Wolodymyr Holovinsky v The Commissioner of Police (No 2)

[2006] NSWDC 87

CITATION:	Wolodymyr Holovinsky v The Commissioner of Police (No 2) [2006] NSWDC 87
HEARING DATE(S):	06/12/2004-09/12/2004,13/12/2004-14/12/2004,16/12/2004-17/12/2004, 07/06/2005-09/06/2005, 15/06/2005, 31/07/2006-25/08/2006, 01/09/2006
EX TEMPORE JUDGMENT DATE:	08/24/2006
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Set aside the decision of the Commissioner of Police made on 9 October 2000. The suffering by the plaintiff of the infirmity of "adjustment disorder with anxiety and depressed mood and post-traumatic stress disorder", as specified in the certificate of the Police Superannuation Advisory Committee dated 27 September 2000, was caused by the plaintiff’s having been hurt on duty on 31 December 1990.
CATCHWORDS:	Police Regulation (Superannuation) Act 1906 - Hurt On Duty Claim - Psychiatric Injury - Plaintiff passes information about an $8.5 million cannabis crop to a junior officer in the lavatory of a hotel whilst plaintiff off duty and drunk - Plaintiff becomes a police suspect - Eventually plaintiff charged with serious offences - Imprisoned at Long Bay Gaol whilst bail refused for 3 weeks - Accepted that that caused PTSD - Lengthy committal hearing - Plaintiff discharged - Ex officio indictment - Lengthy criminal trial - Plaintiff acquitted - Whether what occurred to plaintiff "arose out" of his service - Numerous authorities considered - Defence pleaded of "serious and wilful misconduct" - Workers Compensation Act 1987, s14(2) - Injury not "solely" due to gross misconduct - Serious and permanent disablement resulted - Claim succeeds, defence fails -
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 Workers Compensation Act 1987 Evidence Act 1995
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Dive v Commissioner of Police (1997) 15 NSWCCR 366 Carr v Donnelly [1937] WCR 294 Lancashire & Yorkshire Railway Company v Highley [1917] AC 352 Collins v The Commissioner of Railways [1961] WCR 164
PARTIES:	Wolodymyr Holovinsky (Plaintiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ 6454/00
COUNSEL:	Mr B Gross QC (Plaintiff) Ms A Stenmark SC and Mr A Kostopoulos (Defendant)
SOLICITORS:	Proctor & Associates (Plaintiff) Bartier Perry Solicitors (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Mr Wolodymyr Holovinsky, is more commonly known as Fred Holovinsky. The plaintiff is a former sergeant of police. He was attested as a probationary constable on 2 July 1973, and thereupon became a contributor of the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 (“the Act”).

2 Mr Holovinsky resigned his office as sergeant of police with effect on 19 March 1997. On 27 September 2000 the Police Superannuation Advisory Committee established under the Act, certified that at the time of his resignation, the plaintiff had been incapable of discharging the duties of his office on account of the infirmity of “Adjustment Disorder with Anxiety and Depressed Mood and Post Traumatic Disorder” pursuant to s 10B(2)(b) of the Act.

3 On 9 October 2000, the defendant, the Commissioner of Police, determined that the suffering by the plaintiff of the infirmity certified by the Police Superannuation Advisory Committee was not caused by the plaintiff’s having been hurt on duty. From that decision of the Commissioner of Police, the plaintiff brings this appeal, pursuant to s 21 of the Act.

4 These proceedings were commenced by an application for determination filed in the Compensation Court of New South Wales on 21 November 2000. That application provides scant, if any, particulars. The date of injury was said to be between 2 July 1973 and 19 March 1997. The 2 July 1973 was when the plaintiff was attested as a probationary constable of police. The 19 March 1997 was the date of his resignation. The application asked “How did the injury occur”. The following material was provided:

“As a consequence of the stress placed on the Applicant during the course of his employment”.

5 An amended application for determination was filed on 1 March 2001. The only amendments made by that application were to insert the correct certified infirmity and the correct date of the decision under appeal.

6 On 22 January 2003, the plaintiff’s solicitors provided certain particulars to the solicitor for the defendant.

7 The particulars delivered are not particularly illuminating because the request that had been made by the solicitor for the defendant was not well crafted. Essentially what was relied upon by the plaintiff was the investigation of all complaints relating to criminal activities, the apprehension and charging of offenders, and administrative police work associated with those two tasks, that is, basically the type of work the plaintiff did as a police officer.

8 Elliptically there was reference to a criminal charge that had been made against the plaintiff. Paragraph 3(e)(iii) said:

“That the police service knowing the applicant was a police officer who provided information of a criminal activity to a fellow police officer allowed such information to become so mixed that the applicant became an accused thereby, aggravating his pre-existing psychological conditions”.

9 Further particulars were provided on 28 April 2003 by the plaintiff’s solicitors in answer to a further request for particulars, but again they are not particularly illuminating, for exactly the same reason.

10 Further particulars delivered on 6 May 2003 essentially repeat the earlier allegations.

11 Particulars of claim in accordance with the then rules of the Compensation Court were filed on 11 July 2003. They refer to a large number of incidents that occurred to the plaintiff in the course of his police duty. The first of them is the suicide of a 14-year-old girl in 1974. The next is attending upon the suicide of a young male in 1975. The third is a situation which occurred in the mid 1970s at the White Bay Hotel where the plaintiff was acting undercover to try to ascertain who was selling stolen goods. The fourth allegation was of an event at the Bathurst Races on 25 March 1978. The fifth matter was an assault upon the plaintiff on 24 October 1979 when he was working at Redfern Detectives and was assaulted by a group of Aborigines. The next matter relied upon was an assault at a rugby league match in 1980. The next matter relied upon was the plaintiff’s part in the investigation of what has become known as the Milperra Massacre or the Milperra Father’s Day Massacre.

12 The next event relied upon was a needle stick injury in either 1985 or 1986. The next incident relied upon was an assault by an Islander in March 1986. There were then general allegations of investigating rapes and in particular, one rape in 1982 or 1983 of a 14-year old girl, the daughter of a friend of the plaintiff.

13 There was then a general allegation of attending murder scenes which were extremely stressful and in particular, the murder of a Mr Joe Borg in either 1974 or 1975.

14 The final matter given in those particulars was this:

“On 24 August-8 September the Applicant went off on stress leave. The anxiety, stress, depression, lack of counselling resort to drinking alcohol had built up to a point such that the Applicant felt rejected by the Police Service. It was during this period and prior that the Applicant had received certain information in the course of his duties concerning Henry Charles Landini which was imparted to another officer and ultimately led to his arrest and charging on 31 December 1990.”

15 Amended particulars of claim were filed in this court on 26 March 2004. They list between paragraphs 4 and 25 incidents which were alleged to cause “trauma and stress”.

16 Paragraphs 25 to 28 of those particulars are in the following terms:

“25. On 31 December 1990 the Applicant was arrested by internal affairs officers and charged with conspiracy to cultivate prohibited plant, offer bribe and conspiracy to cultivate commercial quantity of prohibited drug. He was then suspended from duty.

26. Following his being charged, the Applicant was detained in custody for about one month during which time he suffered severe emotional and psychological trauma.

27. A search warrant was executed upon the Applicant at his home and his house was searched. This had an adverse effect upon the Applicant and his family causing him to feel humiliation and shame.

28. The Applicant suffered adverse publicity in the media generated by his being charged and suffered anxiety as a result of such publicity as affecting his reputation and that of his family.”

17 Paragraphs 29 to 34 essentially set out the aftermath of the plaintiff’s being charged and arrested.

18 At the commencement of the hearing, the plaintiff was relying on the amended particulars of claim filed on 26 March 2004.

19 On the morning of 7 June 2005, after nine days of hearing, the amended particulars were further amended. At the same time, a concession was made. The concession and amendments are shown in exhibit N.

20 The plaintiff conceded that the certified infirmity was not due to his being hurt on duty in respect of either the facts and matters alleged in paragraphs 4 to 24 and 31 and 33 of the amended particulars or by any incident or assault involving Senior Sergeant O’Connor or any male offender on 15 January 1990 or any subsequent investigation thereof.

21 However the plaintiff maintained that his conversations with one Robert McDougall, Bill Treacy and Rod Moore and the plaintiff’s resultant arrest and exposure to the criminal justice process caused compensable injury in that the plaintiff was thereby “hurt on duty”.

22 On the nineteenth day of the hearing the plaintiff made a further concession which has been marked exhibit W. In that concession, the plaintiff admitted that the decision by the Commissioner of Police and his Delegate to arrest and charge the plaintiff was made in good faith and the due exercise of the duties and powers of the New South Wales Police Service on the evidence available to the Commissioner of Police and his Delegate. Further, the plaintiff admitted that such decision did not involve any improper or illegal conduct or conspiracy by the Commissioner of Police or his Delegate. Subsequently the plaintiff conceded that that admission extended to the role played in the arrest and charging of the plaintiff on 31 December 1990 by then Detective Inspector Schuberg and Detective Inspector Smith.

23 Accordingly, the remaining issue before me, from the plaintiff’s point of view, is an allegation that the arrest and charging of the plaintiff on 31 December 1990 and conduct that led to that arrest and charging were the cause of his suffering the certified infirmity and that the suffering of that infirmity arose out of the plaintiff’s employment or duty. It is not alleged in these proceedings that the arrest and charging arose in the course of the plaintiff’s service or duty. The plaintiff relies on a causal relationship between his service or duty and his arrest and charging.

24 The defendant has filed four different answers. There was one filed on 5 October 2001, another filed on 28 July 2003, another filed on 6 May 2004 and a final amended answer filed on 11 May 2004 which is the document upon which the defendant relies. The first part of the answer denies that the plaintiff sustained any injury in the course of his duties or employment with the New South Wales police service and that the certified infirmity was not due to any such injury. Particulars have been provided although, strictly speaking, there is no need to provide particulars of a traverse. However, the defendant specifically provides particulars about an event on 15 January 1990 when the defendant alleged the plaintiff went with Senior Sergeant O’Connor to the Five Dock Hotel where an altercation occurred between the plaintiff and Senior Sergeant O’Connor.

25 The next “particular” provided was an allegation of the plaintiff’s being involved in a motor car accident on 23 August 1990 which caused him to be summoned to the Campbelltown Local Court on a charge of driving with a high range prescribed concentration of alcohol.

26 The next “particular” deals with the circumstances leading to the plaintiff’s being arrested and charged and subsequently being served with an order under section 181D of the Police Act 1990 and then an application in the Supreme Court to set aside such order. The next substantive plea in the answer is an allegation of serious and wilful misconduct. Six particulars are provided, essentially the particulars numbered between three and six relate to the circumstances of the plaintiff’s arrest and charging. The fourth paragraph raises a defence under section 11A of the Workers Compensation Act 1987 but that plea is bad in law because the only events relied upon occurred in 1990 and section 11A was not then in force. The final allegation in the answer raises a defence under section 9A of the Workers Compensation Act 1987 but again that allegation is bad in law because section 9A was not in force at the time of the events in 1990.

27 The essential issue that I have to determine can be expressed in a number of ways. It is whether the certified infirmity was caused by the plaintiff’s being “hurt on duty”. That term is defined in the Act as meaning injured in such circumstances as were the plaintiff a worker within the meaning of the Workers Compensation Act he would be entitled to compensation under that Act. Essentially that becomes whether the certified infirmity resulted from injury arising out of or in the course of the plaintiff’s employment. Since the plaintiff does not rely on a temporal relationship between the certified infirmity and his service or duty, the issue is whether the certified infirmity has resulted from an injury arising out of the plaintiff’s employment. Essentially the plaintiff’s case is whether the certified infirmity was caused by the arrest, charging, and period in Long Bay Gaol when the plaintiff was bail refused and a subsequent lengthy committal hearing at which the plaintiff was discharged, the filing of an ex officio indictment by the Director of Public Prosecutions and then a lengthy trial in this Court in the exercise of its criminal jurisdiction before his Honour Judge Gibson and a jury, which led to the plaintiff’s acquittal, caused the certified infirmity and if so, whether it is related to the plaintiff’s duty or service.

