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TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T10313 and T10316

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Andrew Scott Gunston
(T9986 of 2002)

and

Commissioner of Police

 

COMMISSIONER T J ABEY

HOBART, 27 June 2002

Industrial dispute - alleged unfair termination of employment - off duty behaviour - no valid reason for termination - re-employment ordered

REASONS FOR DECISION

(1) On 4 January 2002, Andrew Scott Gunston (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Commissioner of Police arising out of the alleged unfair termination of his employment.

[2] The matter was set down for hearing at "Lyndhurst", 448 Elizabeth Street, North Hobart at 9.30am Wednesday 1 May 2002.

[3] When this matter came on for hearing, Mr P Tree, together with Mr C Green, appeared for the applicant. Mr M Miller, together with Mr F Ogle, appeared for the Commissioner of Police.

[4] Mr Tree commenced by making application for the hearing to be in private, pursuant to s.26 of the Act. This application was strongly opposed by Mr Miller. In a decision issued on transcript, the application was denied. Reasons were issued subsequently in a decision dated 10 May 2002.

[5] The applicant at the time of his dismissal was a sergeant in Tasmania Police. He is 38 years of age and had been in the police service for 22 years. He has not been in any employment external to the police service. Following graduation from the Police Academy, he was sworn in as a constable and subsequently served in a range of posts and roles throughout Tasmania. This included three years in the uniform branch in Queenstown during the late eighties.

[6] In October 1998 Mr Gunston was promoted to Sergeant and transferred to the position of Officer-in-Charge, Currie, King Island. Following a domestic issue involving his then de facto partner, Mr Gunston volunteered for an immediate transfer off the Island. He successfully applied for the position of Officer-in-Charge at Queenstown and commenced this role in February 2001.

[7] The Queenstown station is normally manned by between five to seven constables, together with another sergeant in addition to the officer-in-charge. Mr Gunston was also responsible for the supervision of the constable stationed at Strahan. At least for the first few months Mr Gunston was, as a consequence of his specialist qualifications, responsible for the police rescue vessel located at Strahan. The District Inspector [Inspector Bonde] was also based at the Queenstown station but did not have a day-to-day operational role within the station.

[8] During September 2001 Mr Gunston had been on leave, returning to work on or about 8 October. It was during this week that Mr Gunston initiated an application for a transfer away from Queenstown.

[9] At the end of day shift on Friday 12 October Mr Gunston went to the Empire Hotel with the intention of having a counter meal and a few drinks. He was off duty and not in uniform.

[10] Later in the evening he met up with a Ms L. They had a few drinks and played eight ball. At one stage they were seen to engage in a passionate kiss. Both were clearly under the influence of alcohol although some way short of being paralytic.

[11] At approximately 1.30am Mr Gunston and Ms L moved to an area known as the coffee lounge. This area, located up a short flight of stairs off the foyer, was in darkness, or at least the lights were switched off. The couple moved to a far corner of the lounge, a position that could only be observed by a person ascending the stairs.

[12] There is little contest as to what followed next. Mr Gunston proceeded to perform oral sex on Ms L who was seated on a chair. They were initially interrupted by a Mr M, a bar attendant who came up the stairs to pick up a glass left by Mr Gunston on the stair case. Mr M did not appear overly disturbed by this discovery but did report it to Ms B, the bar and restaurant manager.

[13] Ms B proceeded to the coffee lounge area and instructed them to leave in no uncertain terms. It is possible that Ms B went to the area twice within a short space of time. Although a small number of customers were in the bar at the time, none witnessed the incident. Mr Gunston and Ms L subsequently left the Empire and proceeded across the road to the Mt Lyell Motor Inn.

[14] Shortly after 2.00am Ms B beckoned two on-duty police constables into the hotel. The incident was a matter of discussion between the police officers, the bar staff and the few remaining hotel patrons. No formal complaint was lodged and there is evidence that suggests that the incident was the source of some amusement.

[15] It is clear that the incident, with all the embellishments that the gossip mill brings, became common knowledge in Queenstown within a short space of time. Indeed it is likely that knowledge of the incident spread beyond Queenstown.

[16] Some 10 days later Mr Gunston had cause to arrest a local male citizen. It transpires that family members of the person arrested then alerted Police headquarters in Hobart of the incident involving Mr Gunston and Ms L. As they were not witnesses to the incident, one can only assume that their knowledge came from the gossip mill.

[17] The Internal Investigation Unit [Internals] immediately initiated an investigation. Officers were despatched to Queenstown and a number of interviews were conducted on 24 and 25 October.

[18] Acting on a verbal briefing following this initial investigation, the Commissioner of Police, Commissioner McCreadie, on 26 October, issued what is referred to as a "show cause" notice. This is reproduced in full:1

"Private & Confidential

26 October 2001

Sergeant A S Gunston No 1467
QUEENSTOWN DIVISION

COMPLAINT OF MISCONDUCT - SERGEANT A S GUNSTON NO 1467

As you are aware Internal Investigations has investigated a complaint of misconduct received from a Ms B, the Bar Manager of the Empire Hotel at Queenstown. Ms B alleged that she observed you performing cunnilingus on Ms L in the coffee lounge at the Empire Hotel, Queenstown, in the early hours of 13 October 2001.

Ms L was interviewed on 25 October 2001 and confirmed Ms B's observations.

During your interview with internal investigators you did not deny that you performed cunnilingus on Ms L but asserted that you had no memory of having done so. I am satisfied from the evidence of Ms B and Ms L that you performed the act at the time and location alleged. I hold grave reservations as to whether your assertion that you have no memory of performing cunnilingus on Ms L is honest. Whilst you admitted consuming a significant amount of intoxicating liquor on the night in question, I consider it highly improbable that you have no memory of performing such an act in a public place. I note that you recall events at the Hotel prior to and post the incident.

The fact that you were off duty and may have been affected by intoxicating liquor does not excuse you from being wilfully involved in such an indecent sexual act in a public place. This behaviour amounts to gross misconduct which warrants serious disciplinary action being taken.

Your personal dossier indicates that you were disciplined by then Commissioner W Horman "for conducting yourself in a manner that was likely to have a tendency to be prejudicial to the reputation of the Force". On that occasion you used language to a female motorist that had an improper sexual connotation and in his determination on 2 April 1990, Commissioner Horman warned you 'that any future incident of a similar nature would raise your suitability to remain as a member of the Force'.

On 24 August 2001 you were counselled by Commander T Tully for acting in a manner which was likely to bring discredit on the Tasmania Police Service. During the counselling Commander Tully again advised you that any further misconduct would result in you being required to show cause why I should retain confidence in you.

This complaint clearly demonstrates that you, notwithstanding the opportunity you were given to redress your behaviour, have taken no action to modify your conduct since August 2001. You have again failed to comply with the Tasmania Police Code of Ethics and Departmental Policy.

