, more likely the latter. In other words, the plaintiff did not tell Dr Walker of the use of any illegal substance until after the plaintiff had been exposed by PIC.
However, the plaintiff did tell Dr Walker of his activities after that time.
109 In cross-examination, Dr Walker said this of the plaintiff and her reaction to him:
“Q. I take it you formed a very favourable impression of him?
A. No, not very favourable. I liked him. I felt—I described him, I believe, as in some ways immature and a twit, it seemed to me he lacked really mature adult judgment, so he didn’t have, like, I liked him. He was sad—he was suffering psychological disorder. I was sorry that he got into—wrecked his life and threatened his family with illegal activity, your Honour, but I did believe that in some ways he was naïve and that I have also assessed some people, whether I think we could agree were criminal mad, and he didn’t come across to me like that. That is all.”
110 Dr Walker made it clear that the plaintiff failed to improve with treatment. She appears to me to have accepted that that was unusual. She conceded that she wrote the report of 11 June 2000 to the plaintiff’s general practitioner as if it were a medico-legal report rather than her usual one-page missives to referring doctors. She said that was because she was concerned about the plaintiff’s failure to improve and she thought the plaintiff required the services not only of a psychologist but also of a psychiatrist. She was also concerned about the plaintiff’s medication.
111 On 4 April 2000—and I am prepared to infer at the prompting of Dr Walker— Dr Farag changed the plaintiff’s medication to Prozac. However, the plaintiff failed to improve. Essentially Dr Walker noted no improvement prior to the plaintiff’s being incarcerated. There are some brief reports in evidence from Dr Farag, and they suggest only minor and probably transient improvement over the period from 7 February 2000 to 13 November 2003.
112 Before moving on I should just raise one consideration that arises from Dr Walker’s first report, and this arises in a number of other reports. In the first section of her first report under the heading “Clinical Observations”, to which I have already referred, Dr Walker continued, after pointing out the plaintiff’s symptoms, thus:
“Of course, in determining the origins of work-related mental disorder with police officers, one must remember that the effects of traumatic events (especially when not “debriefed”) are commonly cumulative and that Gary, when questioned, had a long series of distressing experiences in his police work which still evade consciousness.”
113 It is clear that the plaintiff did not raise these “traumatic events” when giving a history to the doctor, but the doctor questioned them out of him, that is, it was a cross-examination process. Dr Walker in her report refers to these as “ordinary traumas in the course of his police work”. I refer to these as operational traumata, as distinct from administrative, bureaucratic or departmental traumata.
114 Dr Walker set out these operational traumata in her report of 11 June 2000. These traumata or similar traumata have been pleaded in the particulars of claim filed in these proceedings, and were the subject of evidence in chief. However, in my view they have absolutely nothing to do with the substantive case before me.
115 I have sought to make it clear that this was not a history volunteered by the plaintiff. The plaintiff only volunteered the history of administrative traumata, namely, the events of 1992, 1994 and 2000.
116 On 10 February 2000, the plaintiff completed a claim for hurt on duty benefits. It records the administrative traumata of 1992, 1994 and 2000, and the same three administrative traumata are set out in detail and in exactly the same terms by the plaintiff in his application for medical discharge of 10 July 2001.
117 The plaintiff was cross-examined about his claim for hurt on duty benefits and his application for medical discharge, and as to why he did not set out the operational traumata in those documents.
118 As far as the claim for hurt on duty benefits is concerned, the plaintiff agreed he did not mention the operational traumata. He went on to give this evidence:
“Q. And that was the opportunity to tell your story honestly and correctly, wasn’t it?
A. To the best of my ability, yeah.
Q. And you didn’t, did you?
A. (No answer).
Q. Did you?
A. I think I did.
Q. I put it to you that you didn’t.
A. I think I did.”
119 In other words, what the plaintiff was there saying is that, as far as he was concerned, on 10 February 2000, when he completed his claim for hurt on duty benefits, he thought he was setting out his story honestly and correctly.
120 The plaintiff was also cross-examined about a history he gave to Dr Moorthy, who saw the plaintiff for the Administrator of the Police Superannuation Fund on 25 February 2003. I tried to shorten that cross-examination by interrupting and saying this:
His Honour:
“Q. Look, it is the same question that was put to you about the claim form for the hurt on duty benefits that you made on 10 February 2000. That is, you said to Dr Moorthy that all your problems started with a minor motorcar accident in 1992.
A. Yes.”
121 It is clear that Dr Moorthy has no history of any of the operational traumata but only of the administrative traumata.