28 Essentially, there is no medical argument in this case. The plaintiff relies on an opinion of Dr Strum and the defendant relies on an opinion of Dr Champion that the arrest and charging and the sequelae of the arrest and charging were the cause of the plaintiff’s psychiatric condition. Indeed those gentlemen accept that the occurrence of post-traumatic stress disorder was caused by the circumstances of the plaintiff’s being incarcerated in Long Bay Gaol. In her oral evidence before me, Dr Wendy Walker agreed that such could well be the case. Policemen have an overwhelming fear of being incarcerated in a place such as Long Bay Gaol where it becomes known that the policeman is in fact a policeman and where the police officer may come into contact with those that he himself has arrested or charged or given evidence against and who are in gaol because of the efforts of that police officer. That is vividly displayed in the plaintiff’s evidence before me and really needs no further comment.

29 As I said there is no real medical issue despite a thesis of Dr Wendy Walker. Her opinion expressed in her report was that the plaintiff had the certified infirmities prior to the events with which I am currently concerned. She had a large number of conferences with the plaintiff and took very detailed histories about every noteworthy event that occurred to the plaintiff in the course of his police duty between 1973 and 1990 and subsequently. Her thesis is that the development of post-traumatic stress disorder, in particular, was the result of the cumulative event of the plaintiff’s involvement with horrifying scenes, frightening events, assaults with blood and gore, so to speak, throughout his service but she conceded that the events with which I am concerned, certainly aggravated or made worse the preceding condition. Dr Walker’s thesis is based on a theory which is not unanimously accepted by members of the medical profession. Indeed it was not an opinion that Dr Champion would adhere to because, in his view, exposure to stressors over a period of time causes the process of desensitisation which inures those who experience, for example, blood and gore, autopsies, dead bodies et cetera, to take that as a normal incident of service. It is not necessary for me to consider the view of Dr Walker any further because her evidence is not supported by the evidence of the plaintiff himself who admitted that he was able to function as normally as he could as a police officer up until the time of his arrest.

30 The plaintiff had commenced his case based on all the events that occurred to him over his period in the New South Wales Police Force but in light of how the evidence was coming out, the concession made by learned senior counsel for the plaintiff on 7 June 2005 was very properly made. Again to repeat the issue, it is essentially whether the circumstances leading to the plaintiff’s arrest and charging and all that followed, arose out of his employment, service or duty as a police officer and that requires a detailed consideration of events between August and December 1990. I shall not immediately turn to that inquiry. I should like beforehand to deal with a number of other matters.

31 I must firstly advert to the corpus of the evidence before me. Today is the twenty-ninth day of the hearing of this matter. The hearing commenced on 6 December 2004 and has gone over three different sessions, one in late 2004, one in the middle of 2005, when an adjournment was sought by the plaintiff and granted, and then for four weeks commencing on 31 July 2006. There are currently available to me one thousand one hundred and seventy-one pages of transcript, although two days of submissions have not yet been transcribed or if they have been, the transcripts are not currently available to me. In addition to that, there are thousands of pages of documentary evidence. Early in the hearing the defendant tendered eighteen lever arch binders containing 4057 pages of documents. Objection was taken to a large number of those documents and dealing with the objections took a number of days. However, the remaining documents are still contained in the eighteen lever arch binders and most of them are still substantially full. Since the tender of those documents, three further lever arch binders of documents have been tendered and loose exhibits would fill another lever arch binder. There are accordingly, some twenty-two lever arch binders of documents in evidence. In addition to the oral submissions, which lasted four days, I have been assisted with one hundred and ninety-five pages of written submissions.

32 The evidence is vast and some of it only of remote relevance. Partly that is explicable by the fact that when the case started, the issues were much, much wider than the discrete issue with which I now must deal. I am dealing with this matter by way of an ex-tempore judgment because to reserve the judgment would require me to have six to eight weeks of free time available without any other professional or personal commitments which would be a well-nigh impossible task.

33 Before I turn to a consideration of events between August and December 1990, I will deal with three separate issues. The first is to recount a chronology of events in order to put the matter in context, after that I shall deal with two observations of moment concerning credibility and reliability of the evidence before me.

34 The plaintiff was born on 1 May 1948. He was born in Germany to Ukrainian parents who no doubt found themselves in Germany because of massive displacement following World War II. The plaintiff is currently fifty-eight years of age. At the relevant time, that is in the second half of 1990, he was forty-two years of age.

35 The plaintiff migrated to Australia in 1949 with his family. He attended Merrylands Primary School and Merrylands High School. One of his fellow school boys at those schools, was Mr William Alfred Treacy known as Bill Treacy. The plaintiff left High School with the Leaving Certificate in 1964. He then obtained work with the ANZ Bank as a clerk. From 1965 to 1968 he was employed in the Commonwealth Public Service in the Department of Customs and Excise. He then went to Wagga Wagga Teacher’s College, I infer, for one year where he enjoyed the social life but appears to have been struggling with his studies. Between 1969 and 1971 the plaintiff performed National Service. In the army he became a physical training instructor. All physical training personnel in the Army are assigned to the Artillery. The plaintiff reached the rank of Bombardier. Essentially the plaintiff worked, training those who were to go to serve in the Vietnam War. At the completion of the plaintiff’s National Service, he recommenced his Teacher’s College studies but this time at a campus at Lindfield. He did not complete those studies, electing to join the police force instead.

36 On 21 May 1973, the plaintiff commenced training at the Police Academy at Redfern. On 2 July 1973, as I have already mentioned, he was attested as a probationary constable of police. He was then twenty-five years of age. His initial service was at Redfern police station. He was attested as a police constable on 2 July 1974. He then went to Blacktown Police Station where he performed general duties for four years. On 20 May 1977, the plaintiff married his wife Vera. The plaintiff and his wife have two daughters, Natalie and Katherine. At the time of the plaintiff’s arrest, Natalie was ten and Katherine was six. One can understand that the plaintiff’s arrest and charging and the aftermath would have had a devastating effect, not only on the plaintiff’s wife, but in particular, upon his children.

37 On 6 December 1977, the plaintiff commenced plainclothes work with Number 21 Special Squad. On 29 August 1978 he became a Constable First Class. In 1980, he undertook a detective’s course, and in that year was appointed to the Campbelltown detectives. In March 1983 he was transferred to the Liverpool detectives. On 14 April 1983, he was appointed to the Armed Hold-up Squad at Penrith. On 8 April 1984, he was transferred to the Criminal Investigation Bureau in Sydney. However, things did not go well for the plaintiff when he was working in the CIB. On 16 December 1984 he was transferred to General Duties work, that is work in uniform, at the Burwood police station. The plaintiff was to remain attached to the Burwood patrol until 1990. Burwood has a substation at Five Dock and it would appear that the plaintiff performed a fair amount of his work at the Five Dock police station. For one month only in his period at Burwood, the plaintiff had a secondment to work for the Ashfield detectives. In his affidavit, exhibit B, the plaintiff said this in relation to his transfer from detective’s work to general duties uniformed work:

“Upon my return [from the Milperra massacre taskforce to the CIB], I was under the supervision of Sergeant Second Class Graham Frazer with whom I ended up having a difference of opinion. I believe it was more of a personality clash than anything else, and this resulted in my being transferred to uniform duties at Burwood police station. I became aware at this stage, that my career as a Detective would be finished unless there was a change in the hierarchy.”

38 From the evidence before me it would appear that the clash with his superior in the CIB involved an allegation of the plaintiff’s taking cash money about which there was a dispute. The plaintiff maintained that his ambition after being transferred back to general duties at Burwood was to again seek to become a detective and indeed, to become a leader of a group of detectives, either at some patrol or command of some special force or squad.

39 On 11 October 1988, the plaintiff was promoted to the rank of Sergeant of police. On 15 January 1990, the plaintiff was assaulted. He had commenced duty that day at 3pm, that is an afternoon shift. At some time around at 6pm or 7pm, or sometime in between, the plaintiff took off his appointments and his police shirt and donned a red polo shirt and proceeded to go to the Five Dock Hotel. He met there with Senior Sergeant O’Connor. At the time Senior Sergeant O’Connor was the highest ranking officer at the Five Dock police station, that is he was the highest ranking police officer on that shift. The plaintiff was the station sergeant so he was the second highest ranked police officer on that shift. It appears that the plaintiff and Senior Sergeant Smith then proceeded to drink alcohol for either three or four hours until approximately ten o’clock. The plaintiff alleges that as he was walking back from the hotel to the police station, he was assaulted by an unknown Islander without any provocation and for no ostensible reason. This person is alleged to have given the plaintiff a king-hit for no apparent reason at all while he was walking the short distance between the hotel and the police station. Subsequently it emerged that Senior Sergeant O’Connor admitted to his immediate superior that he had assaulted the plaintiff but he then retracted that admission. Mr Holovinsky maintains to this day that it was the unknown Islander who assaulted him. I am unable in this matter to make a finding that it was Senior Sergeant O’Connor. However, what is clear is that the plaintiff, whilst he was supposed to be on duty and in charge at the police station, was drinking at the hotel for three or four hours, schooners of beer.

40 The plaintiff admitted that he caused to be made a false entry in the occurrence pad of the police station and the plaintiff admitted to me that he lied about these matters to a superior. The plaintiff made a formal statement about the assault upon him on 17 January 1990. Paragraph 7 of that statement is this:

“Just prior to 10pm I decided to go and buy some cigarettes. I usually smoke a pipe but on this occasion I wanted to buy some cigarettes. I knew that the shops were closed and rather than enter the Five Dock Hotel in uniform, and one out [sic], I put on a red golf shirt which I had worn to work. I then walked down to the hotel and I saw the barmaid Rose. I also saw the manager, Mr Jeff Brown and I said ‘hello’. I got some change for the cigarette machine and just at this time Senior Sergeant O’Connor walked in wearing a black t-shirt. He suggested to me that I was drinking on duty. I emphatically denied this allegation.”

The first paragraph of that statement contains a lie and the second last and the last sentences contain a lie because if Senior Sergeant O’Connor did ask the plaintiff whether he was drinking on duty and he emphatically denied the allegation, the allegation was, in fact, correct. The plaintiff now admits he had been drinking in the hotel for three or four hours. In the next paragraph of his statement the plaintiff says that he walked over to the cigarette machine and purchased a packet of cigarettes from the machine then he walked down the stairs and out onto the street and that Sergeant O’Connor was in his company. They parted at one place and after the plaintiff had left the company of Senior Sergeant O’Connor, the plaintiff was approached by the person of Islander appearance who committed the assault upon him. That statement was witnessed by Inspector Braid. Inspector Braid then asked the plaintiff two questions which were typed onto the foot of the statement and answered and then witnessed by both Inspector Braid and signed by the plaintiff. The questions and answers are:

“Q1. Did you while at the hotel consume any intoxicating liquor?
A. No.

Q2. Did you at any time during your shift consume any intoxicating liquor?
A. No.”

Both those statements are lies.

41 There was then an investigation that was conducted by Chief Inspector Lammiman. The Chief Inspector sought to interview the plaintiff on 11 March 1990 but the plaintiff exercised his right to remain silent. The investigation was to have certain consequences. The plaintiff in his evidence to me said that whilst at the Five Dock Hotel with Senior Sergeant O’Connor he consumed six schooners of beer. He maintained to me that he was not intoxicated at the time.