Your behaviour is well below my expectation of the professional and moral standards required from a police officer and is clearly highly prejudicial to the reputation of the Tasmania Police Service.

Behaviour such as yours is totally unacceptable and will not be tolerated, therefore I am of the mind to terminate your appointment. However, prior to making my final determination on this matter, I will afford you the opportunity to make submissions to me as to why you should not be dismissed from Tasmania Police. Any such submissions should be in writing and be forwarded to my office within fourteen (14) days of this report being provided to you.

At the time of receiving this notification you are to be suspended from duty until further notice.

R McCreadie
Commissioner of Police"

[19] Mr Gunston's 12-page response is dated 1 November 2001. The written report from Internals is dated 14 November. Both Commander Tully and Inspector Bonde, presumably at the request of the Deputy Commissioner, provided written comments on Mr Gunston's submission. These documents were not provided to Mr Gunston.

[20] By letter dated 12 December 2001, served on 17 December, Mr Gunston was summarily dismissed. The notice reads as follows:2

"Private & Confidential

12 December 2001

Sergeant A S Gunston No 1467
QUEENSTOWN DIVISION

NOTICE OF DISMISSAL - SERGEANT A S GUNSTON 1476

On 26 October 2001, I required you to show cause why I should continue to retain confidence in you to serve as a member of the Tasmania Police Service.

I have reviewed the internal investigation file relating to the recent incident of gross misconduct at the Empire Hotel, Queenstown, and other relevant records contained in your Personal Dossier. I have also considered your response of 1 November 2001 to the Notice to Show Cause with which you were served.

Commander Tully has confirmed that when he counselled you on 24 August 2001 in relation to a previous matter, he advised you that any further misconduct on your part could result in your dismissal from the Tasmania Police Service.

In all the circumstances, and based on the available evidence, I have determined that the only appropriate course open to me is to dismiss you from the Tasmania Police Service.

A copy of your Notice of Dismissal is enclosed.

R McCreadie
Commissioner of Police"

[21] On 4 January 2002 Mr Gunston lodged an application pursuant to s.29(1A), alleging that his employment had been unfairly terminated.

[22] On 25 February a local resident, Ms C, informed Queenstown Police of an incident in the mall a few days earlier. In summary, Ms C stated that she had overheard a group of youths boasting as to how they had "spiked" the drinks of both Mr Gunston and Ms L during the evening of the incident.

[23] Again Internals initiated an investigation and interviewed Ms C on 26 February. The officers involved conducted some additional investigations aimed at identifying the youths involved. This proved to be unsuccessful. It would appear that the investigation did not proceed beyond this point based largely of the improbability, indeed impossibility, of other aspects of the youths' account of the incident.

[24] Following representations from Mr Gunston's solicitor, Commissioner McCreadie advised that he was prepared to consider any further submissions made on Mr Gunston's behalf. Mr Gunston's solicitor forwarded further submissions under cover of letter dated 15 February.

[25] By letter dated 29 April 2002 Commissioner McCreadie advised that he had determined to adhere to his earlier decision. This letter also made reference [I believe for the first time] to an incident on 27 March 2002 involving a visit by Mr Gunston to the residence of his former partner.

Does the Commission Have Jurisdiction?

[26] During closing submissions Mr Miller submitted that the Commission lacks jurisdiction to hear and determine an application relating to the alleged unfair dismissal of a police officer. Mr Miller's submissions are summarised as follows.

[27] Prior to the enactment of the Industrial Relations Amendment Act 2000 [the 2000 amendments], police officers did not come within the jurisdiction of the Commission. They were servants, as distinct from employees of the Crown, holding office at the pleasure of the Crown.

[28] The 2000 amendments expanded the definition of "employee" to include police officers other than the Commissioner of Police, the latter being deemed to be a "Controlling Authority".

[29] Notwithstanding, the Commission does not have jurisdiction relating to the dismissal of the Deputy Commissioner, Assistant Commissioner, a superintendent, an inspector or other officers of police. These appointments can only be made by the Governor [see s.9, 9A and 10 of the Police Regulation Act 1898}. The Commission is not empowered to make an order requiring the Governor to reinstate a person dismissed from such office. This casts great doubt on the jurisdiction of the Commission to entertain applications from sergeants or constables, who are appointed by the Commissioner of Police pursuant to s.12 of the Police Regulation Act.

[30] It is also significant that the power of the Commissioner of Police to appoint sergeants and constables is subject to disallowance by the Governor [s.12[2]]. It follows that this disallowance power would be exercisable in relation to an appointment made in order to comply with an s.31[1][b] order for reinstatement.

[31] It follows, Mr Miller contended, that this tension between the two Acts is added reason for construing the provisions of the Industrial Relations Act as being limited to industrial disputes other than disputes relating to the dismissal of police officers.

[32] In Lee v Fletcher the Full Court ruled that the prerogative power of dismissal vested in the Governor was not reviewable by the Police Disciplinary Board. This in turn led to an amendment which conferred a right of appeal to the Board of all police officers other than the Commissioner, Deputy Commissioner or Assistant Commissioners [see s.50D].

[33] In Saraswati v The Queen, Gaudron J. said:3

"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other ... More particularly, an intention to affect the earlier provision will not be implied if the later is of general application ... and the earlier deals with some matter affecting the individual ..."

[34] Mr Miller submitted that the Police Regulation Act contains detailed provisions conferring a right of appeal for dismissed police officers. In accordance with Saraswati, this specialist board and its attendant procedures should prevail over the generalist provisions of the Industrial Relations Act. He said:4

"It's submitted that in the absence of express provisions in the Industrial Relations Act, the Act should not be interpreted as creating a parallel for alternative jurisdiction with different processes and the potential for conflict between the two jurisdictions."

[35] In North West County Council v Dunn the High Court addresses the issue of the generalist unfair dismissal provisions of the Industrial Arbitration Act as they relate to specific procedures and remedies in the Local Government Act. Barwick CJ observed:5

"But it seems to me that the doubts which are thus raised as to the reach of the arbitral power to order the reinstatement are much strengthened when in relation to the local government bodies the Parliament has seen fit to make a specific provision for examining the circumstances in which the local government body, having suspended its employee, is minded to exercise its power of dismissal. The matter is carried much further when the very question which is the focus of an application for reinstatement by an arbitral tribunal is the question to be dealt with in the inquiry under the particular statute governing the local government council. The power of the Minister to correct within the monetary limits specified in s.99(11A)(a) what he may think is unfair in the dismissal of the employee to my mind emphasises the completeness with which the Local Government Act affects to provide for the oversight of the circumstances of a dismissal both threatened and actual of a council employee. ... After a good deal of reflection I find it impossible to conclude that the legislature in so enacting intended that the power of an arbitral tribunal to order the reinstatement of an employee to whom s.99 applies should coexist with the Local Government Act. If it did, it would enable the making of such an order at any point of time and notwithstanding the engagement by the council of some substituted employee: and even though after all the provisions of s.99 had been followed, the Minister had ordered compensation."