122 The whole thrust of the plaintiff’s complaints is not about being upset by thoughts of bodies, of gruesome scenes, but rather of his upset and unhappiness and disillusion with the Police Force and how it failed to support him. The plaintiff speaks on a number of occasions about being paranoid; he had a fear of persecution; a belief that he has been victimised by the New South Wales Police Force.
123 In my view, what happened to the plaintiff in 1992 and 1993, the first incident; what happened to him between 1994 and 1996, the second incident; and what happened on 7 February 2000, the third incident, are sufficient on an objective basis to induce in a man such as the plaintiff a belief that he was not being supported by the institution of the Police Force; a belief that he was being singled out and victimised for minor or non-existent problems.
124 I, accordingly, do not accept that any operational trauma has anything to do with the genesis or the progress of the plaintiff’s psychiatric condition.
125 On 13 June 2000, the plaintiff saw a Dr Phillip Sharp, one of the police medical officers. Again, the only matters recorded by Dr Sharp in his notes are the operational traumata to which I have referred. Dr Sharp records the provisional diagnosis of Dr Walker of dysthymia and severe anxiety and records the plaintiff’s medication was Prozac. I do not read Dr Sharp’s notes as indicating that he disagreed with the diagnosis. Dr Sharp said that he supported the plaintiff’s application for medical discharge, although it had not been made at that time. He thought the plaintiff was incapable of returning to work as at 13 June 2000, and that a rehabilitation program was not indicated.
126 Dr Sharp supported the plaintiff’s application for “special leave”, which I understand to be hurt on duty benefits. Dr Sharp thought the plaintiff should seek work outside the NSW Police Force.
127 On 31 August 2000, a rehabilitation officer for the defendant wrote to both the plaintiff’s general practitioner, Dr Farag, and to Dr Walker, seeking their views as to whether the plaintiff was fit for restricted duties. Dr Farag reported on 20 September 2000 that he did not think the plaintiff to be fit for alternative duties at that time and Dr Walker wrote in the same vein on 11 September 2000.
128 The next matter, noting the chronology of events before me, is that the plaintiff was charged that on 30 January 2001, at Sydney in this State, supplied a prohibited drug, namely cannabis, in an amount of 454 grams. That charge is set out in an indictment dated 30 November 2003. To that formal charge the plaintiff pleaded guilty.
129 I have earlier indicated that the plaintiff was in fact charged with eighteen offences, twelve of which were for trafficking in drugs and six of which were for perjury. As I understand it, the plaintiff pleaded guilty to all those charges and was committed for sentence in this Court on those charges. However, the reasons for sentence of Judge Dodd indicated that there were technical deficiencies in the certificate of committal emanating from the Downing Centre Local Court, and that therefore it was necessary for an indictment to be presented.
130 The indictment is summarised by Judge Dodd as this:
“Indictment to five charges that on three separate occasions, you supplied a prohibited drug for financial or material reward, three further counts of supplying a prohibited drug, and three counts of giving false evidence in a material particular before the Police Integrity Commission.”
131 However, further in his reasons for sentence, his Honour refers to the plaintiff’s asking his Honour to take into account seven further charges listed in a Form 1, consisting of four matters of supplying a prohibited drug and three further counts of giving false evidence to the Police Integrity Commission. As I understand it, the indictment and the Form 1 cover all the eighteen offences with which the plaintiff was initially charged in the Local Court.
132 I therefore must accept that, by 30 January 2001, the plaintiff was supplying cannabis in the amount of 454 grams. As I understand it, that is equivalent to an imperial pound. This takes me to the very vexed question of when did the plaintiff take up a drug habit?
133 The plaintiff’s evidence in chief is that he started using cannabis in December 2000 “towards the festive season”. I assume the plaintiff means, by the festive season, Christmas. That appears to indicate taking up cannabis towards the end of December 2000. I will merely rely on December 2000.
134 The plaintiff told me that he took cannabis twice a week at first in order to relax a bit more at night. He then said that that progressed to his using other substances, mainly ecstasy. The plaintiff told me that 2 to 3 months after starting to use cannabis, he started using ecstasy.
135 Ecstasy is the drug known as 3,4-methylenedioxymethylamphetamine, sometimes abbreviated to MDMA. The reading of the indictment containing the chemical name for ecstasy is an acid test of one’s ability to be a good Clerk of Arraigns.