42 After the assault the plaintiff was taken by a police vehicle to the Concord Repatriation Hospital. An administration officer at that hospital was Mr Mark William Foster. He was on duty at the counter of the Casualty department of that hospital at about 10.35pm on 15 January 1990. He made a statement to a Chief Inspector Lammiman. In that statement Mr Foster said this:

“About 10.35pm a man came into the Casualty section whom I now know as Fred Holovinsky. At the time he was accompanied by two other Policemen who were all in uniform.

At the time he was very aggressive when he came to the Counter and claimed that he had been assaulted on duty, he was quite aggressive and demanded that he be seen immediately.

As it can be seen on this form 4, patients came in by ambulance suffering from chest pain between the hours of 23.50 and 0020 and they get priority. He discharged himself and left the hospital.

When I saw Mr Fred Holovinsky I smelt a quite reasonable strong smell of intoxicating liquor on his breath because when I was asking him his details, I could smell it then. His speech was slightly slurred, and he was aggressive.”

Inspector Lammiman also obtained a statement from the sister in charge of the Casualty section at the time, Sister Shirley Fawcett.

43 In her statement Sister Fawcett said this:

“At the time I saw him he was on his own. At the time he wanted to go to the toilet, however on medical grounds I wouldn’t let him so I requested that he urinate in a bottle. I then took him into a room and he used the bottle and I brought him back into the hallway so that I could observe him and he said to me, “if I can’t see a doctor immediately I’m going”. He was restless and very intoxicated. He was acting that way. I said, “would you wait for a minute until I get a doctor to get you to sign a release form”. Mr Holovinsky then signed the release form and left to go to the waiting room. I didn’t see him after that.

I formed the opinion that he had been drinking, I smelt a beery smell about him, by his actions and manner I felt that he had been drinking.”

There can be little doubt that Mr Holovinsky, the plaintiff, was drinking and that he was intoxicated. Clearly when he donned the red tee shirt to go to the hotel to the drinking session with Senior Sergeant O’Connor the plaintiff abandoned his employment. This was no authorised absence. When he was returning from the hotel he was not on duty because he had abandoned his employment.

44 To suggest that the injury he sustained in the assault arose out of or in the course of his employment is a nonsense, yet the plaintiff maintained that he was assaulted in the course of his duty and claimed hurt on duty benefits. They appear to have been paid to him.

45 On 6 April 1990 Chief Inspector Lammiman presented his report. He recommended that the plaintiff be charged with making a false report of a criminal offence at Five Dock on 15 January 1990. He recommended the plaintiff be charged with creating a public mischief at Five Dock on 15 January 1990 and he recommended a Departmental charge of misconduct be preferred against the plaintiff concerning his actions at the Five Dock Hotel on 15 January 1990. That proposal received the agreement of the Ombudsman.

46 Eventually the Commissioner of Police, through an Assistant Commissioner, decided not to proceed criminally against the plaintiff but sought advice as to whether a Departmental charge should be preferred. On 20 August 1990 a report was made to the Assistant Commissioner of Police for Professional Responsibility that the plaintiff be charged Departmentally. It would appear that word of that had flown around the police world.

47 On 22 August 1990 the plaintiff attended upon his general practitioner, Dr Guest, and told him that he was “feeling tense over an alleged police inquiry”. The quotation is from Dr Guest’s notes. Clearly the reason for the plaintiff’s presentation to Dr Guest was the impending charge or the then current investigation. The diagnosis made by Dr Guest was of an acute anxiety state. Eventually Dr Guest was to issue certificates to cover periods of absences from work between 22 August 1990 and 7 September 1990. The following day was a day on which the plaintiff had been certified as being unfit to work because of his acute anxiety state. He spent the morning of that day playing golf. The two, of course, are not inconsistent. Physical activity for those suffering a mental illness is often a desirable thing. It can distract the patient from the nervous stress.

48 However after the playing of golf the plaintiff to use the vernacular which I used in asking a question, spent too much time at the 19th hole. At approximately 5.50pm the plaintiff was involved in a motor vehicle accident when his car collided with the rear of another car which was turning right. The plaintiff made attempts to minimise his culpability for the occurrence of that collision but it clearly was his civil fault which caused the collision.

49 About 7.15pm on 23 August 1990 Sergeant Hynes of the Campbelltown Police Station was called to the radio room at that police station where he had a conversation over the radio with Constable Elliott who requested his attendance at the scene of the accident. When Sergeant Hynes arrived there he saw the plaintiff whom he had known for a number of years. Sergeant Hynes established that the plaintiff was the driver of the car in question. Sergeant Hynes asked Constable Elliott whether he had administered a roadside breath test to the plaintiff. Constable Elliott replied in the negative and said that is why he had caused Sergeant Hynes to be called. It is understandable that a junior police officer might not want to administer a roadside breath test to a senior police officer.

50 Sergeant Hynes report of 23 August 1990 contains this in paragraph 3:

“At the time that I first saw Sergeant Holovinsky he was on all fours and when I came closer to him I could smell liquor and when he got to his feet he was very unsteady on his feet. I could also see that his eyes were bloodshot and weepy.”

The roadside breath test was then administered and returned a reading of .280. A formal section 4E certificate determined a reading of .200. As a result of driving with that blood alcohol level the plaintiff was served with a summons to attend a Local Court. He did so. It would appear that he pleaded guilty to a charge of high range PCA and was fined $600 and disqualified for driving for six months. When that court appearance and penalty were imposed the evidence does not disclose.

51 The plaintiff’s certificates of unfitness issued by Dr Guest expired on 7 September 1990. On that day the plaintiff saw the police medical officer who certified that the plaintiff could return to full duties, noting that the plaintiff wished to return to work. However it is clear from the police medical officer’s notes that the police medical officer was concerned about the plaintiff’s alcohol intake which the police medical officer wished to review with the plaintiff’s general practitioner. At that interview with the police medical officer the plaintiff declined to see a psychologist for drug and alcohol counselling.

52 Some time in September 1990, it may have been on 8 September 1990, the plaintiff was transferred from Burwood Police Station to Newtown Police Station. The plaintiff appeared to me to believe that that was some form of punitive transfer but it is equally possible that it was to assist the plaintiff who could no longer drive a motor vehicle. Travelling between Campbelltown and Newtown is a direct route by rail whereas there is no direct route by rail from Burwood to Campbelltown as I understand it.

53 I am omitting from this chronology of events the pertinent events to which I must in due course turn. On 26 September 1990 at 10am the plaintiff was served with a Departmental charge. The charge was this:

“That on 15 January 1990, you were under the influence of intoxicating liquor whilst on duty.”

The charge could have been better worded. The charge could have been worded “that on 18 January 1990 you were under the influence of intoxicating liquor whilst rostered on duty”.

54 On 3 October 1990 the plaintiff wrote a response to the charge saying that he was not guilty of it and that he elected to have the matter heard and determined by the Police Tribunal of New South Wales. That Tribunal was of course, constituted by a Judge of this Court. The hearing of the charge before the Police Tribunal was eventually listed for hearing on 14 March 1991.

55 On 12 December 1990 the plaintiff went off work with a diagnosis of acute anxiety and depression. He was to remain absent from duty until 12 December 1990. It is difficult to determine the exact reason which caused the plaintiff to go off work at that time. The plaintiff was supposed to attend a police funeral but it would appear that he did not do so as he was “too ill” to do so.

56 As I have earlier indicated the plaintiff was arrested early in the morning of 31 December 1990. He was taken to the Campbelltown Police Station and was charged. He sought bail from the police but that was refused. He appeared before the Local Court at Campbelltown on that day. It would appear the court was constituted by the Registrar of the Court, no doubt a Chamber Magistrate or Justice of the Peace. Bail was refused because of the seriousness of the charge. Because it was New Year’s Eve the plaintiff could not be taken to a gaol. He remained in the cells at the Campbelltown Police Station until 2 January 1991. On that occasion he appeared before Mr Kearney SM. The plaintiff was represented by Mr John Marsden. Mr Kearney refused bail because of the seriousness of the offences charged.

57 Annexed to the plaintiff’s affidavit which is exhibit B is a press clipping from the Macarthur Advertiser. That refers to the plaintiff’s appearance before Mr Kearney SM on 2 January 1991. That reports that the learned Magistrate refused bail because of the seriousness of the allegations made. The newspaper article contains this quotation from the remarks of the learned Magistrate:

“This is not a backyard cultivation, this is a major illegal commercial venture in excess of $8 million.”

58 It appears from that press clipping that a co-accused William Alfred Tracy was also refused bail by the learned Magistrate and that there were three alleged co-conspirators who were to appear in the Bega Local Court. The press clipping is headed “Sergeant’s drug charge” and one can understand the distress that that would have caused the plaintiff and his family.

59 The plaintiff was taken to Long Bay Gaol. The plaintiff gave this evidence in chief when asked what happened when he arrived at Long Bay Gaol:

“I couldn’t believe that it had happened to me, I couldn’t believe that I’d be going to Long Bay Gaol. I was taken inside the gates into the reception area. They took my possessions. They took me over to a room where they gave me a pair of shorts that were ripped and this shirt that was five sizes too small, a pair of old sandshoes. They then marched me through to the protection section, up a set of stairs into a - as I was walking into the reception area I glanced around and the first thing I saw was Jimmy Safwan. Jimmy Safwan was a fellow in 1984 I’d arrested and charged with six or seven charges of armed robbery and attempted murder, who I knew to be extremely violent and bad criminal. I walked in straight past him, up the stairs, I opened a cell, they just told me to go in there. I tried the light, there was no light. There was a small gap in the cell, a little bit of moon coming through there. The basin that I had was broken. There was a mattress. I think the mattress - the legs were broken on the springs underneath that and I just closed the door.”

Further on the plaintiff said this:

“I was most anxious about my safety after seeing that Jimmy Safwan was the first name I saw there, I was concerned that it wouldn’t take long for the news to travel and that I was there and the following morning I was sure that everybody knew who I was and what I was because as they escorted me out of the area into another segregation area they had the prison riot squad there with their dogs giving me a guard of honour down the passageway to go through to the segregation area.”

The plaintiff also gave evidence in chief of being concerned about the food and drink that he was being served. He was frightened that he could be poisoned or for example spat into by other prisoners. At times when the plaintiff went to court he returned from court to find that his cell had been, to use the modern vernacular, “trashed”. He also told me that one of the prison guards drew a caricature of him sitting in a garden with “sixteen million” worth of marijuana plants and his tending the plants and put that picture in the plaintiff’s cell.

60 The plaintiff again appeared at the Campbelltown Local Court on 9 January 1991 before Mr Shepherd SM but remained bail refused. He appeared again at the Campbelltown Local Court on 16 January 1991 before Mr Kearney SM but was again bail refused. On 23 January 1991 Mr Armati SM at Central Local Court granted bail to the plaintiff. The plaintiff was eventually released on bail on either 25 or 26 January 1991. There are conflicting dates in the documents before me as to when the plaintiff was actually released. There was a requirement to put up a substantial surety which delayed the plaintiff’s being released on bail. Friends of the plaintiff offered as surety the title deeds to their home. It was a requirement of the plaintiff’s bail initially to report to the Campbelltown Police Station. It appears that at first that was daily, if not, almost daily, but the frequency of the need to report was subsequently altered. The plaintiff told me, and I can accept, that reporting to Campbelltown Police Station, a place where he had worked and at which he was well known, which was in the area in which he lived and was very close to his favourite watering hole, would be embarrassing.