[36] In McQuillam v Commissioner for Public Employment the Full Court of the Industrial Court of SA said:6

"All the sections of the GME Act to which we have referred, seem to demonstrate a clear legislative intent that the entry into employment in the Public Service and the manner in which an employee leaves it, all fall under the umbrella of that Act. The comprehensive scheme which emerges from all those provisions would not permit any room for the operation of s.31 of the Industrial Act. Cf ABC v Industrial Court of SA (1977) 138 CLR 399.

...

As Barwick CJ pointed out in Northwest County Council v Dunn (1971) 126 CLR 247 at 251 when discussing the question of whether the provisions of the Industrial Arbitration Act 1940 (NSW) providing for the re-instatement in employment of persons wrongly dismissed, were inapplicable when sought to be applied to a servant of a county council whose services had been terminated pursuant to s.99 of the ... Local Government Act 1919 (NSW).

... That reasoning seems equally pertinent to the legislation with which we are here concerned."

[37] On these authorities Mr Miller contended the specific provisions of Part IVB of the Police Regulation Act should displace the generalist provisions of the Industrial Relations Act, insofar as it relates to the dismissal of police officers.

[38] Section 31[2][a] of the Industrial Relations Act states:

"(2)   A Commissioner shall not make an order under this section -

(a) that is inconsistent with the provisions of any Act dealing with the same subject-matter;"

[39] Mr Miller submitted that an order for reinstatement would be inconsistent with the specific provisions of the Police Regulation Act.

[40] Mr Tree rejected the contention that the Commission lacked jurisdiction to hear and determine this matter. His submissions are summarised as follows.

[41] In North West County Council, Barwick CJ said:7

"The question which has arisen for decision in this appeal is whether the enactment of the Local Government Amendment Act, 1945 (NSW) which inserted S.99(11A) into the Local Government Act, 1919-1968 (NSW) ("The Local Government Act") operates to prevent an industrial arbitration tribunal under the Arbitration Act ordering the reinstatement in employment of a servant of a local government body to whom s.99 applies and whose services with the council have been terminated by the council in conformity with that section.

...

I assume for the purposes of these reasons that the power of the respondent committee but for the enactment of s.99(11A) of the Local Government Act would have extended so far as to have enabled it to order the reinstatement of any employee of a county council. The question then is whether upon the enactment of s.99(11A) the Arbitration Act ceased to authorize the making of such an order. The ground upon which it is said that it did is that the provisions of the Local Government Act after the insertion of s.99(11A) into it were so inconsistent with the continuance of any such power that it effected a pro tanto repeal of or engrafted an exception upon the grant of the power of an industrial arbitration tribunal to order the reinstatement of any dismissed employee of a local government council."

[42] This, Mr Tree contended, is the exact opposite of the situation in the instant case. It is the Industrial Relations Act that has been most recently amended. In these circumstances it would be possible to construct an argument that the 2000 Amendments had the effect of destroying the power to refer an alleged unfair dismissal to the Police Disciplinary Board. If that was argued [and it is not] the rules of construction outlined in Saraswati would be invoked, no express words to reflect such an intention would be found, and the powers of the Disciplinary Board would remain in place.

[43] It would be entirely wrong, however to go the next step and contend that the enactment of the 2000 Amendments reflect an intention of Parliament to somehow or other truncate the amendments so that it left the Police Regulation Act as the only avenue to seek reinstatement.

[44] The 2000 Amendments reflect a clear intent on the part of Parliament to bring police officers and the Commissioner of Police within the purview of the Act in every respect. It is simply not open to read sections 29, 30 and 31 as applying to all industrial disputes other than the dismissal of police officers.

Findings on Jurisdiction

[45] I agree with Mr Tree that North West County Council addresses an entirely different set of circumstances to that which applies in the instant case.

[46] In the former instance, the Industrial Arbitration Act had, prior to the enactment of s.99 in the Local Government Act, jurisdiction to hear applications relating to the alleged unfair dismissal of Local Government employees. The enactment of s.99[11A] in the Local Government Act introduced a set of codified rules for dealing with the dismissal of Local Government employees. It was these specialist, codified procedures [which, I note in passing, appear to be mandatory] which, the High Court held, supplanted the generalist provisions of the Industrial Arbitration Act.

[47] Prior to the enactment of the 2000 Amendments, the Industrial Relations Act clearly did not confer jurisdiction on the Commission to hear and determine industrial disputes relating to police officers and the Commissioner of Police. In my view the 2000 Amendments reflect a clear intention of Parliament to change this. Section 4[c] of the Clause notes reads:8

"(c) These amendments define police officers, apprentices, outworkers and trainees as employees for the purposes of the Act. See also the consequential amendment at (a), 'controlling authority'."

[48] In s.3[1] "industrial matter" is defined as:

"means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

...

[ii] the termination of employment of an employee or former employee; or

..."

[49] In the same section "industrial dispute" is defined as:

"means a dispute in relation to an industrial matter -"

[50] There is nothing in the Act as it now stands which enables me to conclude that industrial dispute should be read as meaning all disputes other than the dismissal of police officers.

[51] In terms of Saraswati, I conclude that it was the intent of Parliament that the provisions of both the Police Regulation Act and the Industrial Relations Act apply and that it is open to the individual to choose which avenue is to be pursued.

[52] I do not accept that the disallowance power vested in the Governor under s.12[2] of the Police Regulation Act works to potentially frustrate an order for reinstatement or re-employment. Section 12[2] refers to an "appointment made under the authority of this section".

[53] Under the Industrial Relations Act it is clear that the Commission has power to order reinstatement or re-employment. It is equally clear that industrial matter does not extend to appointments. It follows that an order relating to reinstatement or re-employment should not be read as an order going to the matter of appointment.

[54] Whilst I acknowledge the point raised by Mr Miller relating to s.31[2][a] of the Industrial Relations Act, he did not specifically take me to an "inconsistency" which might invoke this section. I therefore conclude that this section does not work to preclude the Commission's jurisdiction.

[55] In conclusion I find that the Commission does have jurisdiction to hear and determine disputes relating to the alleged unfair dismissal of sergeants and constables appointed under s.12 of the Police Regulation Act. In the context of this dispute it is unnecessary for me to address the matter of police officers above the rank of sergeant who are appointed by the Governor, and I refrain from doing so.

[56] Mr Miller's application is denied.

The Evidence

[57] Evidence was taken from the following witnesses:

  • Andrew Scott Gunston, the applicant.