136 The plaintiff, accordingly, admits to taking ecstasy by February or March of 2001.
137 The plaintiff was purchasing his cannabis from a hotel in the Dulwich Hill area and he nominated the Gladstone Hotel at Dulwich Hill. Subsequently the plaintiff used cocaine. He told me that he first used cocaine a month or two after first trying ecstasy. Accordingly, the plaintiff first used cocaine somewhere in the period between March and May of 2001.
138 The plaintiff told me of trying speed sparingly, and although he was accused of and confessed to supplying “ice”, which is crystal methylamphetamine, he did not use that drug himself. The plaintiff told me that he used marijuana and ecstasy but only occasionally cocaine and even less occasionally, speed, which is amphetamine, until the raid that was carried out by the Police Integrity Commission at his home on 30 October 2001.
139 Is that history of the plaintiff’s drug use correct? It is an enquiry I must make. There are a number of implausibilities in it which cause me grave concern. The plaintiff asked me to accept that in December 2000, towards Christmas, he commenced using cannabis twice a week at first, but by 30 January in the following year he is supplying a pound of marijuana in a criminal activity. This speaks of a period of 6 or 7, at most, 8 weeks between first using marijuana as an adult and then becoming a supplier of a large amount of the drug. It is remembered at this time that whilst the plaintiff was absent from work, he was still a policeman.
140 Other charges in the indictment to which the plaintiff pleaded guilty were that between 1 June 2001 and 30 June 2001, he supplied cocaine for financial or material reward. The next count in the indictment is that between 1 July 2001 and 30 July 2001, he supplied ecstasy for financial or material reward. The next count is that between 2 August 2001 and 31 August 2001, he supplied cocaine, speed and ecstasy for financial reward. The next count in the indictment is that between 1 September 2001 and 30 September 2001 he supplied cocaine and ecstasy for financial or material reward. The next count in the indictment is that between 1 October 2001 and 30 October 2001, he supplied cocaine and ecstasy for financial or material reward. The 30 October 2001 is, of course, the date of the PIC raid at the plaintiff’s house.
141 Two other relevant counts in the indictment are that sometime between 8 March 2001 and 27 March 2001, the plaintiff supplied a prohibited drug, namely, “ice”, 56 grams thereof. Another count in the indictment is that on 5 October 2001 the plaintiff supplied a prohibited drug, namely cannabis, in the amount of 454 grams, again, one imperial pound of the substance.
142 It can be seen, therefore, that after the count for the supply of cannabis on 30 January 2001, the next relevant date is the supply of “ice” somewhere between 8 and 27 March 2001. That, of course, is in the month which may represent the final month in which he took up ecstasy and may represent the first month in which the plaintiff used cocaine.
143 The plaintiff’s chronology of his drug use, as given in his evidence to me, is implausible because it turns him from a casual user of twice a week, to a supplier and dealer in the drug within a matter of 6, 7 or 8 weeks, perhaps even 5.
144 As I have mentioned earlier, the plaintiff first admitted drug use to Dr Walker after the raid by the PIC. He mentioned it to her on either 5 November or 5 December 2001. When I look at Dr Walker’s report of 5 February 2002, I note this history:
“Mr Remoundos has been unable to resolve his adjustment disorder because of the ongoing ambiguities in his position—being on leave from the Police Service, unfit to work but still attached to the Police Service. He was very distressed when he learnt that his HOD had not been granted, and when he received the news mid-2001, his mental condition, which had improved somewhat, deteriorated rapidly. His drinking increased and he experienced a profound sense of hopelessness and worthlessness. According to his account, he had used cannabis occasionally since early 2001, but after refusal of his HOD, he began sporadic use [of] ecstasy and very casually, cocaine. It is my firm opinion that his atypical drug use, done at the urging of friends, was a regrettable result of the very long waiting time since his application for his HOD.”
145 Of course, Dr Walker has a history of the use of cannabis “since early 2001”. The plaintiff told me it was December 2000. It would have been very hard for him to maintain “early 2001” when he pleaded guilty to supplying a pound of cannabis on 30 January 2001. Furthermore, Dr Walker records that, after the refusal of the plaintiff’s hurt on duty claim in mid-2001, the plaintiff began sporadic use of ecstasy and occasionally cocaine.
146 The plaintiff’s evidence to me was of taking ecstasy and cocaine in the first half of 2001. The plaintiff was paid his normal salary until 30 June 2001. His pay stopped on 1 July 2001. That was the relevant date the plaintiff ascertained that his hurt on duty application had been rejected.