61 On 14 March 1991 the departmental complaint concerning the plaintiff was before the then Chief Judge, his Honour Judge Staunton. The Police Service withdrew the complaint, no doubt because the plaintiff was facing much more serious charges which, if proven, would have a greater effect on the plaintiff’s police career that an allegation of drinking whilst he was supposed to be on duty. On 8 October 1991 the committal hearing began before Mr Heaghney SM at the Downing Centre Local Court. On 24 December 1992, over a year later, the learned Magistrate ruled that there was a prima facie case established against each defendant. There were essentially two counts against each defendant of conspiracy relating to the growing of a marijuana plantation on the South Coast of New South Wales. As I have already mentioned the street value of that crop was estimated to be $8.5 million dollars.

62 The case for the defence opened before the learned Magistrate on 28 July 1993. The plaintiff himself gave evidence between 17 and 19 August 1993. On 19 December 1993 the plaintiff and Mr Treacy were formally discharged by the learned Magistrate. I do know that all the alleged conspirators were discharged so it would appear that the other alleged conspirators were discharged at some other time. As far as the plaintiff was concerned there had been ninety-five sitting days over a period of some twenty-three weeks, and the committal went over a period of two years and some six weeks.

63 On 23 December 1993 the Magistrate awarded costs to the plaintiff against the Crown. The Magistrate made the same order in favour of Mr Treacy. The Director of Public Prosecutions appealed against those costs orders. On 1 February 1994 the appeal against the costs order made in favour of Mr Treacy was dismissed by his Honour Judge Johnston. As a result of his dismissing Mr Treacy’s appeal, the Director of Public Prosecutions withdrew the appeal against the costs order in favour of the plaintiff. On 9 February 1994 the plaintiff’s solicitors were, however, advised by letter from the Director of Public Prosecutions that an ex officio indictment was to be filed. On 16 March 1994 an ex officio indictment was filed.

64 The first two charges were laid against William Alfred Treacy, Wolodymyr Holovinsky, Mark Leonard Gravener, David John Ross, Scott Brian Williams and Harvey Raymond Jenkins. The first charge was that between 1 September 1990 and 28 December 1990 at Yowrie and other places in the state of New South Wales, they did conspire amongst themselves and divers others to cultivate a number of prohibited plants (namely, cannabis plants) not less than the large commercial quantity applicable to that prohibited plant. The second charge was in the alternative that between 1 September 1990 and 28 December 1990 at Yowrie in the state of New South Wales, they did knowingly take part in the cultivation in the number of prohibited plants (namely cannabis plants) not less than the large commercial quantity applicable to the prohibited plant. The indictment contained a further charge, but that charge was only against the plaintiff. It charged that between 28 September 1990 and 23 December 1990 at Campbelltown and other places in the state of New South Wales did bribe William Robert McDougall, a public officer (namely, a constable of police), in that he did corruptly offer money to the said Robert William McDougall in his official capacity and did maintain and increase that offer, in order to incline the said Robert William McDougall to act contrary to his duty as a constable of police in relation to the investigation of offences involving the cultivation of prohibited plants.

65 On 19 May 1994 the plaintiff was arraigned on that indictment and pleaded not guilty. The trial commenced before his Honour Judge Gibson and a jury on 8 May 1995. That trial finished on 29 November 1995 when the jury acquitted the plaintiff of all three charges against him and acquitted all the alleged co-conspirators of each charge against them.

66 On 29 January 1996 the plaintiff was reinstated to full duties, however he was never to return to work. He remained on sick leave. On 1 March 1996 the plaintiff made a claim for hurt on duty benefits. On 3 September 1996 the plaintiff applied for a medical discharge. He had then completed twenty-three years of service. Before there was any decision on the claim for hurt on duty benefits and the claim for medical discharge, the plaintiff was served on 22 January 1997 with a notice under s 181D of the Police Act 1990. On 10 February 1997 the defendant determined that the plaintiff’s absences from work since 29 January 1996 were not caused by his having been hurt on duty. On 13 March 1997 the plaintiff appeared before the Commissioner’s advisory panel. Six days later on 19 March 1997 the Commissioner issued an order under s 181D of the Police Act, effectively dismissing the plaintiff from his office of a sergeant of police. The plaintiff did nothing about that immediately.

67 In December 1997 the SAS Trustee Corporation, essentially the administrator of the Act, advised the plaintiff that it was unable to process his application for medical discharge whilst he was “dismissed”. On 23 July 1999, over 18 months later, the plaintiff made an application to the Supreme Court to quash the order under s 181D. That application was made by summons. That action in the Supreme Court was settled on 7 March 2000. Effectively the defendant, the Commissioner of Police, withdrew the order under s 181D on condition that the plaintiff submit his resignation with effect from 19 March 1997. The plaintiff tendered that resignation and accordingly the order under s 181D was withdrawn. On 27 September 2000 the Police Superannuation Advisory Committee made the determination which I outlined at the commencement of these reasons for judgment. On 9 October 2000 the Commissioner of Police made the determination which this appeal concerns. One can see from the chronology that I have just given that much has happened since the second half of 1990, the period during which I must be concerned about the compensability of the plaintiff’s certified infirmity.

68 The first of the two matters I should discuss before turning to a detailed consideration of events in the second half of 1990 concerns the reliability and trustworthiness of the plaintiff. In his evidence-in-chief to me the plaintiff told me that prior to 1979 he was “a very heavy drinker”. He told me that he would drink during work hours and after work. He was also asked his drinking habits in the period between 1979 and 1990. He told me he was drinking between fifteen and twenty schooners of beer a day. He told me that he was drinking beer during work hours and after working hours. The plaintiff was asked whether he made any attempts to improve his drinking habits after his absence from work during August and September 1990 and after he had been involved in the motor vehicle accident which led to the loss of his driver’s licence. The plaintiff said that he could not recall making any such attempt. In cross-examination the plaintiff admitted that his alcohol consumption had affected his faculties over his time as a serving police officer. He agreed that it affected his memory. He was asked some questions about evidence he had given at his criminal trial. He agreed that he had answered yes the question that by being a heavy drinker he would find it hard to recall discussions. He agreed that he had answered positively a question that drinking clouds memory as to things that happen when one is either drunk or half drunk. The plaintiff also agreed in his evidence before me that at no stage during his police career did he have any treatment for his alcohol dependency, and he agreed that his memory had been affected by his alcohol intake.

69 Later the plaintiff agreed that alcohol had been a large problem for him throughout his years in the police force, going back as far as 1973. He agreed that he would readily consume twenty to twenty-five schooners of beer a day. He agreed that there were times when he had a memory blackout. The following evidence was given on 14 December 2004 at p 259:

“Q. A memory blackout is when you wake up one morning and say - what did I do last night, I can’t remember?
A. I’ve had plenty of them.

Q. You had plenty of them?
A. Yes.”

70 It will be clear from my detailed discussion of events in 1990 that the plaintiff was clearly affected by alcohol on many occasions. Indeed one could almost say that the events of the second half of 1990 occurred in an alcoholic miasma. The fact that the plaintiff was often intoxicated and often had memory blackouts indicates that he would have very little accurate recall of events that were happening to him when he was drinking so heavily in the second half of 1990. The plaintiff’s alcohol consumption during late 1990 indicates that his evidence is likely to be unreliable, the subject of reconstruction. The plaintiff has clearly sought to minimise the effect of his alcohol intake in the past. For example in December 1979 the plaintiff admitted that he was a heavy drinker. In 1979 the plaintiff said that he was smoking approximately eighty cigarettes a day. On 19 December 1979 or shortly prior thereto, the plaintiff saw Dr Raymond Garrick, a consultant neurologist. That followed upon the plaintiff’s being assaulted on 24 October 1979 by Aborigines. The doctor took the usual history from Mr Holovinsky. The doctor recorded that the plaintiff smoked more than twenty cigarettes daily but drank alcohol only on social occasions. The plaintiff admitted lying to Dr Garrick. The plaintiff clearly lied to Inspector Braid and Chief Inspector Lammiman about drinking alcohol in January 1990.

71 I must also, when I consider the reliability of the plaintiff’s evidence, take into account how this case was conducted and how the evidence was progressing before the plaintiff made certain concessions. The plaintiff’s affidavit was sworn on 30 April 2004. In para 6 of that affidavit the plaintiff refers to the suicide of a fourteen year old girl who had hung herself in a tree. The plaintiff deposed to often having nightmares of her face appearing before him, and that those dreams or nightmares were continuing up until the present time. The plaintiff said in his affidavit “It was these types of stress related incidents that caused me to resort to drinking alcohol as an escape in which I found tended to relieve my stress somewhat”. That observation of the plaintiff is self serving. The only evidence about alcohol intake in this matter is from Dr Champion who points out that it is multi factorial and rather than being a reliever of stress it was in fact a precipitant of stress. The allegation of the need to take alcohol to relieve stress is one that I constantly hear when sitting in the Special Statutory Compensation List. However one must realise that many people find drinking pleasurable. It is patently clear when one goes to the events of 1990 that the plaintiff thought that drinking alcohol was a good thing and it was a marvellous thing if one could organise to have a good drinking session.

72 In the seventh paragraph of his affidavit, the plaintiff said that in about 1975 he recalled attending another suicide where a young male had hung himself on his front door. He said that that had even worse effect upon him than the earlier suicide of the fourteen year old girl. At that time the plaintiff said he was only ten years older than the man who had committed suicide, and that caused the plaintiff to remember the travails of his teenage years. The plaintiff then complained about having no counselling and that he had to “put up a brave front, being a policeman”. The plaintiff, in para 9 of his affidavit, refers to the events of the White Bay Hotel where he would meet up with prospective buyers of allegedly stolen goods at a hotel. The scheme was to detect those having goods in custody. The plaintiff gave evidence of becoming at one stage stranded from his backup. He said this in his affidavit:

“I became immediately aware that I was on my own, and there was no backup. I became extremely stressed and anxious as to my safety and kept walking. About the same time, the police backup vehicle arrived and arrested the offender. This had quite a serious effect upon me and I have vivid recollections of returning to Drummoyne Police Station and drinking quantities of alcohol in an effort to calm myself down”.

In para 10 of his affidavit the plaintiff said this:

“During my service at Blacktown I recall attending the location of the body of a murder victim (Joe Borg) at Doonside. At this time the body was in a state of severe decomposition. The stench was overbearing. I recall being violently ill at the scene and the memory of this picture remains with me to this day”.

73 The evidence establishes that the body of the deceased was in a garage which the plaintiff did not enter. The plaintiff got not closer to the building than twenty-five metres, although it may have been as far a distance as forty metres. The plaintiff did not see it at all. The plaintiff merely smelt the odour of the decaying body. However when the plaintiff saw Dr Wendy Walker there was a vivid description of this event where the plaintiff told the doctor of seeing the maggots emerging from the rotting corpse and the like. Clearly this is a matter of gross exaggeration. In para 13 of his affidavit the plaintiff records that on 24 October 1979 whilst walking to Redfern Railway Station after completing his shift, he was set upon by a group of Aborigines, severely beaten about the head and body and knocked unconscious. The plaintiff deposed that that caused him to become paranoid, “particularly with Aboriginals”. He then makes a complaint of not receiving support from the police or counselling and of receiving no emotional support. Of course it was that event that caused the plaintiff to see Dr Garrick. Again this whole event was given in an exaggerated form by the plaintiff at one stage with a fabulous, and I mean fabulous literally, description of what his fears were after that event.

74 In para 16 of his affidavit the plaintiff refers to the investigation of rapes. Again in his affidavit the plaintiff refers to suffering from numerous flashbacks to the events which he had to investigate which continued for some time. In para 17 the plaintiff refers to his part in investigating the Milperra Fathers Day Massacre. The final sentence of para 17 in the affidavit is this:

“Following my part in the investigation of the Father’s Day Massacre, I have had a number of dreams where Bikies would come into my home and take captive my wife and children. These dreams were a direct result of having taken part in that investigations”.

