McGilchrist v Commissioner of Police

[2010] NSWDC 324

CITATION:	McGilchrist v Commissioner of Police [2010] NSWDC 324
HEARING DATE(S):	31 May to 4 June, 19 to 23 July and 3 to 5 August 2010
EX TEMPORE JUDGMENT DATE:	6 August 2010
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ
DECISION:	1) I confirm the decision of the Commissioner of Police made on 6 January 2009
CATCHWORDS:	POLICE - hurt on duty - psychological injury - whether certified infirmity wholly or predominantly caused by reasonable action taken on behalf of defendant with respect to discipline - Workers Compensation Act 1987 (NSW) s 11A
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 s 21 Workers Compensation Act 1987 s 11A
CASES CITED:	Commissioner of Police v Minehan (2003) 1 DDCR 57 Department of Education and Training v Sinclair (2005) 4 DDCR 206 Guff and Others v The Commissioner of Police (2007) 5 DDCR 132 Irwin v The Director General of School Education (NSWCC, 18 Jun 1998, unreported) Ivanisevic v Laudet Pty Limited (NSWCC, 24 Nov 1998)
PARTIES:	Stephen Robert McGilchrist (Plaintiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ330/09
COUNSEL:	Mr P. O’Rourke (Plaintiff) Mr J. Sharpe (Defendant)
SOLICITORS:	Oates & Smith Solicitors (Plaintiff) Tresscox Lawyers (Defendant)

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1 The plaintiff, Stephen Robert McGilchrist, is a former inspector of police. He was attested as a probationary constable of police on 25 November 1983, and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906.

2 The plaintiff last physically worked as an officer of police immediately prior to going on sick report on 15 May 2007. The evidence does not disclose what his actual last day of work was. It may be that, for example, 14 May 2007 was a rostered day off or a non-working day. On 27 November 2008 the Police Superannuation Advisory Committee established under the Act determined that the plaintiff was incapable of discharging the duties of his office on account of the infirmity of “chronic adjustment disorder with depression, with features of post-traumatic stress”. As a result of that certification, on that same day the plaintiff was discharged from the New South Wales Police.

3 As a result of the certification by the Police Superannuation Advisory Committee, and as a consequence of the plaintiff’s medical discharge, having completed 25 years of service in the Police Force, the plaintiff became entitled to a superannuation allowance of 60.625% of the salary of his office.

4 On 6 January 2009 the defendant, the Commissioner of Police, determined that the suffering by the plaintiff of the certified infirmity was not caused by his having been hurt on duty. Aggrieved by that decision of the Commissioner of Police, the plaintiff makes an application to the Court pursuant to s 21 of the Police Regulation (Superannuation) Act 1906. The authorities make it clear that the application, which was once upon a time called an “appeal”, is a hearing de novo on the merits of the plaintiff’s claim that his suffering of the certified infirmity was caused by his having been hurt on duty.

5 Should it be determined that the plaintiff’s certified infirmity was caused by his having been hurt on duty, he would become entitled to a superannuation allowance of 72.75% of the salary of his office, and would, no doubt, make an application under s 10(1A) for an increase in that superannuation allowance, that is an increase beyond 72.75% but not exceeding 85% of the salary of his office. For reasons which will become clear, the plaintiff is unable to allege that he is totally incapacitated for all work outside the Police Force.

6 The plaintiff was born on 16 October 1959. He is currently 50 years of age. After obtaining the Higher School Certificate he attended Macquarie University, where he obtained the degree of Bachelor of Science, majoring in Geology. Whilst he was undertaking his tertiary study, the plaintiff worked as a store manager for McDonald’s. After obtaining his degree, the plaintiff worked for a brief time with the Australian Coal Industry Research Limited, undertaking geological studies of coal seams. He then applied to join the New South Wales Police. He became a trainee on 5 September 1983 and, as I have already mentioned, was attested as a probationary constable of police on 25 November 1983.

7 His first appointment was to Balmain Police Station, where he worked in general duties. He also worked at Leichhardt in general duties. On 20 April 1986 he became an accident investigator for traffic accidents. The plaintiff worked as an accident investigator between 20 April 1986 and 25 June 1989, a period of over three years. During that period the plaintiff obviously attended at the scene of many traumatic events, some of which, no doubt, were physically and psychologically distressing to attend. However, many policemen are involved in traumatic events and are exposed to distressing and harrowing scenes.

8 The plaintiff gave evidence of three particularly distressing events. The first was one that occurred at Woodville Road. A tabletop truck made a right hand turn and struck a motorcycle which was travelling in the opposite direction, as a result of which collision the tray of the truck beheaded the motorcyclist. The plaintiff saw the deceased’s head laying by the roadside.

9 Another event to which the plaintiff deposed occurred at Galston. A party of local residents had hired a minibus in order to attend at a restaurant in order to avoid drinking and driving. However, an intoxicated motorist collided with the minibus when the intoxicated motorist drove onto the incorrect side of the carriageway and hit the minibus, which was pushed over a railing, causing it to roll about 10 m down the side of a hill. A number of people were thrown out of the back of the minibus. One was killed and a number of others were seriously injured. When the plaintiff arrived, the injured passengers had been removed from the scene, presumably by ambulance, but the body of the deceased was still being conveyed up to the roadway when he arrived. His exposure to that incident does not appear to have been particularly great, in the sense of seeing blood and gore, but it clearly affected the plaintiff’s psyche, because he thought of the injustice of the fact that a group of people who sought to avoid drinking and driving had been killed or injured by a drunken driver.

10 The third incident to which the plaintiff deposed was an accident on the Sydney Harbour Bridge in which persons speeding at 200 km/h caused a serious accident. The plaintiff referred to that accident as an “horrendous scene”. He spent a couple of hours at the scene investigating what had occurred and setting up some photogrammetry. There were physical marks left on the concrete wall on the western side of the North Sydney end of the Harbour Bridge which the plaintiff could observe for a considerable time after the accident had occurred.

11 However, as the result of such exposures, the plaintiff sought to take no time off work, sought no medical attention, did not seek any counselling, and there was no evidence of any contemporaneous complaint of any adverse psychiatric reaction to those events.

12 The plaintiff told me that he did not feel that he was entirely suited to accident investigation work and that caused him to apply for a position at the New South Wales Police Armoury. He took up that position on 25 June 1989.

13 When the plaintiff joined the armoury, there were four sworn police officers and five civilian employees. The commander was a senior sergeant; beneath him was a sergeant; and then there were two constables. The plaintiff was working essentially, he described, as a storeman, but the plaintiff agreed that the essence of his job was security more than storing: he was to control the stock for security reasons.

14 The plaintiff told me that the Police Armoury was responsible for the repair and maintenance of all Police Service firearms and handcuffs and batons. It was also responsible for the production of ammunition, both for training and operations and it had the ability to do small engineering tasks for the Police Service.

15 In addition to the firearms carried by ordinary police, the armoury was also responsible for sniper and marksmen’s’ rifles used by special operations squads and also shotguns, sub-machine guns and gas grenade launchers.

16 The armoury was, in fact, a machine shop. The civilian employees were all fitter machinists and each of the other sworn members of the Police Service working there, including the senior sergeant, were trade qualified. The plaintiff himself started to study to qualify as a fitter machinist and did so over the first four years of this employment. After that he obtained a powder man’s ticket which enabled him to become a part-time bomb technician. That would cause the plaintiff to attend operations at times, many of which were hoaxes but the plaintiff was involved, however, with destruction of any explosives that were actually found. Whilst he could not say that he attended a “lot of jobs”, he attended a number of jobs as a part-time bomb technician.

17 Other than attending work as a bomb technician, the plaintiff worked with the armoury from Monday to Friday between the hours of 7 am and 3 pm. No overtime was worked at the armoury. He wore plain clothes or unmarked overalls. Essentially, the plaintiff could be seen as more of a tradesman working in a factory than an actual serving police constable.