147 The plaintiff asked Dr Walker to accept that he only began “sporadic use” of ecstasy and occasionally cocaine after the middle of 2001, but again, the plaintiff’s evidence to me is otherwise. Furthermore, prior to 30 June 2001, the plaintiff pleaded guilty to supplying “ice” and cocaine. Furthermore, as I read Dr Walker’s report of 5 February 2002, there is no admission by the plaintiff to her of not only using, but also of supplying or trafficking in illegal substances.
“Q. See, can I put this to you: at this point of time, and I stop here at the conversation, you have had a conversation with Provost about his family, you discuss your family wedding, who is going to be the godfather, issues about horse racing, getting a tip and organising events, correct?
A. I can see, yeah, yeah, I was agreeing all the time, but I can’t remember the conversation.”
257 The plaintiff went on to say he was just trying to be a “sociable friend” to his drug dealer. However, this is more than small talk. It was the pair interacting as friends. It was not the plaintiff’s agreeing all the time with Mr Provost, but he contributed to the conversation.
258 There were also arrangements made in that conversation for a future meeting at the Maroubra Seals Club.
259 There was then a reference to the plaintiff’s wife, and the plaintiff then gave evidence that he took his wife with him when he went to “the pub” when he met Provost, and that is when he introduced his wife to Provost. The plaintiff would go to pubs in the area in which he grew up, where it appears that the drug dealing occurred. It is recalled that the plaintiff and his family were living at Dural, but the “watering holes” that were frequented were the Salisbury Hotel at Stanmore, the Gladstone Hotel at Dulwich Hill. There had also in the past been visits to Petersham RSL and the Oxford Tavern, the latter two venues being preferred police venues, in particular the RSL, where the beer was cheaper than at the Oxford Tavern.
260 The plaintiff and his wife were accordingly travelling from Dural to the inner western suburbs, socialising, but also obtaining and dealing in drugs, or for the purpose of the husband’s obtaining and dealing in drugs.
261 There was also reference in an intercept on 3 May 2001 to someone called Johnny. The plaintiff was asked who was Johnny, and said, “I can’t remember”. He was then asked who was the Johnny in the car with him, and the plaintiff said he did not know. He then went on to say that there was “one Johnny I used to know in the pub”. The pub in question was the Gladstone Hotel at Dulwich Hill.
262 Eventually the plaintiff agreed that he knew two Johnny’s, a Johnny Dubber and a Johnny Herd. He said that he knew Johnny Dubber lived in the Dulwich Hill area, but he did not know where the other Johnny lived.
263 Subsequently the tapes were played, and it emerged that the Johnny involved in the conversation on 3 May 2001 was Johnny Dubber. It is clear to me that the plaintiff was seeking to hide what he had been doing and to minimise what he had been doing in his evidence before me.
264 Again, further material from the intercept was put, and again there was an allegation by the plaintiff of an inability to remember the conversation or what was being discussed.
265 There was a further intercept on 5 May 2000. Again involved in that intercept was an unidentified Johnny. The plaintiff was asked if he could recall who Johnny was, and he said, “I can’t recall Johnny. It could have been one of the Johnny’s at the pub, an unidentified male. I don’t know. It could have been another Johnny as well. I can’t remember.” Eventually when the tape was played, the plaintiff admitted that it was Johnny Dubber. Much of the conversation recorded on 5 May 2001, the plaintiff said he could not remember.
266 The fifth intercept was on 16 May 2001—2 days after the plaintiff saw Dr Walker for one session of treatment. That conversation was recorded when the plaintiff was near the Sydenham Railway Station. He agreed that it was a long way from his home in Dural. The conversation occurred at 5.53 pm on a Wednesday.
267 The plaintiff agreed that he was obviously going there by pre-arrangement to meet Mr Provost. It is in that conversation that the plaintiff refers to being at the hospital with Helen, Mr Provost’s wife. The plaintiff then said that Helen was in hospital because of a liver condition.
268 There was a conversation involving Mr Provost’s inquiry about the progress of the plaintiff’s application for a “pension”, meaning a hurt on duty pension, the very question with which I am now dealing. This was the exchange recorded:
“RP: No, no word on your pension or anything?
GR: Sorry?
RP: Well, they’ve gotta do something in the end.RP: No word on your pension?
GR: No. I went to see my psychologist the other day, on Monday. She said, “Yeah, it’s usually ...” She said with all her clients it’s usually up to about a year and a half to two years, you know. Fuck, I wish they’d fuckin’ just do something with me.