The plaintiff’s involvement in the investigation of the Milperra massacre was canvassed at some length in cross-examination. It became abundantly clear that the plaintiff was a “bit player”, if anything, in the investigation of that event. There was no direct threat made by anybody to the plaintiff. There were only general threats. The plaintiff was not involved in arresting anybody, merely in making inquiries and witnessing statements and the like. His role was a minor one, and if there were to be reprisals by members of a biker gang, he would be one of the least likely targets.

75 Paras 21 to 23 of the affidavit need to be considered. They are these:

“21. On the various occasions that I might attend a murder scene or other serious type of crime during part of my investigation, I found such investigations to be extremely stressful and I bottle up my emotions. This resulted in me not wanting to discuss such events with my wife for fear of upsetting her and I would resort to drinking alcohol to settle this anxiety and stress. During my years of service, I would constantly find myself attending the local hotel with other officers almost on a daily basis after the end of the shift and often during a shift. This was the only way I knew how to give vent to my emotions and feelings. At least you could talk to your buddies about case you were dealing with, particularly after a successful investigation of a serious matter.

22. During the later 1980s and throughout most of the 1990s, my wife would tell me about my restlessness during the night. She would say to me ‘You must have been having a nightmare through the night, you were roaring out loud and your body was trembling’. I recall that on many occasions I have awoken in a lather of sweat only to realise that I was having a nightmare. These nightmares still occur to the present day.

23. During the entire course of employment with the New South Wales Police, I was never afforded any counselling following my involvement in traumatic events and incidents which involved high stress levels such as those recounted above. As a result, the problems I was suffering from, were not being addressed and were continually building up within me like a volcano.”

76 As to the symptoms noticed by the plaintiff’s wife, they may of course be applicable to alcohol withdrawal. It is clear to me that the plaintiff asks me to believe that his alcohol consumption, his alcohol habit, was caused by his reaction to his work, but that is completely inconsistent with the opinion of Dr Champion, and of course the plaintiff’s substance abuse or alcoholism is not a certified infirmity. However, it appears to me that the plaintiff was prepared, in this affidavit, to exaggerate excessively the effects of events upon him when it is clear that the only complaints he initially made to medical practitioners prior to seeing Dr Walker all arose from his being arrested and charged on 31 December 1990.

77 Paragraphs 25 and 26 of the affidavit are these:

“On 22 August 1990, I attended once again upon Dr Phillip Guest in respect of insomnia, diarrhoea and feeling tense. Dr Guest prescribed an anti-depressant, Prothiaden, and referred me to Mr Glancey for counselling.

26. On 23 August 1990, while stationed at Newtown police station I went off work suffering from stress. The anxiety, stress, depression, lack of counselling and resort to suffering drinking alcohol had built up to a point such that I felt rejected by the Police Service.”

78 What the plaintiff failed to tell me in those paragraphs were firstly that on 22 August 1990, when he saw Dr Guest, his complaint was about the pending department inquiry which would lead to the Departmental charge. That Departmental charge had its basis in facts which had nothing to do with the plaintiff’s police service. I may have expressed myself elliptically. The Departmental charge arose out of an allegation the plaintiff was drinking whilst on duty. Clearly he was drinking when he was supposed to be on duty but that drinking was not in the course of the execution of the duties of his office. It was while he was supposed to be on duty, not whilst he was actually doing his duty. If the plaintiff was upset about the Departmental charge it had nothing to do with his work.

79 In paragraph 26 the plaintiff coyly omits to tell me that on 23 August 1990 he played golf, went to the clubhouse, consumed an immense amount of alcohol and then was involved in a motor vehicle accident which resulted in his being charged and convicted of a high range PCA offence.

80 I must take into account, in considering the plaintiff’s credibility, the lies which he told to his superiors about 15 January 1990. The plaintiff admitted in his evidence that he was prepared to lie, to use his words, “to cover his arse”. A consideration of the plaintiff’s original “stress claim” clearly indicates to me that he was prepared to exaggerate and invent.

81 The plaintiff also admitted in cross-examination that he had “bent the rules” over the years of his police service. He admitted, for example, that he would routinely, when he was a detective, make entries in his duty book which were a routine entry of his having done things which he would not do. The plaintiff was not only prepared to bend the rules, he was also prepared to make false entries.

82 The plaintiff had commenced to work for a licensed premises about which I shall have much to say in either 1985 or 1986. He worked in those premises as a barman on Sundays. The plaintiff had no written permission to undertake such secondary employment. The plaintiff knew that he was required to have written permission to perform that work. There are, in evidence, numerous documents relating to secondary employment. Working as a barman in an hotel was permitted provided that permission was obtained and provided the establishment or licensed premises was suitable as far as the Commissioner of Police was concerned. The plaintiff worked from 1985 or 1986 to 1990 in those licensed premises without written permission and therefore in breach of the Police Rules at the time. The plaintiff’s attitude to not obtaining the permission was blasé. He said that everyone knew that he was working there, even his superiors, but that of course does not excuse the plaintiff from obtaining the necessary permission.

83 The inferences I draw from these considerations are these. Firstly, that the plaintiff’s memory for any detail of events the second half of 1990 is likely to be extremely poor. Secondly, the plaintiff is liable to exaggerate and embellish for his own purposes, and if necessary to tell lies to further his own position or achieve his own ends.

84 That leads me to a further consideration on this issue. The plaintiff made no written records whatever of what he was doing or saying in August to December in 1990. He has tendered no written documents about the events into which I must inquire.

85 The committal proceedings commenced on 8 December 1991 and on 24 December 1992 the learned magistrate found a prima facie case. The plaintiff then knew what the defendant’s case was on the criminal charges and had time to consider his reply to the Prosecution case. The plaintiff did not have to outline his defence until the defence case started on 28 July 1993 and in particular until he commenced giving evidence on 17 August 1993. The plaintiff had a long time to prepare his story to answer the Prosecution case. I must be acutely aware that the plaintiff may have reconstructed events to suit the Prosecution case or alternatively crafted a case in answer to the Prosecution case which might exculpate him.

86 The plaintiff, of course, would probably have had an even longer period of time than the time taken during the committal hearing to consider the documentary case prepared by the police in the prosecution of him which is directly referable to the matters with which I have to deal. I therefore approach the plaintiff’s evidence with great caution.

87 Before I turn to the next area I shall take an adjournment.

88 I turn now to the second consideration about the reliability of the evidence for me. The principal witness called against the plaintiff in the criminal proceedings was Detective Senior Constable Robert McDougall. It was he whom the plaintiff was alleged to have attempted to bribe. It is clear that Detective Senior Constable McDougall, to whom I shall refer hereafter to merely as McDougall, without any discourtesy meant to him, was cross-examined at some length, both at the committal and at the trial. I have carefully read the evidence given by Mr McDougall at the trial. He was certainly cross-examined repeatedly and thoroughly and aggressively by Mr Somosi of counsel who was then appearing for the plaintiff and Treacy.

89 Various attempts were made by the defendant to have McDougall attend court on a subpoena. Eventually I made an order requiring him to attend before me on Monday 7 August 2006 or to show cause why he should not be dealt with for contempt. On the morning of 7 August 2006 Mr McDougall appeared and made an application to be excused from giving evidence. I made a ruling on the morning of 7 August 2006 which has been transcribed. Having regard to what had been put before me by Mr McDougall I had to consider the matters raised in Chapter 2 Division 1 of the Evidence Act 1995. I ruled that Mr McDougall was compellable. However, I then drew the attention of Mr McDougall and counsel and the plaintiff to the provisions of s 41 of the Evidence Act which gives me power to disallow questions which were unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. I also can take into account under s 41 any mental, intellectual or physical disability which the witness may be subject to.

90 After I gave that judgment the transcript records Mr McDougall as saying this:

“Your Honour, with all due respect I appreciate your considerations here today, but I ain’t giving evidence, in fact I’m going out the door right now. I refuse to hurt myself because of a grub like that and grubs like these two.”

91 When McDougall said “a grub like that” he gestured towards the plaintiff. When he said “grubs like these two” he gestured at senior counsel for the plaintiff and senior counsel for the defendant. He promptly left the Court.

92 Eventually, an application was made by the plaintiff for me to issue a warrant for Mr McDougall’s arrest and for him to show cause why he should not be prosecuted for contempt. I refused those applications. It was clear that Mr McDougall was not the plaintiff’s witness and the only person who is entitled to insist on the enforcement of the subpoena was the defendant who had served the subpoena upon the witness and who wished to call him.

93 In my view, the Court was not held in contempt by Mr McDougall, albeit that counsel were insulted, as was the plaintiff. I allowed time for the defendant to obtain instructions. The ruling I made on the application by the plaintiff concerning Mr McDougall was made on 8 August 2006 and has been transcribed.

94 On 14 August 2006 the defendant made an application for admission of documents made by McDougall in the process of his investigation of an approach that had been made to him by the plaintiff to be admitted into evidence under either s 63 or s 64 of the Evidence Act. I considered that application and ruled that the documents were admissible under s 64(2) of the Evidence Act, noting the consent of the defendant to the tender of the transcripts of evidence given by McDougall in the criminal proceedings if the plaintiff wished to do so. All such documents have been put into evidence. I do not wish, at this stage, to rehearse all the matters I considered in my ruling on 14 August 2006. I shall merely seek to summarise it so that anyone reading these reasons for judgment when they have been transcribed knows what occurred.

95 McDougall himself made applications for sick leave and hurt on duty benefits because of his involvement in the investigation of the plaintiff and his giving evidence in the prosecution of the plaintiff. Eventually he was medically discharged for inter alia a psychiatric condition which was in part, at least, referable to the trauma which he says he experienced in investigating the plaintiff and in giving evidence in the prosecution. It also emerged that Mr McDougall himself had his own problems with stress and in much of the period in later 1990 with which I am concerned he was absent from duty on sick report and was drinking excessive amounts of alcohol. McDougall himself was cross-examined about that in the criminal proceedings. In re-examination McDougall gave this evidence:

“Q. You were also asked a number of questions concerning your absences from work on sick report between 2 November and sometime in December, do you remember that?
A. Yes.

Q. What was your reason for going on sick report?
A. A decision was made by the superintendent who was the officer in charge of the Illawarra region, that I stay on sick report and concentrate solely on this matter and not be tired up with other everyday duties.

Q. Were you sick during that period?
A. No, I wasn’t sick. I had been recalled to duty on a number of occasions and was being paid overtime, so I wasn’t sick.”

96 Mr Somosi was granted leave to further cross-examine McDougall. In that further cross-examination McDougall admitted to answering a number of questions on this very issue at the committal proceedings. At that time McDougall had referred to stress that was brought on him by the inquiry into the plaintiff’s activities and also stress that was being applied to him by the Police Service to engage in the investigation of the plaintiff. Mr McDougall also confirmed evidence he had given at committal about seeing a psychologist, Mr Glancey, during the period that he was on sick report. He was then asked to explain what he meant, when he said that he was not sick in re-examination. This evidence was given:

“Q. You weren’t sick?
A. Stress is not something you lay on your back kicking your legs or wear your wife’s clothes around the house. It is something in the back of your mind which sometimes effects you more than others. Obviously I was suffering from stress but through Mr Glancey and the relaxation tapes I was in control of it.

Q. You weren’t sick?
A. I was on sick report and at times I was sick, I admit that, but stress is a thing that is easily controlled.”

97 McDougall was then asked about claiming Workcover benefits. It would appear that Mr Somosi was unaware of the provisions of the Police Regulation (Superannuation) Act 1906 and the hurt on duty scheme. However, Mr McDougall admitted to filling in the appropriate forms to claim benefits in respect of his absences from work. In other words, it was offered essentially by Mr McDougall that he was not really sick when he was saying that he was. However, I maintain the reasons I gave on the defendant’s application for the admission of McDougall’s documents under the Evidence Act. McDougall was sick. He was obtaining treatment. He was drinking excessive amounts of alcohol and at times his workmates said that he was irrational.