  • Constable David Scarafiotti, stationed at Strahan for the past two years.

  • Constable Benjamin John Rainbird, 2½ years' service in a variety of posts, currently at Queenstown.

  • Constable Robert Timothy Wolfe, three years' service, the last eight months at Queenstown.

  • Sergeant Timothy Bruce Dooley, 18 years' service, a member of the Internal Investigations Unit at the time of the incident.

  • Sergeant Nigel Leith Sheahen, 13 years' service, appointed to Queenstown in May 2001 and Officer-in-Charge at Queenstown at the time of hearing.

  • Sergeant Donna Louise Adams, 14 years' service and currently a member of Internal Investigations Unit.

  • Inspector Robert James Bonde, 24 years' service, located at Queenstown at the time of the incident.

  • Commander Thomas Alexander Tully, Western District.

  • Commissioner Richard McCreadie, 38 years' service, Commissioner of Police for the past 5½ years.

  • Inspector Laurence John Huxley, 23 years' service, currently a member of the Internal Investigations Unit.

  • Sergeant Kerry Anne Whitwam, 20 years' service, stationed at Queenstown between May 1999 and March 2001, currently stationed at Eastern District administration.

  • Dr David Jackson, Senior Staff Medical Officer at the Hobart Clinic with responsibility for alcohol and drug matters. Dr Jackson presented as an expert witness in relation to the effects of drugs and alcohol.

[58] In addition there were a number of civilian witnesses. This case has attracted unprecedented media interest and it is a matter of some regret that the names of these witnesses have been widely publicised. As this decision will remain permanently in the records of this Commission, I have decided to refer to these witnesses by letter only. The fact that these witnesses gave their evidence in a stressful environment without the issue of summons stands to their considerable credit. These witnesses were:

  • Ms L, involved in the incident with Mr Gunston.

  • Ms B, Bar and Restaurant Manager at the Empire Hotel at the time of the incident.

  • Mr M, casual bar attendant at the Empire Hotel at the time of the incident and currently licensee of the Hotel.

  • Ms F, an employee of the Mt Lyell Motor Inn and a work colleague of Ms L.

[59] In the experience of this Commission, this was an extremely long case. In addition to more than 700 pages of transcript, there are probably more than 2000 additional pages of material in the form of interview transcripts, correspondence, reports, records, articles and judgements. It has all been reviewed. In this decision I have chosen to refer only to material that is persuasive in determining the final outcome. To do otherwise would lead to an unacceptable delay in completing this decision.

The Incident

[60] At approximately 7.30pm on 12 October Mr Gunston went to the Empire Hotel. He was off duty and out of uniform. His stated intention was to consume a counter meal, have a few drinks and play some eight ball, and that is what occurred.

[61] At some stage during the evening, probably shortly after midnight, Ms L came to the Empire. She had been working across the road at the Mt Lyell Motor Inn. She had finished work at 9.00pm and then stayed on for several drinks.

[62] Ms L was an acquaintance of Mr Gunston but they were not in any sort of relationship. She played eight ball with Mr Gunston as a doubles partner. Both were affected by alcohol with various assessments on the sobriety scale ranging from 6 to 8 [10 being paralytic]. After a successful game of eight ball they were observed to kiss in a manner referred to in proceedings as a "tonguey".

[63] At approx, 1.30am Mr Gunston and Ms L moved separately from the bar to an area known as the coffee lounge. This is an area accessed from the foyer up a short flight of stairs. The lounge was not in use at the time and the evidence of both was that they believed it was not used at all. Subsequent evidence indicates that it was used as an overflow area during meal times. Ms B said that people should not be there after eating hours.9

[64] Mr Gunston and Ms L moved to a table in the lounge that could not be observed from the foyer or the bar. Nonetheless, there was no barrier to entry should anyone choose to ascend the short flight of stairs. The lights were off and Ms L described it as being dark. No one else was present in the lounge.

[65] Whilst Mr Gunston has no specific memory of what happened next there could be no doubt that Mr Gunston proceeded to perform oral sex on Ms L who was seated on a chair. The evidence indicates that Ms L's slacks were around her ankles and her pants had been removed. Mr Gunston was fully clothed.

[66] They were disturbed by Mr M, who in the course of his normal closing routine noticed a half empty glass of stout near or on the stairs leading to the coffee lounge. Upon ascending the stairs, he noticed movement in his peripheral vision. Mr M recognised Mr Gunston and Ms L in what he described as a "compromising position". The transcript of his interview by Internals reads:10

"Um I then grabbed the glass and I just put me hand up to the left hand side of me so I couldn't see because I felt a bit embarrassed for them and meself and I just said, 'Oh look yous are right guys, don't worry about it, we've shut the pub'. As if to say, 'Whenever you're ready, can you - you know - can you kind of make a move and go home'."

[67] Mr M agreed that he did not ask them to leave.11 He then returned to the bar and informed Ms B.

[68] Ms B proceeded to the coffee lounge, switched on the light and, in no uncertain terms, demanded they leave. Ms B's evidence is as follows:12

"And you saw his head come up. What did - what happened then? Did they say anything to you or did you say anything to them?............ I actually said something to them; asked them to leave. I don't know what else I said because I was pretty angry at that time.

Why were you angry?............ Because I hate anyone being up there because it frightens me.

Presumably you don't hate people taking their kids up there to have a meal?............ No, this is at closing time when people are hanging around the premises.

And were you angry for any other reason?............ No."

[69] It is unlikely that either Mr M or Ms B actually witnessed the act of oral sex although they were left in no doubt as to what had occurred. There is no evidence of anyone else witnessing the incident, and indeed, that would be highly unlikely.

[70] There is some conflict in the evidence as to whether Ms B went to the coffee lounge more than once. Nothing really turns on this and it is possible that Ms B made two visits in such quick succession that Ms L understood it as one visit only. Shortly thereafter Mr Gunston and Ms L left the hotel and walked across the road to the Mt Lyell Motor Inn.

[71] Constable Wolfe said that he and Constable Natalie Kenshole [since resigned and moved interstate] were on routine patrol in the vicinity of the Empire at the time Mr Gunston and Ms L left the premises. They noticed Ms B waving at them through the window.

[72] The two constables entered the hotel bar. Constable Wolfe's evidence is that there were two or three customers in the bar in addition to Ms B and Mr M. His evidence is as follows:13

"What do you recall as to the conversation that you were present between Ms B and Constable Kenshole?............ Basically, M told Constable Kenshole that she'd caught Norm licking J out, in a back room, and they had a bit of a laugh.

When you say, they had a good laugh, that's M and the constable?............ Yes, and I did as well.

Why did that lead to laughter between you?............ At the time we found it fairly funny. It's not the usual thing that goes on in a bar, so we just laughed.

Certainly not by police officers?............ No."