GR: Well, they’ve gotta do something. You just, you can’t just fuckin ... it’s nearly 15 months they’ve been paying me, the fuckin’ idiots. You know what I mean?
RP: Well, they’ve gotta finalise it.
GR: Well, that’s it, mate.
RP: They’ve got to. They’ve got no choice, it just, it turns up on the book as a bad thing, you know?
GR: They fire the fuckin’ first serve and I return serve. I say, “Well, that’s how you want it”. That’s how I see it.
RP: Yeah.
GR: “Now it’s your turn to return serve.” Return and they still haven’t returned serve. Just [unintelligible] me claim.
RP: Yeah. They just, [unintelligible].
GR: Be prepared to throw the towel in straight away if they say no. So I’ll get ‘em in Court. They can’t win.
RP: Yeah, that’s right, they can’t win, no. Plus they can’t tell you how you feel [unintelligible].
GR: That’s it.”
269 The plaintiff and Mr Provost then go on to talk about some recent case involving a young policeman who had shot somebody and had been forced to return to work 6 months later.
270 That is one of the many matters which has caused me grave concern. However, it is Mr Provost who makes the point that “they can’t tell how you feel”, rather than the plaintiff. Such is usually the case in any psychiatric condition. It is often the case in orthopaedic conditions as well.
271 The reference to “they can’t win” by the plaintiff is perhaps his perception of the situation at that time. His perception at that time would not have involved his realising that he was under covert surveillance, realising that it was known to the Police Force, and eventually to the PIC, that he was involved in not only using but also in dealing in illicit substances.
272 Perhaps, rather than speaking to the likely outcome of the court case, Mr Remoundos was having regard to a system which is certainly loaded in favour of injured policemen, and sometimes uninjured ones whom the Court must accept as being injured.
273 When this was put to the plaintiff there were a number of confusing answers. It was put to the plaintiff what he said about he had been told by Dr Walker and how the plaintiff had expressed the desire that he wanted the Police Force to do something. The question went on:
“What did you want them to do? You were presenting certificates saying you weren’t well?”
274 The plaintiff gave this answer:
“I had enough. I just want to cut ties with them and they were, you know, like I was on sick report, okay, but at the end of the day I was still tied to the Police Service and I wish I wasn’t any more.”
275 It was then put to the plaintiff, that is, pointed out, that he had been paid full salary for some 15 months. He was then asked who were the “fucking idiots” and the plaintiff then said that he could not remember the conversation. That was not his explanation of the earlier part of the conversation.
276 He was then cross-examined about what is obviously a tennis analogy of throwing service of a ball over a net and its return, an analogy very common in litigation, and protested that he did not remember what he meant by what he is recorded to have said.
277 A further part of the conversation in which the plaintiff said that “they can’t win”, clearly referring to the Police Force’s ability to win a case of this nature, the plaintiff said that he did not remember saying that and he did not know what he meant by that. It is patently clear what he meant by that. The plaintiff was straining my credulity.
278 It then transpired from further things set out in that intercept that in the year 2001 the plaintiff was working as a trainer for the under-21 years Leichhardt Wanderers Rugby League Football team. That required him to attend training and no doubt also matches. The training was obviously somewhere in the inner city, and after training there was an opportunity of going to the clubhouse and having some liquid refreshments.
279 Of course, the plaintiff’s involvement in training this team, indicating that he was out socialising and exercising, was not disclosed to any medical practitioner, and to an extent is inconsistent with what the plaintiff is saying about himself. However, I am bound by the certificate of PSAC, and I have to accept the plaintiff has the certified infirmity. It is not open for me to reject the plaintiff’s complaints or to reject that he was not incapable of discharging the duties of his office.
280 The sixth intercept was on 6 June 2001. That was the day on which the plaintiff had a long consultation with Dr Wendy Walker. One will recall that Dr Walker’s report indicates the plaintiff told her that he had no libido and no interest in sexual activity. Part of the discussion in the intercept of 6 June 2001 is of the plaintiff’s providing cocaine to a woman in order to induce her to have sexual intercourse with him.
281 The plaintiff was very diffident about answering questions about that line of inquiry and sought to maintain before me that he had not involved himself in sexual activity with anyone other than his wife. What the plaintiff said himself in some of these intercepted conversations speaks strongly to the contrary.
282 Eventually when this matter was being put to the plaintiff, the plaintiff made a concession, no doubt to try to throw the cross-examiner off the trail, that he had lied to Dr Walker about the extent of his drug use. However, even that admission was qualified. The answer given was, “Yes, in a way.”