98 The end result is, that Mr McDougall has not given evidence before me and I have not been able to form any opinion of his evidence based on his character or demeanour. Furthermore, there are a number of inconsistencies, if not glaring inconsistencies in his evidence which must cast doubt on his reliability as a witness.

99 The weight which I can give to Mr McDougall’s evidence must be attenuated by the fact that he bluntly refused to give evidence before me and did not give evidence. He perceived that it would cause him a further outbreak of illness. He had a recurrent major depressive illness, and that might well have been the case. However, whether it were the case could only be ascertained if he tried to give evidence, which he did not wish to do. The weight to be given to his evidence must be further attenuated by his trying to establish in re-examination the fact that he was not sick when I have found him to have been sick.

100 The only judicial officer to have seen and heard Mr McDougall giving evidence and to have published reasons about Mr McDougall’s evidence is the learned magistrate Mr Heaghney. The appeal on the costs order to his Honour Judge Johnston was a re-hearing on paper. The credibility of McDougall at the trial was a matter for the jury to determine and juries do not give reasons. Equally, there may have been some, perhaps, pertinent remarks about that issue by the learned trial judge, Judge Gibson, but his summing up to the jury has not been put before me.

101 In considering McDougall’s evidence, I must be guided to a large extent by the observations of Mr Heaghney. For example, on page 4 of his reasons Mr Heaghney said this:

“A careful perusal of the transcripts of the recorded conversations and a careful listening to the recordings themselves, together with a consideration of certain other matters have led me to conclude that the version of the September meeting given by Detective Senior Constable McDougall is scarcely believable.”

102 On page 8 of his reasons for judgment the learned magistrate said this:

“I have already said something in one context about the conversation at the Burwood RSL of 22 November 1990 in a more general vein the defendant McDougall’s evidence that the versions of these conversations which he has given in his evidence are pretty much word for word is plainly ridiculous especially in respect of this conversation which on his own evidence was a long one. Because these unrecorded conversations as opposed [deposed] to by Senior Constable McDougall do not sit well with the recorded conversations and because the omission from them of material to be found in a number of police information and surveillance reports they must be regarded in my view as having little reliability.”

103 The weight I can give to the evidence in documentary form from McDougall must be diminished in light of his refusal to undergo cross-examination before me and must carry little weight or reduced weight because I have not had an opportunity to observe him.

104 Of these two considerations of course the adverse inferences I draw about the reliability of the plaintiff favours the defendant’s case and equally the adverse inferences to be drawn from Mr McDougall’s evidence favours the plaintiff’s case. I must approach all the evidence cautiously and carefully and in the end result apply commonsense.

105 I turn now to a detailed consideration of the events of 1990. I first need to describe a few things. The first are two loci. The first is licensed premises at Campbelltown. These licensed premises are opposite the Campbelltown courthouse. There once stood on that site an hotel known as Lack’s Hotel. That building appears to have been demolished and replaced by a new building which houses, amongst other things, a tavern which I understands to have the formal name of the Court Tavern. This was often referred to as the new Court Tavern and sometimes that has been transcribed as the New Court Tavern as if the novelty of the establishment was a part of its name. I suspect that it obtained the moniker “new” because it replaced the original hotel. There are references in the transcripts to both new Court Tavern, New Court Tavern, Lack’s Hotel, and Lack’s and “the Pub”. All those are in general references to what I will merely describe as the Court Tavern or the Tavern.

106 The Tavern was described by McDougall in his evidence at trial as being a “policemen’s meeting place”. The Tavern is the place at which Mr Holovinsky worked as a barman on Sunday afternoons since 1985 and 1986. When the plaintiff was released on bail he was stood down from duty but paid his basic salary of office. In order to cover legal costs he needed other employment and as I understand it took full time employment at the Tavern. The Tavern is, as I said, opposite the Campbelltown courthouse. One needs only walk across a public street. I am prepared to take judicial notice of the fact that Campbelltown police station is one block from Campbelltown courthouse, having sat regularly at Campbelltown courthouse in recent times and driven past the police station to get to the courthouse.

107 The other locus to which I need describe is a locality on the South Coast of New South Wales known as Yowrie. Yowrie is nineteen kilometres northwest of Cobargo. Cobargo is a village located on the Princes Highway roughly midway between Narooma and Bega. The Yowrie River runs through the locality of Yowrie into the Wadbilliga River which itself is a tributary of the Tuross River. Most of the road from Cobargo to Yowrie is unsealed. That unsealed road continues in to the Wadbilliga National Park. The Wadbilliga National Park is very close to Yowrie, on its western side. On the coast of New South Wales, about twelve kilometres south of Narooma is a place known as Mystery Bay which is immediately north of Cape Dromedary. Cape Dromedary was named by Captain Cook as well as the nearby Mt Dromedary. Whether it was Captain Cook who named Mystery Bay is a mystery to me. From Mystery Bay to Cobargo is a distance of approximately twenty-seven kilometres. Accordingly, from Mystery Bay to Yowrie is a distance of forty-six kilometres. One datum in this case is that there were cannabis plantations growing in the locality of Yowrie.

108 The evidence before me contains a statement made by Detective Senior Sergeant Robert Charles Anderson of the Drug Enforcement Agency (DEA). That tells me that at 5am on Friday 28 December 1990 Anderson attended a briefing at the Bega police station. Following upon that briefing, Anderson, with other police, went to the Yowrie area. A group of police went to an area near Russells Creek where Anderson saw an area cleared of trees and surrounded by wire in which a large number of cannabis plants were growing. A short time later Anderson, with other detectives, went to an area west of the creek where there was another area cleared of trees. That area was surrounded by netting and contained a large plot of cannabis plants covered by netting and two smaller plots of cannabis plants. At another time, Anderson went with other detectives to a third area which was surrounded by netting and contained a large number of cannabis plants. It appears that all of these plantations were being actively irrigated. As I have already stated the estimated street value of the cannabis was some $8.5 million. When exactly the police received the intelligence as to the whereabouts of the cannabis plants I currently am unaware. A document I have read suggests it was Christmas Day 1990. It matters little. All that need be known is that the crops - and I use that word in the plural advisedly - were discovered in late December 1990.

292 One of the problems is that in putting a conversation such as the one recorded on the body wire to a logical or linguistic analysis can often come up with a wrong interpretation. The only interpretation that could properly be made would be by listening to the actual tapes. I cannot do that. The only person who has done that and has published reasons concerning it is Mr Heagney SM. I am guided by what he says. He said this on the subject of this tape:

“The prosecution relies on the recorded conversation of 6 December 1990 to support its contention about the meeting of September 1990. A reading of the transcript alone, would appear to support the prosecution’s contention, but listening to the actual recording gives the matter a different flavour altogether. The defendant Holovinsky’s evidence is that he was very drunk at the time. On a scale of 0-10 he placed himself at level 8 and that this may well be so is borne out by listening to the tape.

The defendant Holovinsky slurs his words, seems to be befuddled and to be having difficulty making a connection between his mind and his tongue. The question he asked of Senior Constable McDougall at page 9 of exhibit 18A, ‘What’s the area I said not to go near, remember I said - fucking - I mentioned an area’ when simply read appears as a complete indictment of the man but when one listens to it, it is clearly capable of bearing the meaning which the defendant Holovinsky ascribes to it. I refer to page 28 of the transcript of 18 August 1993 - that question - ‘Well you said, remember I said, et cetera, et cetera and he said that is McDougall said ‘You said Cobargo.’
Answer ‘Yes’.

Q. What were you conveying at the time?
A. I’d forgotten what area I told him.

And the same answer is given to Mr Cato in cross-examination at and in the vicinity of page 85.

Anyone who’s had the experience of trying to converse on a serious topic with a very drunk person can accept, I believe, that the defendant Holovinsky’s evidence that he was quickly and without pausing changing the subject from Landini to Treacy to Gravener and giving incomplete descriptions of places or events so the listener needs to have considerable background information to be able to follow at all what is being said. Even in the drunken verbal stumbling of the defendant Holovinsky in this conversation, there are moments when his concern about the arrest of Landini emerges but not with great clarity perhaps, but it emerges.”

293 The learned magistrate did not draw an adverse inference to the plaintiff from this tape recording. Bearing in mind that it is open to a number of interpretations and bearing in mind what the learned magistrate says about what he heard when he listened to the tape, I cannot give it any interpretation that suggests that the plaintiff was either involved either wittingly or unwittingly in the protection of this marihuana plantation. Furthermore, if I were to do so, I would be drawing inferences which are not properly open to be drawn.

294 The plaintiff in this appeal has the onus of proof on all issues other than that tendered by the defendant under section 14(2) of the Workers’ Compensation Act 1987. However, the evidentiary onus can shift from time to time. Does this evidence shift or raise a suspicion or overturn the impression or conclusions I have formed from the earlier evidence? In that regard I must apply the principles enunciated by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Whilst all civil matters are to be decided on the balance of probabilities, the more serious the allegation the more concerned the Court should be to be satisfied of the accurateness of the alleged fact.

295 The relevant passage in the judgment of Mr Justice Dixon can be found between pages 361.3 and 363.5. However, the same proposition is more succinctly and pointedly made in the judgment of Sir Edward McTiernan at 372 where his Honour said:

“English law adopts the reasonable rule that the strictness of the proof of an issue should be governed by the nature of the issue and its consequences. Lord Brougham’s speech in defence of Queen Carolyn describes an ascending scale of issues which illustrates this principle:

‘The evidence before us,’ he said, ‘is inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence, scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of an English queen.’

The law presumes against guilt of vice and immorality (Best on Evidence 2nd Edition (1855), page 309, 349). A learned authority says, however, that the presumption against moral wrong-doing is not so strong as the presumption against criminal wrong-doing (Kenny, Outlines the Criminal Law, 14th Edition (1933), page 343)”

A mere suspicion or hint or possible interpretation of activity which might be inconsistent with otherwise the thrust of a plaintiff’s case where that suggestion involves criminal wrong-doing cannot be adopted unless the evidence is substantially in support of the person having committed that criminal wrong-doing.

296 After leaving the Court Tavern at 3.50pm, McDougall went to the Campbelltown Police Station where he removed the listening device. He then telephoned his superiors. He returned to the Court Tavern at 5pm and at 7.10pm had another conversation, according to McDougall, with the plaintiff. It is noted that this conversation at 7.10 was after two hours of drinking by McDougall and after three further hours of drinking by the plaintiff. One must recall what the learned magistrate said about what he heard on the tape as to the plaintiff’s state of sobriety. After three hours further drinking one would think that the plaintiff would have been almost incoherent.

297 The conversation alleged can be conveniently found at paragraph 45 of McDougall’s statement which is exhibit 7 which commences at page 1584 of exhibit 7 and is contained at page 1601 of that exhibit. The conversation recorded is a lengthy one which does not contain the obscenities and blasphemies recorded in the wire taped conversation of earlier in the day, although it does contain some and contains no real new matter but does state matters in a way unfavourable to the plaintiff’s case. Furthermore, a lot of what is contained in the statement of the conversation alleged by McDougall regurgitates what is contained in earlier statements.

298 In his evidence at trial, McDougall would not admit that the plaintiff was drunk. That can be found in pages 2639, 2646 and 2673 of exhibit 12. That failure to admit that, in fact, the denial of the plaintiff’s drunkenness, must be contrasted with what fell from the learned magistrate who was able to listen to the tapes.