[73] On the question of a complaint, Constable Wolfe said:14

"Did she wish to make a complaint?............ No.

So if she didn't wish to make a complaint, what was your understanding as to why she - ?............ MB was good friends with Natalie Kenshole, Constable Kenshole, and we often used to go in there and just have a Coke and a chat after it was shutting down. I just, at the time assumed she just wanted another chat.

So you made an assumption?............ Mm.

So, if there was evidence that suggested that initially at least she wanted your assistance to see that they left the hotel, you couldn't dispute that?............ I couldn't dispute it, no."

[74] According to Constable Wolfe, the incident was a source of amusement at the Police station over the next week although there was a lack of certainty as to what had actually occurred.15

What was the status of the hotel at the time of the incident?

[75] In closing submissions Mr Miller stated:16

"It's submitted that that conduct clearly provides a valid reason for termination. It's also submitted - and my learned friend in his submissions referred to the fact that there was no criminal conduct involved, well, that's certainly not the view the respondent takes of it. This of course is not a criminal tribunal, but nevertheless it's submitted that it's clear from the evidence that the conduct constituted a breach of section 13(1)(a) of the Police Offences Act and I handed up a copy of that provision earlier, I believe. That provision makes it an offence to behave in an indecent or offensive manner in a public place."

[76] And later:17

"It's submitted that - well, it flowed from those submissions that Mr Gunston in fact committed a criminal offence, as did Ms L, and that's not only a breach of section 13(1)(a) but a very, very serious breach of his oath - the Constable's Oath."

[77] Section 13 of the Police Offences Act states:

"13.   A person shall not, in a public place -

[a] behave in a violent, riotous, offensive, or indecent manner."

[78] No charges have been laid against Mr Gunston or Ms L. It is not of course for this Commission to determine whether criminal conduct is involved. It is nonetheless desirable to review the evidence as to whether or not the hotel was open for business at the time of the incident.

[79] Section 3 of the Police Offences Act defines a "public place" as including:

"any premises specified in a liquor licence or liquor permit granted under the Liquor and Accommodation Act 1990, that are open for the sale of liquor".

[80] The licence for the Empire Hotel authorises the sale of liquor between 5.00am and midnight on any day.18 There was some evidence during the hearing of additional flexibility in relation to opening hours although this was not particularised.

[81] I have reviewed the evidence of Mr M, Ms B, Ms L, Mr Gunston, Constable Wolfe and Ms F. There are some minor conflicts in the evidence, as would be expected given the effluxion of time and the fact that witnesses had no particular reason at the time to commit this level of detail to memory.

[82] Based on this review I conclude as follows.

[83] The incident occurred some time between 1.30am and 2.00am.

[84] There exists a practice of a few regular customers staying on for a drink after the bar had closed. There were probably two or three customers in the bar at the time of the incident.

[85] The front door of the hotel was unlocked but the main lights had been switched off.

[86] Last drinks had been called and the hotel was in the process of closing, if not officially closed.

[87] It is unlikely that new customers would have been admitted at this time, although the evidence does not allow a definitive conclusion on this.

[88] There were an unspecified number of houseguests booked in for the night.

Alleged Drink Spiking

[89] On 25 February 2002 a Queenstown resident, Ms C, approached the Queenstown Police Station concerning an incident that had occurred in the mall on 22 January. In summary Ms C said she overheard a group of youths boasting about how they had 'spiked" the drinks of both Mr Gunston and Ms L.

[90] The Internal Investigation Unit interviewed Ms C extensively on 26 February.19 Ms C provided a quite detailed recollection of the overheard conversation and also provided a description of at least two of the youths who appeared to be the ringleaders. Ms C said she would recognise the youths if she saw them again but did not know their names. The interview concluded on the basis that Ms C was to contact Internals in the event that she saw the youths again.

[91] Inspector Huxley and Sergeant Adams then proceeded to investigate this allegation. Sergeant Adams said that there were two lines of inquiry. One was to locate the youths as described by Ms C, and the other was to look at the information she actually overheard. A number of interviews were conducted with local shop owners, hotel patrons on the night of the Gunston incident, hospital staff and inquiries were made at the local Police Station.

[92] It is clear from the evidence of Sergeant Adams that efforts to locate the youths ceased very shortly thereafter [probably on 27 February] on the basis that other aspects of the youths' story could not have been true.20 Sergeant Adams agreed that there had been no subsequent follow up with Ms C.

[93] Presumably due to leave commitments, Inspector Huxley's written report was not completed until 18 April although his evidence indicates that a verbal report was provided in late February. His report said in part:21

"As a result of speaking to Mr M, Mr Z, and Ms S, together with the original interviews of Ms L and Ms B, and due to the number of inconsistencies within what the youths were claiming, I was satisfied that what they had alleged, did not in fact occur."

[94] Inspector Huxley's evidence included the following exchange:22

"Were you happy with the extent of the investigation you conducted in relation to the matter?............ Look, I would have liked to have identified the youths if possible, but apart from that, yes, I was.

And in respect of your attempts to identify, were you content that you'd carried out - ?............ Made as many inquiries as reasonable to try to identify them, yes."

[95] In closing submissions Mr Tree said:23

"Can I finally then close by dealing with one issue and that is this, the question of the drink-spiking. At the end of the day, the most bizarre thing about this case is that everybody that has anything to do with the drink-spiking allegation, the internal investigations and some of the police officers at Queenstown Police Station have been called to give evidence. We haven't heard from Ms C and indeed utterly bizarrely, the internal investigators haven't even rung her back to see whether or not the perpetrators, or the people that she overheard, have been subsequently identified by her. It is odd.

You've got Tasmania Police internal investigators, who go down to investigate and allegation of drink-spiking and do virtually everything else but. Whilst we cannot establish that it's more likely than not that drink-spiking occurred, one would have to say that it's the most half-hearted examination of an allegation of serious misconduct on the part of members of the public against Tasmania Police that one could imagine."

[96] I suspect Mr Tree is being overly harsh. I accept that policing involves the prioritisation of scarce resources. From my inexpert standpoint, I would accept that in a stand-alone investigation, the quite improbable, indeed impossible nature of some of the youths' claims, would lead to a reasonable conclusion that the police had higher priorities to pursue. I would however observe that aspects of this investigation, notably the identification of the youths, appeared to lack the same rigour that has attended all other aspects of the Gunston investigation, both pre and post dismissal.

Mitigating Circumstances

[97] A considerable amount of the evidence from both sides went to the issue of workload and associated stress.

[98] Mr Gunston said that since arriving at Queenstown he had been subjected to a workload and off duty environment that gave rise to considerable stress. By implication, this led to the excessive consumption of alcohol on the evening of 12 October, which in turn led to behaviour, which he described as being "out of character".