283 There was further conversation about the plaintiff’s engaging in sexual activity with women other than his wife, and the plaintiff’s reply to that is that he was “big noting himself” and lying to his friends. That was not the only occasion on which the plaintiff proffered those excuses for what he was saying. On many occasions he said he was merely “big noting himself” and that he was just being “one of the boys”, the latter being my interpretation of what the plaintiff was driving at.
284 There is, on one occasion—it now being 5.10 pm, I do not wish to prolong this much further—where the plaintiff spoke of engaging in corrupt activity. When it was put to him that that was the case, the plaintiff denied it, but then he had to concede that even if he was not telling the truth, he was painting the Police Force in a bad light.
285 Of course, a police officer ought not bring the Police Service into disrepute, but reflection must be engaged in, on a matter such as this. The plaintiff had been, between 1986 and 2000, an active member of the New South Wales Police Force. He was now dealing with drug users and drug dealers. He had to establish some credibility with these criminals. If it were known that he was a policeman, he would be shunned, indeed, ostracised by them; they would have nothing to do with him. The only way he could get on with these people was by presenting himself as a corrupt policeman. I have no doubt that he did, and why he did is understandable in the circumstances, although still reprehensible.
286 For example, on one occasion, in one intercept, the plaintiff spoke of taking drugs on a trip to Queensland, on which trip were his wife and his two children. The conversation appeared to me to revolve around going through metal detectors when the wrapping of, say, marijuana might be disclosed by metal detectors. However, it is clear when one knows the full facts that what the plaintiff was disclosing was a fantasy. He spoke of the event as being about 15 years previously when he was there with his wife and two children. His children had not been born 15 years previously. The eldest of them would appear to me to be about 12 at the current time.
287 The plaintiff also gives an itinerary from Brisbane to Cairns via Charters Towers, which is implausible. In cross-examination the plaintiff said that he had been to Queensland on police rugby league football trips, but denied taking marijuana with him on such football trips. Much was made of that by Mr Kostopoulos, but looking at the evidence in the intercept itself, one can see the absurdity of the tale being related by the plaintiff to Mr Provost at the time. Again, that does seem to me to indicate the plaintiff’s “big noting himself”, trying to portray himself as a corrupt policeman, no doubt to maintain his status in this criminal milieu.
288 However, as I have earlier stated, the way the plaintiff dealt with the material in the police intercepts causes me grave concern about his reliability and veracity, his honesty. I have no doubt that the plaintiff sought to minimise his criminal activity before me, to try to paint himself as a reformed angel and to try to establish that his criminal activity was not as extensive as it actually was.
289 That, together with his confession to being a perjurer, has led me not to rely, unless corroborated, on what the plaintiff himself has to say.
290 However, for other reasons I have advanced, the plaintiff is entitled to succeed in this appeal.
291 I commenced these reasons for judgment by pointing out that this was perhaps the most difficult decision I have had to make in an appeal under the Police Regulation (Superannuation) Act 1906 in the 12 years that I have been on the Bench. The ultimate finding which I reach is not one that pleases me, because it appears to me morally repulsive to make a finding which entitles the plaintiff to a police pension. However, I must apply the law and I must decide the case on the evidence presented, and not on the basis of affection or ill will. As the old Latin saying is, fiat justitia dum ruant caeli — let justice be done though the heavens fall. Justice must be done according to law, and not according to one’s own moral preconceptions.
292 I have enquired of the solicitor for the defendant whether any further reasons for judgement are required. I am told that none is so required.
293 For those reasons, I set aside the decision of the Commissioner of Police made on 13 May 2003 and I determine that the suffering by the plaintiff of the infirmity of “chronic dysthymic disorder with anxiety features”, as specified in the certificate of the Police Superannuation Advisory Committee dated 24 April 2003, was caused by the plaintiff’s having been hurt on duty on 7 February 2000.
294 I order the defendant to pay the plaintiff’s costs.
295 I must add this. I have heard and determined many cases where there was little prospect of the defendant’s succeeding in the appeal. There are a number of cases in which I have criticised the defendant for contesting uncontestable applications. The defendant’s behaviour in the current matter was wholly understandable, perfectly justified and in the interests of not only the Police Force, but also of the State and of the whole community. Cases of this nature ought be wholly litigated and fully contested. Were it open to me, I would have ordered the plaintiff himself to pay his own costs and the defendant’s costs of this appeal, because the reason that it is contested was because of the plaintiff’s own misconduct. However, the law does not allow me to make that order.
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