299 It was put by Mr Somosi to McDougall that at the time of the second conversation on 6 December 1990 alleged by McDougall that the plaintiff was extremely drunk to which the answer “No” was given by Mr McDougall. That can be found at exhibit 12, page 2694. That, in my view, is not acceptable if one accepts the view of the magistrate which I do as to what the tapes reveal and then bears in mind that here was the plaintiff in the Court Tavern for a further three hours doing, one can expect, what he would normally do: drink beer.

300 In the circumstances, I cannot give any weight to the second conversation alleged by McDougall on the evening of 6 December 1990.

301 The next events occurred on 10 December 1990. At 8.46pm a message was left for Holovinsky by a policewoman that McDougall had left a message to call him at the Elizabeth Hotel in Sydney. At 8.49pm the plaintiff returned the call to McDougall at the Elizabeth Hotel. That conversation was electronically recorded. The conversation commenced, leaving out the inessential parts, with a further discussion about the Yowrie bail up.

302 McDougall told the plaintiff that the police that conducted the operation at Gravener’s property was led by Mr Laurie Pettiford who was with the “Drug Commission”. The plaintiff said that he heard that the police had found the Drug plantation. Indeed, he went on to say that he had heard that they had found a lot of drugs.

303 In cross-examination, McDougall admitted that Mr Holovinsky did not seem upset when talking about this information that the drugs had been found. That evidence can be found in volume 12 at page 2704 and 2705. There is nothing incriminating or nothing inconsistent with the plaintiff’s evidence contained in that electronically intercepted telephone conversation.

304 On 11 December 1990 the plaintiff phoned Treacy at 7.34am. It is to be noted that I am turning Eastern Standard Time to Daylight Saving Time. The purpose of that conversation was to discuss Mr Treacy’s appearance at this Court at Campbelltown for sentencing on the charge of assault occasioning actual bodily harm. There was a further conversation to the same effect at 8.35 that evening. The discussion I find only of interest because I now know that being sentenced to periodic detention is called by the police and criminals as getting “weekends”. At the end of the conversation Treacy and Holovinsky agreed to have a drink.

305 On 12 December 1990 the plaintiff went off duty with a diagnosis of acute anxiety and depression and was to remain off duty until 21 December 1990. At 8.23 on the morning of that day, presumably before Mr Holovinsky visited a medical practitioner, he received a phone call from Rod Moore. In it Moore talks about a reward in the context of Landini’s arrest. There was general conversation of the intention of the plaintiff to attend a police funeral on that day, to attend the funeral of a young man from a western Sydney command who had committed suicide. There was also a general discussion of the Yowrie bail up which does not advance anyone’s knowledge of the matter. There is nothing inconsistent in that conversation with the plaintiff’s case before me.

306 On 13 December 1990 McDougall telephoned Newtown Police Station and was told that the plaintiff was on sick report. McDougall then ‘phoned the plaintiff at his home. This conversation was intercepted. There was a discussion about Treacy going to court and of the possibility that he would be sentenced to weekend detention. McDougall told the plaintiff of a drug confiscation at Milton where there were 600 plants had been seized.

307 In cross-examination, McDougall agreed that the plaintiff was congratulating McDougall on a successful drug “bust”. That can be found at page 2711 of exhibit 12.

308 There was a discussion raised by McDougall about the plaintiff speaking to his “mate”, “about Christmas for me” which may be a reference to a discussion about money or may be a reference to something else. A suggestion was raised that the parties might meet that afternoon, to which McDougall replied that he did not know whether he would meet that afternoon as he “got on the piss last night and I’m crook as a dog.”

309 The plaintiff then spoke about going to the policeman’s funeral and then making some disparaging remarks about senior police officers and then of the wake at the Albion Hotel and then reference to drinking. The conversation ends up with making arrangements to have a conversation on the following day. Whether they conversed on the following day, I do not know.

310 The next material before me is a record of a recording of a telephone conversation that was made to the Court Tavern at Campbelltown at 4.41pm on 20 December 1990. This was not a telephone interception as such but a tape recording of the conversation. The conversation is somewhat difficult to follow as the transcript of the recording is incomplete, or rather contains a lot of lacunae. To ascertain what was being discussed, one should consider the evidence given at trial about it by McDougall at pages 2716 to 2724 of exhibit 12.

311 McDougall agreed that the second page of the transcript is a reference to making arrangements to get in touch, together, at a place where there would be friends of mutual interest for a social drink. The evidence continues thus:

“Q. No suggestion by Sergeant Holovinsky in this telephone call that he’s worried about the crop being found, correct?
A. That’s right.

Q. No worry expressed in this conversation from Sergeant Holovinsky that things were getting hot at a crop site, correct?
A. That’s right.

Q. No suggestion by you in this conversation that there should be anything to worry about in relation to a crop site, correct?
A. That’s right.

Q. It was just a couple of coppers organising a drink?
A. That was part of the conversation.

Q. When you asked him if the fishing was all right, you said that it wasn’t a hook line and sinker type fishing, was a kind of code as far as you were concerned?
A. Yes.

Q. You laughed briefly after he gave his response which is inaudible?
A. I don’t recall that, but.

...

Q. I suggest he said something to you humorous about his great success in a sarcastic ironic way as in no success with the fishing, correct?
A. I don’t know.

Q. And you laughed correct?
A. I don’t know.

Q. Well, it wouldn’t be a laughing subject, your corrupt agreement between you that you allege correct?
A. I don’t know what was said by Holovinsky at that stage so I really can’t comment on that.

Q. That’s just a convenient answer, isn’t it? As a police officer, you have every reason to know what was said if it was part of some arrangement, correct?
A. Would you ask that again?

Q. As a police officer you were to have every reason to know what was said, correct?
A. Why would I? I rely on transcript which is what I’m doing now.

Q. We rely on the inaudibles to mean whatever you want them to mean?
A. What, at the time I was supposed to believe, ‘Okay, this is going to be inaudible, I better memorise this, I’ll memorise this bit here?’

...”

And so the matter continued.

312 The point is that McDougall maintained an ability to remember large slabs of conversations, yet when he had a transcript with lacunae in it he was unable to remember what was in the lacunae, prompted as he was by what had been transcribed from the tape. I cannot place any adverse inference on that conversation, that is inference adverse to the plaintiff’s case.

313 The final conversation between the plaintiff and McDougall occurred at the Court Tavern at Campbelltown at 6.37pm on 23 December 1990. At that time the plaintiff was working behind the public bar of the hotel. What the conversation is alleged to have been is set out on pages 1481 and 1482 of exhibit 12. It reads as if it is a transcript of the conversation itself but it is not. It is a transcript of a dictation by Mr McDougall onto an audio cassette after he left the hotel. It is in the same category as the handwritten notes, the transcripts of the handwritten notes which were constantly described by Mr Somosi as being “verbals”.

314 In it Holovinsky is alleged to have told McDougall that the syndicate of cannabis growers needed another four weeks, no doubt for the crop to mature. On page 1482 the following is attributed to the plaintiff:

“My bloke’s happy, everybody’s happy. It’s going great, couldn’t ask for better. My biggest problem is finding out where to put it all. My hardest this is to find out where to put it all. I’ll tell you now, you done a good job. I can assure you, you and I, are the first on the ledger. No one’s got a quid out of it yet, I know you’re short of a quid, we’re first on the ledger.”

315 It is difficult to see how, if there was a crop worth eight and a half million dollars and the share of Holovinsky was $50,000 and the share of McDougall was to be $15,000 plus some sort of Christmas bonus, so to speak, that those two gentlemen would be “first on the ledger”. Indeed, if up until this point the idea was that everyone would have money for Christmas, it would seem funny to suggest that everyone was happy if now the whole project had to be delayed by another four weeks.

316 It was suggested by Mr Somosi that this conversation was a fantasy and that what the pair were in fact talking about at the time was arranging a race meeting for Christmas. Anything may have been discussed. One wonders how the plaintiff may remember at a later time what was discussed on 23 December. The question is whether I am satisfied that it does show a purpose in the arrangement between Holovinsky and McDougall that is inconsistent with the evidence of the plaintiff. I am not persuaded on that conversation.

317 It would appear that shortly after this time the crop was found. As I have indicated, the police were on the site on 28 December 1990. The plaintiff was not arrested until 31 December 1990. Treacy was arrested on the same day.

318 It is somewhat surprising that there is no information passing from the South Coast to Treacy or from Treacy to Holovinsky after the discovery of the crop, no information passing from the time of the police raid up the chain or along the route of intelligence through Treacy to Holovinsky. According to the version put forward by McDougall, the plaintiff was boasting of having other sources of information as well as McDougall and yet there is no suggestion on the evidence before me that there was any alert sounded or information conveyed from the time of the finding of the crop, the raid in which Detective Senior Sergeant Anderson took part and the arrest of the plaintiff on the morning of 31 December 1990.

319 If I may be permitted to summarise my findings thus far, hopefully succinctly, I accept that on 28 September 1990 the plaintiff passed on to McDougall the criminal intelligence that had been conveyed to him earlier that month by Treacy at the meeting attended by Rod Moore.

320 I accept that the thrust of the conversation was that deposed to by the plaintiff but I also accept that there was a reference to Cobargo and reference to the possibility of McDougall’s making a quid, presumably through the reward system. Indeed, this passage of evidence of McDougall ought be considered. It is towards the commencement of his cross-examination and is found at page 2430 of exhibit 11:

“Q. What I suggest the truth is, is this: That Holovinsky was continually saying to you ‘Let’s get Landini, let’s get Landini.’ Along those lines?
A. Yes, as shown in my evidence yes.

Q. And it really particularly is shown in the recorded conversations, is it not, where you are both swearing about Landini; done stickups in Sydney, heard about his association with a local copper, all that sort of stuff?
A. Yes.

Q. When he was talking on 6 December, ‘There will be no pinch there for you’ and so forth, correct?
A. How does that relate to Landini, does that question relate to that previous one?

Q. In relation to Landini the fact of the matter was that in the recorded conversations there is constant reference by Holovinsky of the subject of Landini, of getting Landini locked up, correct?
A. Yes.

...

Q. There is no doubt in your mind, is there, in your recorded conversations that Holovinsky is prevailing upon you to get Landini locked up, right?
A. Yes.

Q. And according to your verbal version of it, he was once his partner - Holovinsky’s partner in this crop?
A. Yes.

Q. So here we have Holovinsky saying in the recorded conversations, ‘Let’s get my ex-partner locked up for stickups’? Right?
A. Yes.”

321 That clearly is the thrust of the material that can be gleaned from the electronically recorded conversations between the plaintiff and McDougall. Once that position is reached one can see that the version of the conversation of 28 September 1990 which was alleged by McDougall and which led to the subsequent investigation of the plaintiff and his charging was based on a false premiss, on a misinterpretation of what the plaintiff had sought to convey to McDougall.

322 It is that misinterpretation of the conversation which led to the investigation and the arrest and charging of the plaintiff.

323 The question is does the plaintiff’s arrest and charging arise out of his employment. There are four reasons in my analysis or four benefits to be gleaned from the passing on of this intelligence by the plaintiff to McDougall. The first is the benefit to Treacy of seeking to help his mate, Gravener. The plaintiff went along with Treacy’s request but in so far as that request was to assist Treacy helping Gravener, that was purely a private purpose.

324 Furthermore, the plaintiff himself should have been alert to the fact that the request may not have been as innocent as Treacy represented it to the plaintiff. It may well be that Gravener had a crop, that Treacy and Gravener were trying to protect it from being ripped off by Landini and hence leading to protecting Gravener’s crop.

325 The second purpose was the arrest of Landini himself. If he were the grower of the crop, that was a public purpose, that is a purpose consistent with policing. Even if Landini were not the grower of the crop, his arrest might be seen as a public purpose if he had committed any criminal offence. Although it did not play significantly in the plaintiff’s mind, the mere discovery of the cannabis plantation had a public purpose. The detection and eradication of eight and a half million dollars worth of cannabis serves a public purpose. The destruction of illegal substances is in the interest of the State. These are prohibited substances. Even if the grower of the crops is not apprehended, the mere fact that the crop is apprehended and destroyed will deter the grower from a future attempt at growing the crop and furthermore put the police on notice as to where crops may be grown in the future. That is a public purpose.