[99] The source of this stress can be summarised as follows:

  • For the first few months Mr Gunston was the only member within the Division qualified to operate the primary Police vessel at Strahan.

  • His ongoing involvement in a complex and lengthy Supreme Court trial involving abalone fraud. This necessitated several trips to Hobart and regular consultation with the DPP's office.

  • Ongoing staff shortages that regularly necessitated the sergeants rostering themselves on the constables' roster.

  • A ministerial inquiry into an investigation that Mr Gunston considered at the time to be inappropriate.

  • The difficulties associated with living as a single man in a small isolated community with limited opportunity for leisure.

[100] On 3 August 2001 Mr Gunston consulted Helen Spinks, a practising psychologist in Devonport. Ms Spinks provided a written report that reads as follows:24

"1.11.01

Andrew Gunston
26 Bowes Street
Queenstown Tas 7467

Dear Andrew

Re: Consultation on August 3rd, 2001

Please find below information contained in my notes regarding your consultation with me on August 3rd, 2001.

Andrew presented as being very concerned about the stress of work and the impact this was having on relationships. He seemed anxious that work pressure was affecting his ability to work on his relationship with his partner. He was also struggling to handle the feelings of anxiety and panic attacks he was experiencing. Andrew discussed having been involved in a big case at work over the last few years. He said he felt as though he had been very much on his own with it, and that there had been enormous pressure on him. He also talked about currently working on the West Coast, and how he had been taking on extra shifts, resulting in very little time away from work. He feels he can cope with actual incidents at work, but has difficulties with pressures and expectations from management. He said he had been tossing up whether to leave his job in order to escape the pressure because he felt that management were not listening to him, leaving him feeling very much alone. Discussion with Andrew included looking with him at ways to start to manage the stress and anxiety he has been experiencing. He was encouraged to not make any hasty decisions about his future. A further appointment was not made at that time, with Andrew planning to phone to make an appointment in a few weeks when he had the chance to be in Devonport.

Please let me know if you need any further clarification.

Yours sincerely
Helen Spinks"

[101] Mr Gunston expressed how he felt in the following terms: 25

"It felt like I was burning the candle at both ends. I felt consistently as if I had a workload that wasn't reducing and in fact I felt as if my direct senior officer, my inspector, was in fact loading me up with more work. I expressed my concerns to him about staff shortages in Queenstown. On a number of occasions I requested that we have secondments down from Burnie in order to properly operate the five man constables roster and to a large extent - which can be borne out by Helen Spinks, the psychologist that I approached - I felt like management wasn't listening to me, my concerns about the conditions on the west coast and the staff shortages and certainly the duties that were being loaded onto me."

[102] During the week commencing 8 October Mr Gunston approached Inspector Bonde with a request for a transfer out of Queenstown. He said that his voluntary transfer to Queenstown had been hasty and ill considered. Inspector Bonde subsequently supported this application.

[103] A number of witnesses gave evidence relating to the issue of workload and stress. Their evidence can be summarised as follows:

  • The workload at Queenstown was relatively light compared with comparable stations elsewhere.

  • Staff shortages were the norm in most stations given the incidence of leave, sickness etc.

  • It was recognised that the vessel at Strahan did impose a significant additional responsibility initially. However that ceased to be a major issue once Constable Scarafiotti became qualified. The records indicate that there had only been one trip since 18 June 2001.

  • Sergeant Sheahen had assumed many of the administrative functions normally performed by the officer-in-charge.

  • The abalone trial had concluded in July 2001.

  • Mr Gunston had not told his senior officers that he was suffering from stress.

[104] I am satisfied that Mr Gunston genuinely felt that he was under stress to the point where he had chosen to seek a transfer out of Queenstown at his own expense. Indeed he had raised the question of a transfer to Hobart with Commander Tully some time in September, prior to the formal application being lodged in October.

[105] I am equally satisfied that, with the possible exception of the Strahan vessel during the first three months, Tasmania Police did not do anything in a management or policy sense, which might leave them open to criticism insofar as Mr Gunston's stress levels are concerned.

[106] Stress may have been the driver that led to the excessive consumption of alcohol, but it is not an explanation or excuse for the behaviour that then followed on 13 October.

Mr Gunston's Previous Record

[107] Commissioner McCreadie said that in reaching his decision to dismiss Mr Gunston, his entire dossier had been reviewed. Nonetheless, the compelling or dominant issue that led to the dismissal was the incident on 13 October. Commissioner McCreadie denied that there was a cumulative factor, or that the dismissal was linked to any prior misconduct.26

[108] The show cause notice does however make reference to the dossier and to previous warnings. It is therefore necessary to review this material.

[109] In 1987 Mr Gunston was informally counselled for an off duty incident at the Derwent Bridge Hotel. This involved a flippant, but inappropriate comment in the visitors' book.

[110] In November 1989 Mr Gunston, in the course of conducting a random breath test on a female motorist, "used language suggestive of sexual connotations". He was subsequently subjected to a disciplinary hearing, fined and transferred to non-operational duties. He was also "warned that any future incident of a similar nature would raise his 'suitability' to remain a member of the force".27

[111] The six-month report submitted following this incident reads in part:28

"Constable GUNSTON is an extremely well presented and well spoken young member, who has carried out his duties at the Information Bureau in an efficient manner. He is enthusiastic and works on shift without any direct supervision.

The Constable gets along very well with the staff at the Bureau, both police and State Service.

This members' conduct has been excellent and although a number of females are employed in the Bureau there has not been the slightest hint of misconduct on the Constables' (sic) part."

[112] It would appear that he subsequently returned to operational duties and in 1991 successfully completed the senior constables and detective training courses.

[113] In March 1992 Mr Gunston was convicted for a drink driving offence.

[114] In August 2001 Mr Gunston was counselled in relation to a largely domestic incident that occurred whilst he was on King Island. This also involved the unauthorised use of a police vehicle after consuming alcohol. In the scheme of this case this counselling assumes some significance and is reviewed in greater detail below.

[115] Throughout his career Mr Gunston also received a number of commendations, summarised below:

  • Superintendent's commendation re conviction of DCS and RJK

  • Certificate of High Commendation re Port Arthur tragedy

  • Commendation re installation of listening device

  • Commendation re riots at Queenstown

  • Commendation re arrest following burglary

  • Commendation re evidence in dangerous driving case

  • Letter of appreciation, King Island Tourist Development Association re aircraft disaster

  • In October 1997 successfully completed the sergeants qualifying examination. The assessment comments in each area were entirely positive.29

[116] On 7 July 2001 Inspector Bonde completed a "Performance Feedback" for Mr Gunston. Whilst this document contained a number of unremarkable comments on aspects requiring attention, it did contain a number of positive observations including:30

  • "High levels of communication skills when dealing with the public

  • Displays a high level of assistance to subordinates in operational duties

  • Displays a professional image in reply to the community requests and needs

  • High level skills in receiving and managing complaints received to the satisfaction of the public"

[117] On 21 February 2002 Internals interviewed Inspector Bonde. Relevant to Mr Gunston's performance record, the following exchange took place:31

"GHEDINI Alright, if it's alright with you I'll get to that later on in the interview Inspector, but with regards to his general work ethic what was that like since he transferred to ... since the Sergeant had transferred to Queenstown?