18 The plaintiff clearly liked his work in the armoury. He attended a number of other courses than the two that I have described, often at his own expense, and he in fact at his own expense attended courses in the United States of America to keep his firearms skills up to date.

19 On 25 November 1992 the plaintiff advanced to the rank of senior constable. On 13 September 1996 he was advanced the rank of senior sergeant of police and that was because he was then appointed the commander of the armoury. By that stage the personnel at the armoury had changed. The plaintiff was the only sworn police officer and the other six workers were all civilian employees.

20 One of the highlights of the plaintiff’s career at the Police Armoury was the introduction of Glock pistols. The plaintiff, I assume, issued to himself pistol numbered P00002 which can be conveniently referred to as “P2”. Pistol P00001 was kept by the manufacturer in Europe. The pistol P2 was clearly the first pistol available for distribution to serving members of the New South Wales Police and it appeared that the plaintiff’s possession of P2 was of significance to himself and to others.

21 As the Commander of the New South Wales Armoury the plaintiff was under the umbrella of the State Protection Group, or SPG. The SPG includes the Tactical Response Group which can be referred to as either the SWOS and/or Riot Squad; the Police Negotiators; the armoury; and the Rescue and Bomb Disposal Unit. There were clearly SPG meetings called by the Commander of the SPG, at which the heads of the five elements which I have described attended.

22 In 2003 the Commander of the SPG was Chief Superintendent Gilham. At a command meeting of the SPG Mr Gilham advised that there was an opportunity to relieve as the Acting Commander of the Rescue and Bomb Disposal Unit (RBDU). Mr Gilham asked if anyone was interested in relieving as the Acting Commander of the RBDU, he or she should inform Mr Gilham. The plaintiff thought about it for a short number of days and went to see Mr Gilham and told him that he would be interested in having a go at relieving as the Commander of the RBDU. That led to the plaintiff’s taking up the position as Acting Commander of the RBDU on 13 October 2003. That led to the plaintiff’s being appointed an Acting Inspector. Because he could no longer be the actual head of the armoury, Sergeant Graham Ross was appointed as the Acting Commander of the armoury.

23 Sergeant Ross was new to the armoury and the plaintiff initially was working both at the armoury and at the RBDU, almost each day in order to assist Sergeant Ross at the armoury. The plaintiff told me that there were a number of technical issues for which he had to give assistance to Sergeant Ross. The plaintiff told me that he was “backwards and forwards between the armoury and the RBDU”.

24 The structure of the RBDU needs to be considered and juxtaposed with the structure of the armoury. There were, at the RBDU, 32 sworn police officers. There was the plaintiff himself as the Acting Inspector and Commander, two senior sergeants, five sergeants and 24 senior constables and constables. The plaintiff described in detail some of the duties at the RBDU which I need not recite because their nature can be discerned merely by thinking about the name of the unit.

25 The RBDU was divided into four teams, each headed by a sergeant and two sergeants reported to one senior sergeant. The plaintiff was to stay at the RBDU as Acting Commander until 29 September 2004 when he was given the substantive role as Commander of the RBDU and was appointed to the rank of Inspector of Police. The plaintiff then continued at the RBDU until he took long service leave shortly after 28 July 2006. The long service leave was for two months.

26 Prior to returning to duty after his long service leave, the plaintiff was telephoned by Chief Superintendent Gilham who advised the plaintiff that on his return to duty he was to attend at Mr Gilham’s office and act as his staff officer until Mr Gilham could return from wherever it was that he was absent and when he returned he would have a further discussion with the plaintiff about his role in the SPG.

27 Throughout his time at the armoury and throughout his time at the RBDU the plaintiff did not report any injury, did not report any illness of any significance and did not need to take any time off work for what was thought to be a compensable condition, nor did he seek any medical treatment relevant to any psychiatric illness. In evidence before me are records from the plaintiff’s general practitioner’s practice, the Dural Family Practice and the records of that practice appear to date back to 2 January 1995.

28 As I have earlier mentioned, the plaintiff had issued to him, inter alia, a Glock pistol P2. The plaintiff managed to mislay P2. Police Commands have what is known as “Command Management Frameworks” or CMF. They appear to be written protocols for the management of all aspects of the Command.

29 On 18 and 19 October 2004 the plaintiff and Sergeant Woodward decided to do what is called a “dip sample” an audit of the CMF at the RBDU. On 19 October 2004 the plaintiff and Sergeant Woodward conducted a dip sample audit of the firearms that were held at the RBDU or issued to members of the RBDU.

30 In that dip sample the plaintiff told me that P2 was not located in the safe that held the guns for members of the RBDU. The safe is also described as a large pistol safe which was housed in a converted storeroom. The plaintiff gave me this evidence in-chief:

“Q. What did you do upon discovering that it wasn’t where you understood it should be?
A. I panicked a bit as it sort of jogged me, that’s not - when you expect to see something and it’s not there, it’s a bit of a shock. I checked there, I rang the armoury to see if my firearm was down there and was told that it wasn’t down there.

Q. Why had you rung the armoury?
A. Well - well, there’s only - there’s only three locations my firearm was ever at and it was, you know, at home - which was extremely rare - at the armoury, or at the, you know, my last memory was being at the Bomb and Rescue Unit.
...
Q. What did you do then?
A. I then put a report in that my firearm was gone from where I last believed it had been located.”

31 The plaintiff went on in his evidence-in-chief to tell me that he then checked the checking list at the RBDU to see when he had actually put his gun into the RBDU, and his name did not appear on the checking list. He told me that he had a recollection of putting his gun into the RBDU pistol safe with the assistance of Sergeant Geddes, who at the time was in charge of the firearms portfolio. The plaintiff then checked the rosters to find out when he had worked with Sergeant Geddes to ascertain when it was that he placed his pistol in the pistol safe at the RBDU.

32 After making his enquiries on 19 October 2004, the plaintiff wrote a report to his superior, Chief Superintendent Gilham. The substance of the report is this:

On Friday 4 June 2004 following my nomination, I moved my appointments from the Armoury to my new posting at [RBDU], Zetland. The Glock pistol number P00002 was placed on the number two peg as it would not fit on the number one peg. The pistol was secured by a padlock and disk. Sergeant Anthony Geddes was present as supervisor charged with the Arms and Appointment responsibility under the [CMF], the pistol details were entered onto the listing affixed to the gun cabinet.

On Tuesday 19 October 2004, during routine dip sampling of the CMF, it was discovered that Inspector McGilchrist’s Glock pistol, serial number P00002 and the securing lock had been removed from the gun cabinet. The pistol may have been missing for some time as it had not been added to the weekly checking list. The incident has COPS Event number E22458967.

Forwarded for investigation.”

33 On the same day the plaintiff sent a facsimile transmission to Assistant Commissioner Hazzard, who was the head of the counter terrorist command. The substance of the facsimile transmission is headed “Briefing Note”. In addition to reciting the material which I have already recited, the briefing note points out that “for some unknown reason” the details of the plaintiff’s appointments were not added to the weekly checking list. It also pointed out that on Sunday 22 August 2004, Senior Constable Robert Golding conducted an inspection using the appointment list affixed to the pistol cabinet against the weekly checking list and noted the plaintiff’s pistol was not sighted. Senior Constable Golding had in fact drawn this irregularity to his superior, Senior Sergeant Smith, but Senior Sergeant Smith had in fact done nothing about the discrepancy noted by Senior Constable Golding. In another paragraph of the briefing note, the plaintiff referred to “the theft” of his firearm and pointed out that during a search of the premises and the gun room “the metal retaining disk” and small shards of brass were located at the bottom of the pistol safe, and that Crime Scene and Fingerprints attended and examined the safe, removing those items for further examination.

34 The COPS entry to which the plaintiff referred in his report to Chief Superintendent Gilham also referred to the incident in question as “actual stealing”.