326 The other purpose that obviously played on the plaintiff’s mind, the fourth purpose that I discern, is the plaintiff’s purpose in advancing his own career. With the utmost respect to the plaintiff, I would not categorise that as a public purpose. It was a private purpose and one hardly likely to be achieved. It was in effect a pious expectation. Hope springs eternal in the human breast and one might accept that Mr Holovinsky hoped to further his career by having Landini arrested, however, the remarks of Mr Heagney SM are relevant and I recite them because they tie in with my own:

“His expectations of his strategies have about them an air of unreality, as does Rod Moore’s expectations of sharing in a reward upon the arrest of Landini.

In the case of both of them, however, this may be because they were desperate to re-instate themselves in the opinion of their peers and were ready to clutch at straws.

The defendant Holovinsky’s lack of judgment at the time is reflected also, it seems to me, in his approach to Senior Constable McDougall to be a key player in his strategy, this approach seems to have been made on the spur of a drunken moment. The defendant Holovinsky conceded he was half tanked at the time and without much thought as to why a detective at Warilla rather than a more senior better geographically located officer was the right choice of person. Over optimistic and unrealistic as this strategy, in hindsight, might be judged to be, it still makes more sense than does the prosecution’s scenario that the defendant Holovinsky’s strategy was to engage the services of Senior Constable McDougall to prevent police detection of certain cannabis crops.”

The last sentence or two of that quotation are not particularly relevant to my observations about the futility or the fantasy involved in the plaintiff’s hope about prospering his career but they do indicate the difficulty with the position he adopted.

327 In Dive v Commissioner of Police, I accepted that where a police officer attends a course or interview in order to be promoted Sergeant and is unsuccessful, that his being told of his lack of success arose out of the employment because the police were encouraged to seek promotion and the police force needed to have Sergeants of Police to monitor and supervise more junior officers. Here the police force did not suggest to Sergeant Holovinsky that he take up this method of seeking to further his career so the plaintiff’s purpose must be seen to be private. However, in doing what he did, in seeking to pass on the criminal intelligence and to seek to have Landini arrested, the plaintiff was doing something that arose out of his employment.

328 The fact that he was approached by Treacy was because he was a policeman. That arose out of his police service. The fact that he passed the information on to McDougall for McDougall to follow up arose out of his employment.

329 There are some authorities which suggest that an injury which arises out of the employment also arises in the course of the employment but there are cases and dicta to the contrary. The classical case where an injury arose out of the employment but not in the course of the employment is Carr v Donnelly [1937] WCR 294. In that case the worker suffered burns. His clothes had been saturated with sodium chlorate while working and had burst into flames when he stood near a fire after he had left work. The injury arose out of but not in the course of his employment, a ruling of his Honour Judge Wall.

330 Here it is not suggested by learned senior counsel for the plaintiff that the injury arose in the course of the employment but rather out of the employment. He must establish that the injury arose out of the employment, that is that there was a causal relationship between the employment and the passing on of the intelligence which led to the arrest and charging of the plaintiff. In my view he has been successful in that.

331 If I may be permitted to do so, I wish to cite the first edition of the late Professor Mill’s Worker’s Compensation (New South Wales) 1969. At page 101 the following occurs:

“The causal relation, denoted by the words ‘out of the employment’, has been described in an early case in this way:

‘It is not enough for the applicant to say, ‘The accident would not have occurred if I had not been engaged in that employment or if I had not been in that particular place’. He must go further, and say, ‘The accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some particular danger’.

Craske v Wiggan [1909] 2 KB 635; 2 BWCC 35 (C.A.) cited with approval by Lord Dunedin in Plumb v Cobden Flour Mills Company Limited [1914] AC 62; 7 BWCC 1(H.L.).

Another statement of the test appears in a speech of Lord Sumner in Lancashire & Yorkshire Railway Company v Highley, [1917] AC 352; 10 BWCC 241:

‘Was it part of the injured person’s employment to hazard, to suffer or to do that which caused his injury? If yea, the accident arose out of his employment. If nay it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury’.” See also Moore & Co v Donnelly [1921] 1 AC 329; 13 BWCC 458 (H.L.), per Lord Birkenhead (“an admirable summary of the law”) and Slavin v Carmichael & Co Limited [1945] 1 AER 292; 37 BWCC 170. More recently, the test for the causal relationship has been stated thus: “If it appears that the fact of the man’s being employed in the particular job caused or to some material extent contributed to the injury then the injury can be said to arise out of the employment”: Nunan v Cockatoo Docks & Engineering Company Pty Limited [1941] WCR 94; 41 SR (NSW) 119 per Jordan CJ. His Honour continued that, While the causal relationship might be established in assault cases, locality cases and some case of special exposure to risk, the relationship might be established from any set of facts upon which it is open as a matter of commonsense.”

332 Mr Gross QC referred me to The Commonwealth v Oliver (1962) 107 CLR 353 and The Department of Public Health v Clancy [1961] WCR 232. Those authorities established that what is reasonably incidental to the performance of the worker’s duties must be judged not from any fixed and immoveable standard but from all the circumstance in a particular case including in particular those practices current at the time. However, those cases deal with the course of the employment where it is established that the course of employment will continue where a worker does something which he is required, expected or authorised to do in the carrying out of his work or which is reasonably incidental to the carrying out of his work.

333 It has been submitted by the plaintiff that if those tests for determining where a person is in the course of their employment are also applicable to an injury as to whether injury arises out of the employment. I do not believe that that is a proper statement of the law and injury can arise out of the employment, even if a worker is doing something which he is not expected, required or authorised to do in the carrying out of his work. One need only consider the ancient doctrine of added peril and the cases relating to it, for example, the cases where a worker acts contrary to explicit directions of his employer or acts contrary to implicit prohibitions of his employer or acts in breach of some law or regulation. Workers often do things the wrong way, they breach their employer’s directions, they act contrary to the laid down rules governing occupational health and safety, rules that have been laid down by statute, by regulation or by the employer himself in furtherance of the employer’s obligations to enforce occupational health and safety.

334 In the current matter the position that the plaintiff finds himself in is a position of added peril. Added peril can arise in a number of ways. They are succinctly set out by Professor Mills in the first edition of his work at page 141. They are these:

(a) The worker might have done something which was prohibited by statute or statutory regulation;

(b) He may have done something which was expressly prohibited by the employer;

(c) He may have done something which, although not expressly prohibited, was outside the things he was employed to do (implied prohibition) but which was directed to the general purposes of the employment;

(d) He may have done something which, although otherwise part of or incidental to his work, he did in a negligent or reckless way;

(e) He may have done something completely extraneous to the employment, something for his own independent purposes.

335 The doctrine of added peril no longer forms part of the law of this State since the decision of the Supreme Court in Collins v The Commissioner of Railways [1961] WCR 164 and, indeed, the whole doctrine, is really contrary to what was said by Lord Sumner in Highley’s case to which I have already referred.

336 As I said, the plaintiff was approached because he was a policeman and accepted criminal intelligence and in so doing what happened arose out of his employment and in passing on that criminal intelligence to McDougall for him to follow through, that arose also out of his employment.

337 The fact that the plaintiff did that contrary to the way that he ought to have done it, contrary to express directions and rules of the police service, contrary to the usual chain of command, does not stop the passing on of the intelligence from arising out of the employment for the causal link to exist. A worker who, in a mine, seeks to detonate an explosive and does so contrary to his training and instruction, contrary to the express stipulation of his employer, contrary to the law of the land provided by statutory rules, does not mean that when he is injured when the explosive detonates that what he did did not arise out of employment. He did the right thing the wrong way.

338 Here the plaintiff was seeking to do the right thing, however, he did it in the wrong way. Here the plaintiff had multiple aims, two of which were private but two of which were consistent with his duty as a police officer. In my view what happened to the plaintiff arose out of his employment, that it was causally related to his duty.

339 What does arise largely is misconduct and, if I may be permitted to say so, gross misconduct. The matter must be determined in accordance with the defence pleaded by the defendant under section 14(2) of the Workers’ Compensation Act 1987. Section 14(2) provides:

“If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.”

340 The first thing I must find is that the injury does not result solely from the plaintiff’s serious and wilful misconduct. Involved in the matter is the misapprehension or misrecording or misunderstanding by McDougall of the intelligence which the plaintiff sought to communicate to him. That may have been contributed to by Mr Holovinsky’s inebriety but I cannot categorise what happened to Mr Holovinsky as being due solely to his own serious and wilful misconduct. However, the defence also fails for a second reason because in my view there is serious and permanent disablement.

341 At the time the plaintiff resigned his employment effectively in order to have the order under section 181D of the Police Act 1990 revoked, he had been a policeman for twenty-three years. He was deprived of a career in which he could have served to the end of his effective working life. Whether he would have done so or not depends, of course, upon how what would have happened about his alcoholism, a term used bluntly by counsel in their addresses and which is appropriate to adopt, if the charging and arrest had not occurred. However, that is really beside the point.

342 An injury which causes a worker or a police officer to lose his or her career can only be categorised, in my view, as serious. Especially is that so in the present case where Mr Holovinsky left the police force under a cloud and, indeed, remains under a cloud at the current time or at least during the hearing of the current matter.

343 The medical evidence persuades me that serious disablement, the serious inability to do police work, is likely to be permanent. In his report of 15 August 1996, Dr Strum said this:

“I believe his symptoms are fairly well entrenched and will remain with him, even though he has retired. Vindication would have helped but vindication is not going to be forthcoming or if it is forthcoming it will be in a half hearted way.”

344 The strenuous and completely understandable defence of the plaintiff’s current appeal by the defendant could hardly give the plaintiff a finding of vindication. Equally, my reasons for judgment in which I have expressed a number of criticisms of the plaintiff will not be seen by him as complete vindication. Furthermore, since Dr Strum wrote that report ten years have passed in which I accept the plaintiff has continued to suffer from the same symptoms.

345 I infer from Dr Strum’s opinion that the plaintiff’s condition is likely to be permanent. In any event, that is precisely stated by Dr Walker in her report of 22 February 2004. At the foot of page 15 Dr Walker refers to “The perception of his guilt remained in the police service”. That the perception of the plaintiff’s guilt remained in the police service can be ascertained by the attitude of the Commissioner of Police brought to the current proceedings. I do not mean thereby to criticise the Commissioner of Police or the defence in this case. It was entirely warranted but it would not help the plaintiff on the road to recovery.

346 Furthermore, at the top of page 16 of her report, Dr Walker says this:

“Mr Holovinsky is currently able to work out of the police service but, in my view, he remains permanently more vulnerable to post-traumatic stress disorder, anxiety and depression.”

347 Implicit in that is a statement by the doctor that the plaintiff is not fit to work in the police service and implicit in it also is the averment that that would obtain permanently, especially if a vulnerability remains permanently. In my view the plaintiff has established that he is suffering from serious and permanent disablement.

348 I have enquired of counsel for the parties if any further reasons for judgment being required. I am told that none is so required.

349 For those reasons, I set aside the decision of the Commissioner of Police made on 9 October 2000 and I determine that the suffering by the plaintiff of the infirmity of “adjustment disorder with anxiety and depressed mood and post-traumatic stress disorder”, as specified in the certificate of the Police Superannuation Advisory Committee dated 27 September 2000, was caused by the plaintiff’s having been hurt on duty on 31 December 1990.

STOOD OVER FOR FURTHER ORDERS TO FRIDAY 1 SEPTEMBER 2006

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