BONDE Yeah ... Sergeant GUNSTON is very ... in an operational field was very capable, I had full confidence in him in his general patrol duties and his supervision of the staff whilst on duty and found him to be ar ... fairly experienced and reasonable capable in that area.

GHEDINI Okay, so as far as his work ethic was concerned you had no problems with him?

BONDE No, I didn't, no."

[118] In his evidence Inspector Bonde said under cross-examination:32

"And in fact am I correct in saying that you've got no quibble with his performance as a sergeant at least up until 13 October 2001 in Queenstown?............ From an operational point of view?

Yes?............ No. No quibbles."

[119] And later when commenting on the Performance Feedback, the inspector said:33

"Yes, sir, in my experience with him, that he communicated well with the public in his operational capacity. Again when the public made contact with him, my observations and my comments were that he dealt with them very well - dealt with the members of the public who had any issues they wanted to raised, that he displayed - he did display high levels of communication skills. When dealing with them he quite often I noted where members of the public seemed to be put at ease with their concerns with Sergeant Gunston's dealings with them."

]120] Leaving aside the status of the counselling in August 2001 [see next] the picture emerges of a competent operational police officer, well regarded by his subordinates and the public.

[121] There have, however, been a number of skirmishes with authority of which at least the November 1989 incident was particularly serious. He was unquestionably given a serious, perhaps final, warning as a consequence. His penalty included a transfer to non-operational duties, at the end of which he received an extremely positive review from his supervisory officer.

[122] This incident and warning was specifically referred to in the Commissioner of Police's show cause notice. There can be no doubt that this incident remains a relevant part of Mr Gunston's dossier. The reality is however, that it is now 12 years on. He paid a price at the time and responded positively. Subsequently Mr Gunston has been promoted to Sergeant and appointed to positions of responsibility.

[123] In all the circumstances the relevance of this incident and warning in the context of alleged serious misconduct in October 2001 is significantly diminished.

Was There a Final Warning?

[124] On 24 August 2001 Commander Tully counselled Mr Gunston in relation to allegations made by Mr Gunston's former de facto partner whilst he was stationed on King Island. Internals had investigated these allegations. The more serious allegations relating to assault and damage to property were found not to be substantiated.

[125] The requirement for the counselling had been conveyed to Commander Tully by correspondence dated 15 August 2001 from the Acting Deputy Commissioner. Relevantly, the letter said:34

  • "Failing to leave Ms B's residence on 28 January 2001 when requested to do so and using a police motor vehicle for private purposes and outside the scope of authority given on 28 January 2001 and acting in a manner likely to bring discredit on the Tasmania Police Service by driving a police vehicle after having consumed intoxicating liquor.

  • Using a police motor vehicle for private purposes and outside the scope of authority given on 3/4th January 2001 and acting in a manner likely to bring discredit on the Tasmania Police Service by driving a police motor vehicle after having consumed intoxicating liquor.

The Sergeant should be further advised in the strongest terms that his behaviour was unprofessional and well below my expectation of a police officer of his rank and experience. Please inform him that a recurrence of any similar behaviour will result in him being asked to show cause why the Commissioner should retain confidence in him to perform the duties at the rank of sergeant."

[126] Mr Gunston said that he contested the allegations, even those that Internals had found to be sustained:35

"If those allegations had been substantiated, dismissal was an option in that instance, wouldn't you expect?............ No, I disagree, sir. To the end, I disagreed with the determinations, even the final determinations reached by internals. If those matters were sufficient enough to lead towards dismissal, then I would have fought any charges because, in essence, it was my opinion that the allegations were vexatious anyway.

I'm not disputing that, what I was suggesting was, that if they had been substantiated they could have led to your dismissal?............ Possibly, yes.

They could have led to you being charged and perhaps convicted of criminal charges?............ Well, I did disagree with that.

I understand your position, yes. In fact, Commander Tully when he counselled you on 24 August last year made the seriousness of the allegations clear to you, didn't he?............ No, he did not.

He pointed out to you that you could have been dismissed and standing in the dock facing criminal charges?............ That's totally incorrect. I've read that report by Mr Tully and -

I'm not referring to his report?............ No, that wasn't said.

Sorry?............ That was not said.

Commander Tully will give evidence later at these proceedings to the effect that he did make it clear that you were fortunate, that you could have been dismissed and facing criminal charges?............ Well, that's incorrect.

He advised you to avoid any repetition of conduct of that nature, that it could lead to your dismissal?............ No, that's totally incorrect and I would have liked the commander to document that somewhere. If he's saying that is the case, then that should have been adequately documented somewhere, either on the counselling form or correspondence afterwards.

You know he is saying that is the case, don't you?............ I'm aware he's saying that's the case.

The commander advised you to keep your head down?............ No. His expression was, keep your nose clean. I would keep your nose clean if I was you. That was simply the expression he used."

[127] Later, Mr Gunston said that he signed the form as an acknowledgement that counselling had taken place, not as an endorsement of the contents of the form. This was confirmed in Commander Tully's evidence.

[128] Commander Tully said the counselling session took "no longer than five minutes" to complete.

[129] Mr Gunston was not shown or given a copy of the correspondence from the Acting Deputy Commissioner. He was given a Counselling Report, which contained the two allegations that had been found by Internals to be substantiated. There is no reference in the document to a warning of any description.36

[130] The Commander's evidence on the counselling session is as follows:37

"Did you, on that occasion, give any warning to Mr Gunston concerning his future behaviour?............ Yes. Just going through what happened. I had a counselling sheet that had been supplied to me with the documentation from the Commissioner's office. Mr Gunston came into my office. I told him that he was to be formally counselled in relation to his conduct on King Island. I gave him the copy of the counselling report, asked him to read that. When he did so I said to him, that he needed to consider himself lucky, that on this occasion he was not sacked and standing in the dock on several charges. Mr Gunston expressed some concerns about the allegations that had been made by his ex partner or ex de facto and mentioned that he believed she may have been exaggerating some of them and he raised some concern about the conduct of the investigation along the lines of it perhaps not being as thorough as he would have liked. I said, if he liked he could make a note of those concerns or any other issues that he wanted on the space provided on the form or he could actually write those on a separate document if he wanted, which I could attach to the form and return it to the Commissioner's office. I offered him the opportunity of going to another office to do that. He basically said, where does the counselling leave me, or where does this leave me. I said, that he needed to consider it his first and last chance and that his future with the department depended on him keeping out of strife and going back to Queenstown and demonstrating that he could perform as a sergeant. He asked what I thought he should do in relation to his concerns and I said, it was a matter for him. He indicated that there probably wasn't much point, that he was probably making waves. There was some additional conversation about him starting his holidays, I think, the following week. I basically rounded the conversation off, or the counselling off with a statement, again along the lines that he needed - when he'd completed his leave, he needed to go back to Queenstown, keep his head down basically, keep out of strife and he should be okay. He signed the counselling form and I had a conversation with him about that. He in the end elected not to write any comments on it. I asked him if he was content to sign that document on the basis of the counselling session being conducted and he agreed to sign it."