35 There must be some doubt about the dating of the briefing note. As I have said, the covering facsimile transmission sheet bears date 19 October 2004 but the substance of the document refers to the attendance and examination of the pistol safe by Crime Scene and Fingerprints. However, they were not ordered until 3 pm on 20 October 2004, the following day, at the suggestion of Sergeant William Morris of the RBDU.

36 The police had to investigate the disappearance of the plaintiff’s pistol. The investigator appointed was Acting Inspector Paul Huxtable of the Redfern LAC. I assume that Zetland falls within the area of the city of Sydney covered by the Redfern LAC, hence its involvement. For the purposes of that investigation, the plaintiff prepared a statement which bears date 3 November 2004. The statement is unsigned by the plaintiff but was tendered in the plaintiff’s case. It is Exhibit F. In that statement the plaintiff refers to his details not being added to the weekly checking list of appointments “for some unknown reason”. In the paragraph numbered 7 the plaintiff referred to the “theft” of his firearm.

37 The plaintiff was interviewed by Sergeant Baxter of the Redfern LAC on 12 November 2004. In that interview he said that after being nominated for the position of Commander of the RBDU, that is, nominated for the permanent appointment to that position, he went to the armoury and cleared out his personal locker of his possessions and appointments and brought his possessions and appointments to the RBDU. He then told Sergeant Baxter about securing his pistol in the gun safe at the RBDU in the way already described. In the interview the plaintiff told Sergeant Baxter that until the recent buy-back of firearms by the government he had been a pistol shooter for 22 years: hence he had an approved gun safe at his home, but in essence, his pistol was always stored in the police armoury prior to his moving across to the RBDU.

38 The plaintiff was asked if he could recall the approximate date when he picked up his pistol for the last time from the armoury. He said that he would have picked it up a couple of days before Exercise Explorer was conducted at Holsworthy. That was a large, multidisciplinary exercise and he had worn his appointments for that exercise, which lasted a couple of days. Exercise Explorer in fact occurred between Monday 31 May 2004 and Wednesday 2 June 2004.

39 The plaintiff was asked about his P359, which is an appointments card. He was shown a photocopy of it which had been obtained from the armoury. The date on which it had been last sighted was 29 December 2003 and it had been sighted at the armoury by Sergeant Ross. According to the records of the armoury, an inspection in March 2004 showed that the plaintiff’s appointments had been moved to the RBDU in that month and therefore were not at the armoury. The plaintiff was unable to account for that “discrepancy” because, as far as the plaintiff was concerned, in March 2004 his appointments were at the armoury.

40 When asked why his appointments were still at the armoury then, the plaintiff said that he had not bothered taking them to the RBDU because he had not secured a job at RBDU and he still had full access to the armoury.

41 The plaintiff agreed that his name did not appear on the weekly checking list at the RBDU and the plaintiff said that that had not been drawn to his attention, and no-one had informed him of it. The plaintiff also had drawn to his attention the fact that Senior Constable Golding had noted that the plaintiff’s pistol was not in the gun cabinet on 22 August and the plaintiff said that he was absolutely astounded that no action was taken at that time.

42 The plaintiff had pointed out to him that on 29 September 2004, Sergeant Morris, who by that stage had taken over the arms and appointments portfolio of the CMF, had sent him a copy of a memorandum about persons who had not had their quarterly appointments inspection done, and that his name did not appear on it. However, that was not pressed by the interviewer.

43 The plaintiff later went on to say, amongst other things, this:

“This incident ... occurred not because someone was desirous of obtaining a pistol, but it was just a direct personal attack against me.”

He went on to say that someone was trying to upset him or upset his appointment as Commander of the RBDU, as there was an appeal process going on. He went on to say that he had had a number of clashes with people at the RBDU and there was one who had been passed over for promotion. He referred to that person as being Sergeant Ray Constable. There had been the suicide of a member of the RBDU, Senior Constable David Guff, on 17 August 2004. According to the plaintiff, a number of staff took his death very bitterly and blamed the plaintiff for his death. One of those was Senior Constable Gary Morgan. The plaintiff also made reference to Senior Constable Peter Ray as a person who might have an animus against him because he provided a reference to another member of the squad in relation to that member’s appeal against the promotion of Senior Constable Peter Ray. The person who made the appeal was Mr William Morris, who was successful in the appeal and was appointed, I assume, sergeant at that time. Senior Constable Ray was not favoured by the plaintiff with a reference. In other words, the plaintiff was telling Sergeant Baxter that he believed that his gun had been stolen from the pistol safe at the RBDU by someone within the squad who had an animus against him.

44 The report made by Acting Inspector Huxtable bears date 12 January 2005. It is Exhibit J. It made a finding that a person or persons unknown had stolen the firearm and that the likelihood of that person being identified was “remote”. It also made a finding that the arms and appointments audit function within the RBDU was manifestly inadequate. It recommended that the plaintiff undergo instruction and training in the management of the CMF and that he ensure that all team leaders within the RBDU understand their obligations in relation to the CMF.

45 Under the heading “General Comment”, the following is stated:

“Even the most favourable scenario, being that the weapon was placed in the rubbish, is most disturbing as within that unit is a member who is prepared to engage in such a sinister act. The alternate hypothesis is that the weapon was sold or handed to another person is of greater concern.”

Clearly, Acting Inspector Huxtable believed that the gun had been removed from the pistol safe by a member of the RBDU with the intention, perhaps, of embarrassing the plaintiff.

46 The investigation actually conducted by Acting Inspector Huxtable was not particularly satisfactory, and in these proceedings has been criticised by now Inspector Craft, and there is good reason to accept the criticism raised against the investigation by now Inspector Craft.

47 In addition to the interview of the plaintiff and obtaining his statement, Acting Inspector Huxtable obtained statements from Senior Constable Golding and Sergeant Geddes, Sergeant Geddes confirming what the plaintiff had told Sergeant Baxter about the securing of his firearm with the RBDU, and again giving the date of that event as “on a day in about early June 2004”. According to Sergeant Geddes’s statement, he never noticed the plaintiff’s firearm after that one event of when the gun was secured on peg number two in the pistol cabinet.

48 As a result of the investigation it was recommended to the Deputy Commissioner of Police, who was then Mr Scipione, that Senior Constable Golding be counselled for failing to make further enquiries regarding the whereabouts of the plaintiff’s firearm on 22 August 2004. He was in fact formally counselled, but he had done the right thing: he had reported the discrepancy to his immediate supervisor, his senior sergeant, who had then done nothing. The person who ought to have been counselled was Senior Sergeant Smith.

49 On 15 March 2005, an assistant commissioner, Mr Waites, wrote to the Deputy Commissioner and told him that the investigation conducted was satisfactory and the recommendations made by the investigating officer were supported.

50 Nothing further occurred about the plaintiff’s missing pistol until officers attached to the State Crime Command recovered it on 17 March 2006 when they executed a search warrant after receiving information from a “community source”. The plaintiff’s pistol and another police Glock pistol, nine Glock pistol magazines, two pairs of New South Wales Police handcuffs and 1500 rounds of New South Wales Police ammunition and a New South Wales Police range target were recovered when the search warrant was executed. The person in whose possession these items were found is referred to in the evidence before merely as “the source”. He was arrested and charged at Penrith Police Station on 17 March 2006 and participated in two electronic interviews with investigators from the State Crime Command.

51 Subsequently he gave a further interview to the Professional Standards Command of the Police Force on 7 June 2006. Inter alia, the source provided a re-enactment of what he had done, and there was the use by the police of “an induced statement”, by which, I infer, is meant that the source was offered some accommodation if he told police the truth. The truth was that the plaintiff’s pistol, P2, was stolen from the police armoury on 28 May 2004 by a civilian contractor working in the armoury. The plaintiff’s pistol was in fact in a safe in the armoury but the safe was unlocked.

52 On 5 April 2006 the Professional Standards Command had settled terms of reference in relation to Operation Eame. The purpose of the investigation was to ascertain the circumstances of the theft of the items recovered from the source, including the plaintiff’s pistol, P2. The officer-in-charge of Investigation Eame was then Detective Sergeant Matt Craft, who has since then been appointed a Detective Inspector of Police. It is for that reason that the source attended the Professional Standards Command and was interviewed on 7 June 2006.

53 The investigation performed by Mr Craft was thorough, diligent and searching and, in my view, wholly reliable in its ultimate conclusions. Mr Craft gave evidence before me and I have no hesitation in accepting him as an honest and reliable witness. I also wholly endorse the conclusions which he reached, the findings of fact that he made.

54 On 13 July 2006 Mr Craft commenced an electronically recorded interview with the plaintiff. At first he attempted a normal criminal interview. Mr Craft was accompanied by Detective Inspector Pisanos who was also attached to the Professional Standards Command. That interview commenced at 10.54 but the plaintiff terminated that interview very shortly after its commencement because he did not wish to be interviewed in the normal criminal mode. A further interview commenced at 11.28 am on 13 July 2006 in the departmental enquiry format.

55 The plaintiff told Mr Craft that he continued to keep his appointments, including his pistol, at the armoury until he received the “nomination” to be given the substantive rank of Commander of the RBDU. The plaintiff had been interviewed for that position on 22 April 2004 and was advised on 14 May 2004 orally that he was the preferred candidate for the position of Commander of the RBDU. The plaintiff went on to tell Mr Craft that he made the decision to clean out his locker at the armoury and take his appointments across to the RBDU.

56 He said that that occurred on or about the time he had Operation Explorer on at Holsworthy because at the time of Operation Explorer he had his appointments with him because he was acting in a semi-operational capacity and was storing his pistol at that time for one or two nights at his home address in his approved pistol safe. Again I point out that Operation Explorer occurred on 31 May 2004 and persisted until Wednesday, 2 June 2004 and those were times after the plaintiff’s pistol had actually been stolen from the armoury. He went on to tell Mr Craft that he thought he moved his pistol to RBDU after Operation Explorer.

57 At question 116 the plaintiff was asked to recall the date when he actually took his pistol from the armoury to the RBDU. He said this:

“Well, the only reason I was able to sort of place the date was, because I looked at the rosters and it was the only time Anthony Geddes was working day shift on or about that time frame and Anthony definitely was there with me. So that’s how I was able to sort of ascertain the approximate date.”

He was then asked in a leading form whether that date was Friday, 4 June 2004 and the plaintiff replied positively. He went on to say that that was as close to the date as he could establish with what he could remember.

58 Question and answer 136 are these:

“Q. Now, you indicated that after you secured your firearm at the Rescue Squad on the fourth, on Friday the fourth of 2004 that that was the last time you saw it.
A. That’s my last clear recollection of me seeing that firearm, you know, I’m not going to discount that I may have handled it subsequent to that, but I can’t remember, I can’t remember withdrawing the pistol from the pistol safe and I’m sure I would be able to remember doing that, because I’d have to unlock the key and get someone to let me in there and ‘cause I don’t have immediate access in there, but I don’t remember that happening, but you know, that is my last crystal clear memory of the pistol.”

The plaintiff was asked to tell Mr Craft what happened after 4 June 2004. He said this:

“Well, after, transpired after that date I think one of my staff, I was heavily involved with one of my staff who had committed attempted suicide twice, ultimately killing himself. I, we had some major changes in the way we did our training, which put a lot of workload on people. It was a very demanding period in my life, those months, plus again as I say, I was trying to help the Commander of the Armoury at that point of time with, he’d never done applications for a lot of things, so I was lending a lot of assistance to Graham Ross, to help run the armoury. I still felt a moral obligation, you just don’t walk out of the place and not be there to help them, yeah, plus the Rescue Squad, and so they were, again, no one prepares you for command. I’d gone from a very insular little command with public servants who I never had any managerial issues with. You ask them to do something they’d do it, to a section where I was having a lot of managerial issues plus a staff member who was clearly ill and as I say, it was a very traumatic time for me then.”

In answer to question 185 the plaintiff said that at the time he noticed his pistol was missing he was “in absolute panic mode” and went on to say, “It’s a fairly major thing to have one of your appointments go missing”.

59 When asked about why his name was not on the weekly checking lists, he said it was never added to the weekly checking list by Sergeant Geddes. He also mentioned the fact that Senior Constable Golding had noticed the firearm missing on Sunday, 22 August 2004 but “he didn’t raise that issue with anybody”. That statement is obviously incorrect as Senior Constable Golding reported the matter to Senior Sergeant Smith who was the person who did nothing.

60 When pressed about how he reacted to his finding that his firearm was missing, he said that his initial response was “just self-doubt”, as he could not conceive of how his gun had gone missing. He then said that he became fearful that it had been stolen.

61 At question 235 the plaintiff was asked if he could explain his theory about how P2 went missing. He said this:

“Well, you know, again at the time the only, you had to have key access and there was certainly no indication that the safe had been broken into, so someone had key access and, you know, it’s the Rescue Squad, there’s more bolt cutters than you can poke a stick at there and someone just cut the padlock off and my pistol went.
Q. Now, you mentioned somebody, I think that’s a pertinent point to raise here at this time. Would you agree that if we define somebody, it would be a serving member of the New South Wales Police?
A. Yes.”

62 When asked about his appointments card, he said he did not take that card across with him from the armoury to the RBDU as

“I just assumed that I’d get a new card started, ‘cause that was an old format and they were using new cards there and I assumed I would get a new card made up for me at the Rescue Squad.”

63 At question 271 the plaintiff was asked who he thought was responsible for the theft of his firearm. Again he said that he saw that as a direct attack upon him by someone at the RBDU. Again he raised the prospect that his gun was stolen to discredit him and in particular because of the upcoming appeal against his appointment. That appeal was actually dealt with on 23 September 2004 and was unsuccessful. Again the plaintiff raised as possible thieves Sergeant Ray Constable, Senior Constable Peter Ray, by persons who were incensed about the suicide of Senior Constable Guff and who blamed the plaintiff for that suicide.

64 Later in the interview the plaintiff said that he had become aware that his pistol had been recovered because he had been told that by Sergeant Wraith who was then working at the armoury. He was asked what he thought when he heard that his pistol had been recovered and he said this:

“Well, I was just wondering, I found it, well, it blew all my theories out of the water, ‘cause I always was of the belief that it was taken as an act of malice, but then suddenly it’s turned up so I was dumbfounded as to what, how the connection ran.”

He later said that the recovery of P2 really did not cause him to change his opinion a great deal.

65 He was then asked about Operation Explorer and said that he had his pistol for the three days of Operation Explorer. That was untrue. He said that he probably would have gone to Operation Explorer via the armoury in order to pick up his appointments to wear them at Operation Explorer. He said that he did not like taking his firearm home. He said that when Operation Explorer was on he took his firearm home because it finished late each evening.

66 When asked if he could exclude the theft of his firearm from the armoury, he said he could not rule it out but he did not believe it to be likely because of where he had his appointment belt, that is the belt on which he generally wore his firearm when he was carrying it.

67 In answer to question 390 the plaintiff again pointed out that he was having problems with managing some of his staff and he said that in 2005 he was not making “any headway out there with certain individuals”. He said that there were people who were going to hate “you no matter what you do, they just hate you”. In answer to question 392 the plaintiff said that he had some “very bizarre individuals” amongst those at the RBDU.

68 In answer to question 408 the plaintiff said that he could not account for his firearm ending up in the location where it was actually located. Further on he said this:

“I found [it] extremely distressing and ... what the Inspector raised earlier, it certainly, I found it really hard remaining at Rescue afterwards, ‘cause to know that there was someone there who hated me that much. You know, a couple of times I felt for my own personal safety, that, you know, they hate me that much they could do that, who knows what they were capable of doing um, you know, I find the whole thing, you know, just very embarrassing. I’ve had, what I believe to be a very good career and this is just an absolute blight.”

69 After that interview Mr Craft made further enquiries of other staff, including, for example, Sergeant Morris. There was then a further interview conducted with the plaintiff on 28 July 2006. The plaintiff was accompanied at that interview by Detective Chief Inspector Julie Middlemiss who was then the Commander of the Dog Unit at the State Protection Group, who was accompanying him as a support person. Again at the interview Mr Craft was assisted by Detective Inspector Pisanos. The interview commenced at 2.55 pm and concluded at 5.42 pm. The plaintiff again asserted that at Operation Explorer he was wearing his pistol. In answer to question 66 the plaintiff said it was perfectly clear that he attended the first day of Operation Explorer wearing his appointments. That again was untrue. Commencing at question 208 the plaintiff volunteered that he definitely had his pistol for Operation Explorer and he confirmed that it was about 1 June and 2 June and also it commenced on 31 May. He said that after Operation Explorer he had a meeting at the Sydney police centre when he probably would have returned his firearm to the armoury.

70 At question 265 the plaintiff was shown a photograph. The photograph is of the plaintiff taken at Operation Explorer when he was not wearing his appointment belt and clearly was not carrying his pistol. The plaintiff said he found that “surprising” and he was at a loss to explain why he was not wearing his pistol as shown in the photograph. He went on to say this:

“If I’m not wearing them in this photo, I don’t believe I would’ve been wearing them on the other days, I’m, again I’m at a loss to explain why I haven’t got my appointments on.”

He went on to say that if he was not wearing his appointments they would probably have been at the armoury.

71 He was then confronted with his diary for 2004. It records that on 27 May 2004, a Thursday, he was off work and that on Friday 28 May he was supposed to be at a meeting at Minerva between 8 am and 5 pm but down the bottom of his diary he noted that he was off sick with the flu. It was then suggested to the plaintiff that the logs indicated that on 28 May, which was the day that he is supposed to have the flu, he entered the Sydney police centre at 12.54 pm and left the Sydney police centre at 2.16 pm. This the plaintiff could not explain.

72 Again, in answer to question 329, the plaintiff affirmed his belief that his pistol had been stolen as an act of malice. He went on to say that he did not recall going back into the pistol safe and getting P2 off peg number 2 from the pistol safe in the RBDU and if he had have done that he would have had a strong recollection of it because that is an action that he had never performed. He went on to say that he still believed that his pistol was taken from the RBDU because his appointment belt, which he has referred to as his pistol belt, was still in his locker at the RBDU. He went on to say that if he had taken his pistol out of the pistol safe at the RBDU, why would he not have taken the padlock as well as the pistol? When asked what he had done with his key to the padlock he said that he thought he had tossed it out.

73 Again, at question 336, the plaintiff referred to his continuing belief that the pistol was stolen from the RBDU by some member of the staff who had an animus against him because of either the suicide of Senior Constable Guff or the changing of procedures and other changes the plaintiff had made at the RBDU.

74 In answer to question 374, the plaintiff said that he had never discounted the possibility that the gun could have been at the armoury and stolen from the armoury and went on to say that that, however, did not gel with his memory of things. Detective Inspector Pisanos then put to the plaintiff that the only time he had ever discounted his theory was when he ascertained that two pistols were found at the same time. He went on to say that he had previously referred to treacherous persons at the RBDU being involved in the theft of his firearm. It was then suggested to the plaintiff that he had hedged his bets because the only time he changed his story from the theft from the RBDU to the possibility of a theft from the armoury was when it was ascertained that his pistol was recovered with another police Glock pistol. The plaintiff would not agree with that, but it was then pointed out to the plaintiff that initially he treated the gun safe and the room in which the gun safe was located at the RBDU as being a crime scene.

75 Commencing at question 417, the plaintiff was challenged about how it would reflect badly on him if his firearm were stolen from the armoury, bearing in mind that he had served there for fifteen years and had been its head and had introduced Glock firearms to the New South Wales police and held the “precious” P2 pistol. It was suggested to the plaintiff that it would be far easier for him to admit a theft of his firearm and blame someone at RBDU than it would be to have the theft recorded as being from the armoury. The plaintiff denied that entirely.

76 It was then suggested to the plaintiff that on many occasions, for example, on 9 June 2004, he had entered the armoury on repeated occasions and he was asked what was he doing there. Was he, for example, trying to find a missing firearm? In other words, it was being suggested to the plaintiff that he may have ascertained that his firearm was missing shortly after it had been stolen from the armoury and then sought to cover it up lest it impede his appointment as commander of the RBDU. In further answers the plaintiff said that he did not “have crystal-clear memories about my firearm movements at that time” but that is somewhat contrary to what he had said on other occasions. He agreed that it reflected poorly on him that his recollections were erroneous and that the loss of his firearm was embarrassing.

77 In answer to question 525 the plaintiff agreed that his position had changed and the evidence obtained by Mr Craft was “irrefutable”. At the end of the interview, as he did at the end of each interview, Mr Craft told the plaintiff that there were available to him the services of the health and workplace services branch including a psychology section, the welfare branch, the police chaplaincy and the rehabilitation section if he felt that he might need assistance from any one or more of those agencies.

78 Mr Craft established the probability that the plaintiff moved his firearm from the armoury to the RBDU on Thursday 20 May 2004. The Sydney Police Centre access records indicated that the plaintiff entered the armoury at 9.26 am on that day and left at 11.47 am. That date had particular significance as it is shortly after the plaintiff had received “his nomination” as commander of the RBDU on 14 May 2004. According to Mr Craft’s report, it was apparent from information supplied to the investigators by the plaintiff that he saw his position as somewhat permanent following upon that “nomination” and he would feel more inclined to commence breaking his ties with the armoury at that time. The significance of 20 May is that Mr Craft was able to ascertain six dates from the roster when the plaintiff and Sergeant Geddes worked together on dayshift and those six days are between 20 April 2004 and 14 June 2004. One of them was 4 June 2004 which had been the date nominated by the plaintiff, but the preceding date, 20 May 2004, was the more likely date according to Mr Craft and tied in with an entry by the plaintiff into the armoury when he would have collected his appointments.

79 Mr Craft was able to ascertain that it was more probable than not that on Monday 24 May 2004 the plaintiff again placed his pistol in the safe in the armoury. He was at the Sydney Police Centre on that occasion between 12.43 pm and 5.13 pm and there was an entry into the armoury recorded during that period of time. 5.13 pm, of course, is a significant time because it essentially is “knock-off time” for any person observing managerial hours, as the plaintiff generally did. Rather than returning to the RBDU base at Zetland, it is more likely that he would go directly to his home at Kenthurst. As he did not like taking his firearm home, he would have left it in the safe at the armoury.

80 The plaintiff did attend at the Sydney Police Centre on Wednesday 26 May 2004 and during the hours I have already mentioned on Friday 28 May 2004, but there is no evidence that he entered the armoury on either of those days. As I have already pointed out, the pistol P2 was stolen at some time on Friday 28 May 2004 by a civilian contractor.

81 That the plaintiff moved his gun to RBDU is undoubted. Sergeant Geddes confirms the move. The move is confirmed by the entry on the list on the door of the gun safe which was consulted by Senior Constable Golding when he noticed that the plaintiff’s firearm was not there on 27 August 2004.

82 A question which arose in this case is why was the plaintiff’s gun not included in the weekly checking list? The reason for that omission is clearly, according to the plaintiff’s version of events, the fault of Sergeant Geddes. Exhibit 21 before me is the record of interview conducted by Mr Craft with Sergeant Geddes on 8 August 2008. Part of Sergeant Geddes’ answer to question 37 was this:

“I told him we needed his appointment card to be sent down from the armoury, that was going to be secured there permanently, and that’s all that was said, that was it.”

In answer to question 115 Sergeant Geddes said this:

“I mean for him to have his appointment card sent down so the records could be maintained, which I did mention to him, anybody could have done that, anybody could have locked it [P2] away, anybody could have witnessed what I witnessed. I really don’t know why he chose that day and why he chose me.”

Commencing at question 247, Sergeant Geddes said this:

“His appointment cards were not with him, I asked, I told him he should get them sent down from the armoury, which he knew he should have anyway, so they could be lodged in the inspection book, which is just a folder where all the inspection cards are kept.”

Sergeant Geddes’ answer to question 249 was to agree that there was no record made on the weekly checking list or indeed on the quarterly checking list. He went on to say this:

“I might look like a bit of a fool here because it was my own responsibility, but I asked him to have the card sent across.”

Sergeant Geddes’ answer to question 284 was this:

“I would’ve spoken to Steve McGilchrist and asked had he had his firearm appointment, had he had his appointment card sent across, as I discussed previously with him. Because had they been sent across then he would have been included somewhere on these forms.”

In other words, Sergeant Geddes made it quite clear that he asked the plaintiff to have his appointment card sent over from the armoury to the RBDU or to bring it from the armoury to the RBDU so that his name could be entered on the checking lists. The quarterly checking list gives the serial numbers of the pistol, handcuffs, capsicum spray, baton, ballistic vest, warrant card and driver’s licence of each member of the RBDU. One could understand Sergeant Geddes’ desire to have the appointment card for the plaintiff so that he could record on the quarterly checking list the numbers of each of the plaintiff’s appointments.

83 The failure of Sergeant Geddes to add the plaintiff’s name to the appointments checking list, both weekly and quarterly, is not solely due to the fault of Sergeant Geddes, but equally can be seen as the fault of the plaintiff in failing to do what Sergeant Geddes asked him to do, and which any police officer who is transferred ought do. Furthermore, it was never suggested to Sergeant Geddes, nor did he volunteer, that the plaintiff asked him to make up a new appointments card because his, that is, the plaintiff’s appointments card, was now an outdated one.

84 It is clear that from the beginning the plaintiff made a number of assertions which were untrue. The first was the assertion that it was on 4 June 2004 that he transferred his appointments from the armoury to the RBDU. The second untrue assertion was that he never removed his gun from the gun cabinet at the RBDU. The third assertion was that it was stolen from the gun cabinet at the RBDU, and the fourth assertion was that it was stolen by a member of his staff who had an animus against him.

85 The probabilities, in my view, favour that the plaintiff, when his gun was found not to be in the gun cabinet at the RBDU, had forgotten where he had left it. Rather than admitting that he had forgotten where he left it, and that he may have left it at the armoury, or he may have left it at the RBDU, he positively asserted that he had left it at the RBDU and then positively asserted that the only reason it could be missing was because it had been stolen by a member of his own staff.

86 The assertion that the firearm was stolen by a member of his own staff carries with it a grave implication. This was acknowledged by learned counsel for the plaintiff when he was cross-examining Mr Craft. At page 608 of the transcript, the following question and answer occur:

“Q. And he [the plaintiff] is concocting a story which would effectively create, as apparently it did, a poisonous working relationship within the unit?
A. Yes, that did transpire, it existed prior, from what I understand as well ...”

Furthermore, the need for Operation Eame made things even worse. The next question and answer recorded in the cross-examination are these:

“Q. And would have been made much worse by allegations that somebody within his command had stolen his gun?
A. It certainly did once I started my investigation. I believe that was the sentiment.”

In the course of Operation Eame, Mr Craft had to interview all those who were present at the relevant period in the RBDU to ascertain whether that member of the staff, whether male or female, knew anything about the alleged theft of the plaintiff’s firearm, an allegation the plaintiff had himself made back in 2004.

87 Shortly after the interview with the plaintiff on 28 July 2006, the plaintiff went on his planned long service leave. The plaintiff’s travel took him to Broome. Whilst he was in Broome, the plaintiff received a phone call from Sergeant Morris that a complaint had been made against the plaintiff by Sergeant Constable. That complaint was received from the complainant on 26 June 2006. The substance of that complaint is not before me. The substance of the complaint was never put to the plaintiff in any regular fashion, for reasons to which I shall in due course turn. However, the plaintiff certainly had some knowledge of what the complaint contained, drawn, no doubt, from the hearsay that is known as the “police grapevine”.

88 Prior to returning to duty from his annual leave, the plaintiff received a phone call from Chief Superintendent Gilham, in which Chief Superintendent Gilham told the plaintiff to report to him as his staff officer for a week until he returned from some course or other duty, at which time Superintendent Gilham would speak to the plaintiff. When the plaintiff turned up to act as Chief Superintendent Gilham’s staff officer, he found a list of duties to perform there and he performed those duties over the week in question.

89 The plaintiff told me that when he received direction to report as Chief Superintendent Gilham’s staff officer, he was “genuinely fearful” because it was not usual for a police officer to be told by his superior whilst on leave to report to some location other than one’s normal work location.

90 When Mr Gilham returned, he told the plaintiff that there were “some managerial issues arising from the investigation” and that the plaintiff needed to go to a local area command to broaden his experience and that he should ring around and find a place to which to go. It is clear that the plaintiff understood that the purpose of this exercise was to broaden his managerial experience. The plaintiff told me that he was upset and anxious that something was happening to which he was not completely privy. However, he made phone calls as directed. One person he phoned was Inspector Nigel Taylor at the Maroubra LAC, and Mr Taylor agreed that the plaintiff could go to Maroubra and work in conjunction with him. The plaintiff told that to Mr Gilham and Mr Gilham then rang Mr Taylor and chatted to him about that appointment. That arrangement was to persist for six weeks or so, through October and into November.

91 The plaintiff agreed that he volunteered for those first six weeks of alternative work, that he concurred with the direction he had been given by Mr Gilham. The plaintiff told me that during his period at Maroubra, Mr Gilham came out to visit him on one occasion.

92 Whilst the plaintiff was still at Maroubra, he had a meeting with Assistant Commissioner Kaldas and Chief Superintendent Gilham. The meeting occurred at the Counter Terrorism offices at North Sydney. Clearly, Assistant Commissioner Kaldas was superior to Chief Superintendent Gilham, and no doubt the SPG was part of Mr Kaldas’ portfolio. This evidence was given in chief:

“Q. And again, doing the best you can now, are you able to relate to the Court what was said as between you and Mr Kaldas?
A. Mr Kaldas said to me that I would not be returning to rescue and that I needed to find another location to go to. I pointed out that I found that extremely unfair, given that the investigation hadn’t even been completed at this stage and that, as far as I was aware, there had been no risk assessment or any other of the actions I believe should have [been] taken to justify my ongoing - my removal at that stage, particularly in light of the fact that the investigation was still ongoing and he had clearly made up his mind that I was to be moved.

HIS HONOUR:

Q. Which investigation was ongoing?
A. The one into the theft of Glock number 2.

O’ROURKE:

Q. Did you ask Mr Kaldas to do something in relation to what he was proposing?
A. Well, he offered to find me a location at crime agencies. He said there was some project management over there that might suit me at crime agencies. So I really had no background with crime agencies. I didn’t see that was reasonable. As I say, at this point of time I don’t believe all the - you know, I was in shock that this was being decided before due process had taken place.”

I shall have in due course to return to the process of “risk assessment”.

93 The plaintiff told me that after that meeting he continued to work at Maroubra but he was angry and he did not believe that he had been given a fair hearing or experienced a fair process. He told me that he was indignant that policies and procedures that were in force were not observed by Mr Kaldas as they would have to be adhered to between a commander such as himself and his subordinates. He felt as if he did not belong to the same system. He told me that he thought he was “being made a scapegoat” at a time when no findings had actually been made.

94 The plaintiff obviously did not take up the suggestion of Mr Kaldas that he go to crime agencies or accept Mr Kaldas’s offer that he find a location for the plaintiff at crime agencies. The plaintiff stayed on at Maroubra but then left when Detective Inspector Pisanos, who had been assisting Mr Craft, was appointed to Maroubra as the Crime Manager, which is the second in charge of the LAC.

95 He told me that the advent of Mr Pisanos made him feel “extremely uncomfortable” to be working in his presence, and that he rang his friend, Superintendent Robert Williams, who was the commander of the Sutherland LAC, and asked Mr Williams if he could start working with him at Sutherland. That occurred. The plaintiff worked at Sutherland until he requested to be moved to the Dog Unit, which was still commanded at the relevant time by Ms Middlemiss, who at the time that she gave evidence to me had become a chief superintendent.

96 According to a report generated by Ms Middlemiss on 9 March 2007, the following occurred:

“Since approximately 29 January 2007, Inspector McGilchrist has been working at the Dog Unit. This arrangement was informal and was requested by Inspector McGilchrist as he had completed a period of rotation/shadowing at LAC’s outside of the SPG. No other temporary work location had been arranged by the State Protection Group, and with the approval of the then commander SPG, Inspector McGilchrist has been working (informally over strength) on a number of projects at the Dog Unit.”

Before proceeding further, I should recite one event that occurred at Maroubra.

97 In the early hours of 20 October 2006, the plaintiff accompanied Mr Taylor to the reserve that runs behind the length of Maroubra Beach, and he saw there a man of Asian appearance hanging in one of the seating areas of the reserve. He was hanging by his neck, clearly the victim of either homicide or suicide. The plaintiff told me that he remained at the scene for between 20 and 30 minutes. The deceased was certainly hanging when he arrived but the plaintiff was unable to recall whether he was brought down whilst the plaintiff was there.

98 The plaintiff told me in his evidence-in-chief that this:

“opened up a wealth of feelings I had about Mr Guff’s issue, particularly that area had some significance to me from my youth, and certainly it was very uncomfortable being there, and I was anxious to leave the scene.”

HIS HONOUR:

Q. Prior to the investigation being completed?
A. Prior to the investigation being completed? That’s what I said before, absolutely. Otherwise I’d just be making it up, wouldn’t I?”

The question is: was some irrevocable and final decision made and communicated to the plaintiff by Mr Kaldas and Mr Gilham in November 2006, or were they merely giving advice? That is, from their experience was it likely that the plaintiff would be unable to return to the RBDU and, therefore, he should look for another opening where he might serve the rest of his professional career?

152 In my view, the only logical conclusion is that Mr Kaldas and Mr Gilham were merely giving the plaintiff informal advice and not making a final decision. That is because the process continued to be followed and continued throughout 2006, throughout 2007 and up until the service of the s 173 order on 22 September 2008. Not only did it proceed normally but the plaintiff himself anticipated that it would proceed normally. He did not, for example, remonstrate with Mr Benson at the meeting on 8 March that “I knew that was going to occur because the decision had already been made by Mr Gilham and Mr Kaldas.” The plaintiff invoked his right to have the matter go to the IRP and that occurred. He knew that the decision was not a foregone conclusion. He still expected, up until the time of the IRP, that he might be able to return to the command of the RBDU.

153 The plaintiff, albeit belatedly, exercised his right to put in submissions to Mr Benson about the proposed order under s 173 and, no doubt, he expected some weight would be given by Mr Benson to those submissions. The process continued and involved many important people and it was never suggested, for example, to Mr Benson, that the decision he made was a complete sham because the decision had already been made by Mr Kaldas and, for example, communicated to him by either Mr Gilham or Mr Kaldas.

154 That the plaintiff himself did not perceive the advice of Mr Kaldas and Mr Gilham given to him in October or November 2006 as final is also evidenced by the fact the plaintiff was continuing to do what Mr Gilham had suggested to him to do to broaden his managerial experience, so that he could improve his managerial skills.

155 The other thing which I must bear in mind is that it appeared to me, as the tribunal of fact, that it was almost inevitable from the time that the plaintiff alleged that one of or more of his subordinates had stolen his pistol from the pistol cabinet at the RBDU that it would have been impossible for him to have continued to be the commander of the RBDU because every member of the unit could think that he or she might be a suspect.

156 That that which Mr Kaldas and Mr Gilham told the plaintiff in October or November 2006 was appropriate is borne out by the facts. Mr Benson himself formed the view that the plaintiff was not fit to command the RBDU. The same had been recommended to him by Mr Craft. The same was upheld by the IRP. In my view, the process as well as the outcome were reasonable.

157 A very strong opinion in that regard was given by Mr Benson. He expressed this view:

“I’m on record in a number of areas by saying that, again, the totality of this matter, I believe that the IRP undershot it dramatically. The issue of - and it’s been identified in a number of - a number of the investigations, professional standards, the loss of the firearm, the end result of that was basically New South Wales Police smashed Inspector McGilchrist with a really big feather. We so undershot it, it wasn’t funny. This man lost his firearm, basically lost half of his command in terms of respect and everything else that goes along with investigation. He kept his rank, kept his seniority, kept his increments, and had no loss of money, nothing. We were prepared to move him to a location closer to his home. As the commander of Rescue and Bomb, he was on call, lot of stress, lot of pressures, lot of everything else. He could have become a duty officer, no loss of money, nothing out in the local area command, four days on, four days off. Absolutely, we undershot it I think.”

That essentially is a protestation by Mr Benson that the ultimate discipline rendered to the plaintiff was equivalent to a school boy being caned with a feather.

158 The plaintiff says that there were other blemishes in the process which also vitiated the reasonableness of the action of the plaintiff. The plaintiff complained that he was left to his own devices, was not assisted, but then also complained that he was shunted around, which is the direct opposite of the former.

159 The fact is that in October 2006 Mr Gilham decided that the plaintiff should have some professional development, suggested to the plaintiff that he find an LAC where he could go, where he could work with the commander to broaden his experience. The plaintiff himself found Maroubra for that purpose and that was acceded to by Mr Gilham and Mr Gilham spoke with the local area commander.

160 The plaintiff could have stayed on at Maroubra but decided to move himself because he did not want to work with Detective Inspector Pisanos. The plaintiff moved himself to Sutherland LAC where he was an old friend with a commander, Mr Williams. From there the plaintiff moved himself to the Dog Unit which was part of the SPG and that movement was at his own request. There is no suggestion in the evidence that he had to leave Sutherland LAC.

161 On 28 May 2007 he would have been required to move from the Dog Unit for the reasons which I have already pointed out. However, that move was not necessary because on 15 May 2007 the plaintiff had stopped working, on sick report and never returned to work prior to his medical discharge. That is not a person who was left with no assistance, nor is it a person who is being “shunted around”. One asks, rhetorically, if the plaintiff had not found himself an opening at Maroubra and then an opening at Sutherland and then an opening at the Dog Unit, he might have been more aggrieved if someone acting on behalf of the SPG had managed to find him an opening at some more distant location, such as Goulburn or Bathurst or the Central Coast or perhaps an even less attractive LAC, such as Macquarie Fields or Campbelltown, where the amount of violence is particularly great.

162 One of the issues that was raised for my determination was whether it was necessary for the decision that was made by Mr Benson to go to the IRP, even if the plaintiff acquiesced in the action proposed by Mr Benson that was communicated to the plaintiff on 8 March 2007. In that regard there is a conflict in the evidence between the opinion of Mr Benson and the opinion of Mr Williams. I pointed out that the conflict could be solved by the tendering of the relevant policy documents. That was never done. When one considers the evidence of Mr Williams as to why he would always send it to an IRP, it is clear that he would always send it to an IRP lest there be any communication by him of some course of action which he later had to retract, causing him to be seen as foolish in the eyes of his subordinate. However, Mr Benson, a man of higher rank and great experience, did not believe that it was necessary for a decision to be taken to the IRP if the subject of the decision acquiesced, and I cannot see any logical reason why such would not be the case. I therefore accept that it was not necessary for the decision reached by Mr Benson on 8 March 2007 to go to an IRP if the plaintiff acceded in that decision.

163 Furthermore, that goes back to the interaction between the plaintiff and Mr Kaldas and Mr Gilham in October or November 2006. If that had been a final decision the plaintiff would have been entitled to insist that it go to an IRP. He did not. He knew the usual procedures were not being followed and he knew that they had to be followed. They were in fact being followed by a much more lengthy and drawn-out route which the plaintiff was happy to follow. I cannot perceive that he saw the communication to him of advice that was ultimately correct by Mr Kaldas and Mr Gilham to have been final and irrevocable.

164 I have already discussed the interim management plan submissions, but I would again point out what was pointed out by Mr Benson in cross-examination, that the plaintiff was a commissioned officer of police, a man with great seniority in the Police Force. When being cross-examined about the interim management plan Mr Benson said this:

“It does vary but in terms of the level and by that, there is an expectation that you have, for example, and I’ve done it myself, a very detailed outcome report for say a constable and it would be considerably less for a sergeant and it would be considerably less for a commissioned officer or an inspector because there is an expectation that at that level, senior officer with the New South Wales police, that, you know, the level of advice and guidance that - for example, I might be required to receive from my boss, my boss would be horrified if I didn’t have it because, you know, in - and I use Mr McGilchrist’s example, he was able to satisfy a promotions system that promoted him to the rank of sergeant. It talked about how you deal with people, what you do and he was said to be the best applicant, got that job and then again with the - because he got under the old promotions system, went through that, written report, documentation and select committee, everything. Questions in relation to maximising performance, staff, everything. Got through all that and made a commander. So there is - there is an expectation as a baseline that the commissioner signs off as a commissioned officer that - you know, it does happen where people slip through the system but there is an expectation that these people will have a skill set.”

That skill set can be seen in Exhibit 1, the plaintiff’s application for merit appointment as the commander of the RBDU and what the plaintiff had to say about his own competencies. One of the criticisms levelled at the lack of any formal interim management plan was that there was no written plan, there was nothing to tell the plaintiff what he had to do. He was told he had to improve his management skills and sent off to observe and listen. One has to accept that he would not need to be given the written guidance that might need to be given to a probationary constable or a constable bearing in mind his level of rank in the New South Wales Police.

165 Another assessment of why the plaintiff could not stay as commander of the RBDU was given in evidence by Mr Benson. It is worthwhile considering. It is this:

“When I took up that position [commander of SPG] and then ultimately had access and read the information that was available [concerning in the plaintiff], the investigation, all the other documentation, it was quite clear to me that the most appropriate outcome for this was that Mr McGilchrist was not to return as the substantive commander of [RBDU]. The rest the [RBDU] is charged with significant tasks, one being that it has the bomb squad attached to it, it has rescue functions, saving people’s lives. Clearly on the evidence that was available to me, Mr McGilchrist basically accused his command of stealing his firearm. Albeit, there are a number of other things in there about what he said it was and wasn’t and various other things but it was clearly evident that not only had he lost the confidence of his command but his command had lost the confidence of him. It is a command position within my command that is charged with millions of dollars worth of financial expenditure, provisions such as this where you may end up in a court of inquiry and it also must maintain a capability for this State in terms of counterterrorism. Clearly for me, he wasn’t the person for it.”

Mr Benson also questioned the integrity of the plaintiff because that had been raised in the course of the investigation. He pointed out that integrity was at the heart of being a police officer. The significant thing, from my point of view, from what I have just quoted is the fact that in other words that the plaintiff “not only had he lost the confidence of his command but his command had lost the confidence of him”.

166 I accordingly have no hesitation in finding, when looking at the whole of the course of action taken by the defendant, and even bearing in mind the blemishes which I have identified, that the course of action taken by the defendant with respect to the investigation of the plaintiff’s conduct and the discipline of the plaintiff was reasonable action and that reasonable action has caused the certified infirmity.

167 I should just say this about the medical evidence. I have been provided with opinions by Dr Wade who saw the plaintiff on two occasions, 30 October 2007 and 15 November 2007, by Dr Benjamin, qualified by the defendant, who saw the plaintiff on 4 December 2007, by Dr Anderson, qualified by the plaintiff’s solicitor, who saw the plaintiff on 25 July 2008, by Dr Rikard-Bell who was qualified by the STC, that is for PSAC, and examined the plaintiff on 29 September 2008, and by Dr Pickering who saw the plaintiff on or about 16 October 2008. Each of those medical practitioners relies on the history given by the plaintiff. Many of the histories given by the plaintiff are inherently unreliable. When one looks at what the plaintiff told Dr Singh and Mr Pankhurst from time to time there are many statements which are plainly untrue. The opinions of many of the medical practitioners are flawed by their reliance upon the plaintiff’s history, much of which is self-serving. For example, the plaintiff described himself to Dr Wade as a “scapegoat” and a “pariah”. A pariah he may have considered himself; a scapegoat he certainly was not. What happened to the plaintiff arose from his own default in losing his firearm and then making untrue statements as to what had happened to it in the past. When I say “untrue statements” I do not mean deliberately untrue but the statements were just not true.

168 Dr Wade expressed this opinion:

“The likelihood is that away from police work he is going to be totally and permanently incapacitated and probably his life will be limited to what he is doing at present, which is working around his acres, having limited social involvement, only with people that he trusts highly and involving such things as his restoration of cars, the things that he will be doing predominantly on his own, or dealing with people who are not associated with the police, such as his wife, who is manifestly trustworthy and with longer term limitations on his capacity to trust and to feel all that comfortable in social situations.”

That prognosis is absurd. Four days after being medically discharged the plaintiff started working full-time as the operations manager of the Corrective Services Armoury for this State, one would think an equivalent position to the one he held as commander of the New South Wales Police Armoury.

169 Dr Pickering’s report of 16 October 2008 is also emblazoned with self-serving statements and generalisation. After thanking Dr Singh for referring the plaintiff to him, Dr Pickering states, “His story is one that is familiar to me.” Were I to say that Dr Pickering’s reports were familiar to me I would fall into error. The first paragraph of the report continues:

“A series of incidents occurred which put him out of favour with the very senior officers who determine his fate. He was criticised by his assistant commissioner for doing something that was in fact correct procedure but the assistant commissioner was upset that he did not put it through him. [Neither I, nor either counsel know to what this refers]. There was also an absurd complaint involving allegations of corruption which were completely unfounded, and another allegation that complained he wore a brown suit to a parade [semble, part of Sergeant Constable’s complaint] (because his dress uniform as a newly minted commissioned officer was not yet available). He has been put in front of an internal review panel, essentially a body that has many similarities with the infamous Star Chamber with no records and no accountability. [There is nothing to support this outrageous assertion.] His attempts to get out of the Police Force on medical grounds and join Corrective Services as armourer have been impeded to the point where it will probably not happen because the Police Force will not give him the report that is due to him [an erroneous prognosis]. It would be simple for an officer who knew him well to sign off on his reference, but instead an officer who has spoken to him for fifteen minutes and made it quite clear he wanted him out will do this, but the actual reference will not be available until his matter before the Industrial Relations Commission has been heard, by which time it will clearly be too late for him to get what would have been an excellent job for him.”

The matters in square brackets are my comments. On the latter part of this report I would point out the thing that was impeding the plaintiff’s medical discharge was the usual alacrity engaged in by the STC and PSAC, which if it went on a go-slow would move backwards. Furthermore, the Commissioner of Police as a policy does not issue certificates of service until the service has been completed and the service could not be completed until the medical discharge had been completed. Furthermore, the plaintiff never made any application to the Industrial Relations Commission. When the histories contain such material, one must question the validity of the opinions expressed by those who take and rely on such histories.

170 I commenced these reasons about 10.30. It is now 6.13. Are there any further reasons for judgment required?

O’ROURKE: No, your Honour.

Sharpe: No, your Honour.

171 I have requested of the parties whether any further reasons for judgment are required. I am told that none is so required. For those reasons, I confirm the decision the Commissioner of Police made on 6 January 2009.

172 The exhibits to be retained for 28 days.