[131] Following the counselling session the completed form was returned to headquarters for inclusion in Mr Gunston's dossier.

[132] There is clearly a conflict in the evidence as to whether a warning was given. This same conflict emerged when Commander Tully was asked to comment on Mr Gunston's response to the "show cause" notice.38

[133] I am not in a position to prefer one version of events to the other. I can only conclude that there was a misunderstanding of some sort. I would observe, however, that if Commander Tully's version is to be accepted, then he exceeded the direction given to him. The letter from the Acting Deputy Commissioner states:39

"Please inform him that a recurrence of any similar behaviour will result in him being asked to show cause why the Commissioner should retain confidence in him to perform the duties at the rank of sergeant." [my emphasis]

[134] Clearly this expression contemplates the prospect of demotion and in my view it was neither open nor appropriate for the Commander to elevate the warning to a higher level.

[135] I also note that there is no documented record of any warning being given, whether it be in the counselling report or even a diary note by the Commander. This can be contrasted with the very clear written record of the warning that followed the 1989 incident. For an organisation that is quite meticulous on documentation, such an omission seems extraordinary.

[136] It would also appear that Mr Gunston's immediate supervisor, Inspector Bonde, was unaware that a final warning had been given.40

[137] I am satisfied that, had Mr Gunston understood the counselling session to constitute a final warning, he would have taken steps to contest the veracity of the allegations made against him.

[138] In all the circumstances I am unable to conclude that the counselling session on 24 August included the issue of a final warning, upon which Tasmania Police could rely in the event of subsequent misconduct.

[139] There is one further aspect arising from the King Island incident.

[140] On 15 August 2001 Commander Wild forwarded a report to the Acting Deputy Commissioner concerning the outcome of the Internals investigation. It was this report that in turn led to the instruction to Commander Tully to counsel Mr Gunston.

[141] This report concludes with the following comment:41

"Sergeant Dooley made a further recommendation that consideration be given to Sergeant Gunston attending a counselling session with Doctor Ryan. The purpose of such a session to assess the Sergeant's level of alcohol consumption and the impact (if any) such consumption may have on his work performance. Sergeant Gunston has a prior conviction for exceeding 0.05% in 1992, and given some of the claims made by Ms B relating to the Sergeant's "binge drinking", it may be a matter you consider appropriate."

[142] It is clear from subsequent evidence that the recommendation, initiated by Sergeant Dooley and passed on by Commander Wild, was never acted upon.

Police Code of Ethics, Off Duty Behaviour, Public Perception and Confidence

[143] Much has been written about standards of behaviour expected of police officers and, in particular, standards that apply for off duty behaviour. This in turn, it is argued, has a strong connection with the notion of public confidence.

[144] In Police Ethics, it states:42

"Professional codes of ethics have as much to do with actual public attitude and acceptance as realistic ethical performance. In terms of the professional occupational model, it is important that the public has confidence in the existence of ethical standards and credible mechanisms to deal with breaches of those standards."

[145] A similar view is found in Ethics and Values Training: A Multifaceted Approach:43

"One of the areas of greatest concern is public opinion. Public opinion involves more than simply how people think of you or your organisation. It is the single most important factor in the survival of your organisation. If the public thinks you are ethical in your tasks and reflect the values of the community; your organisation will be supported. If they perceive that you are not, then the battle is lost in terms of finances and public support for your mission. Without public support, a law enforcement agency cannot function."

[146] In relation to off duty behaviour, The Evolution of Law Enforcement's Code of Ethics states:44

"Police officers will behave in manner that does not bring discredit to their agencies or themselves.

A police officer's character and conduct while off duty must always be exemplary, thus maintaining a position of respect in the community in which he or she lives and serves. The officer's personal behaviour must be beyond reproach."

[147] Turning to the law, in Rose v Telstra, Ross VP discussed in some detail the issue of out-of-hours conduct and connection with the employment contract. He said:45

"It is clear that in certain circumstances an employee's employment may be validly terminated because of out-of-hours conduct. But such circumstances are limited:

  • The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

  • The conduct damages the employer's interests; or

  • The conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee's out-of-hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:

'I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.' "

[148] And later:46

"The position which an employee occupies may also impact on the extent to which misconduct in his or her private life can be said to impact on their employment. In Henry v Ryan a police officer found loitering in the grounds of a girls school while off duty and wearing only his underpants was guilty of misconduct and terminated. In the course of his judgment Burbury CJ said:

'Many of the powers of a police officer are exercised by him by virtue of the independent public office he holds and cannot be exercised on the responsibility of any person but himself. His duties are of a public nature and over a wide range of matters affecting the public he exercises original and not delegated authority ... Discreditable conduct in his private life may therefore clearly affect his status and authority as a police officer in the discharge of his public duties and in his relations with the public.

Misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue in his office or profession.'

In Allan v Commissioner of Australian Federal Police Neaves J expressed the view that 'conduct which amounts to a breach of the criminal law will in many cases of its very nature be conduct that would be regarded as disgraceful and improper if engaged in by a police officer'.

In this context it is important to note that Courts have often observed that members of police forces are engaged in a very distinctive form of public service. The discipline expected of, and extracted from, police officers reflects the particular public character and importance of policing and police duties.

In Police Service Board v Morris Brennan J commented on the significance of police discipline in this way:

'The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardise public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.' "

[149] Ross DP went on to review a range of judgments including, Orr v University of Tasmania, Wearne, R v Teachers Appeal Board and Bercove v Hermes. He concluded:47

"In each of the cases referred to there was a clear connection between the employee's out-of-hours conduct and their employment. The conduct was incompatible with the employee's duty as an employee or was likely to cause serious damage to the employment relationship."

[150] In Roach v Qantas, Cartwright SDP reviewed a number of earlier judgments and observed:48

"Accordingly, the Full Bench recognises out of hours conduct may give rise to a valid reason for termination where there is a relevant connection to the employment or where the conduct is of a nature (e.g. intrinsically improper) that it is reviewable although it took place outside the course of employment."

[151] In the context of the instant case, Commissioner McCreadie said:49

"Commissioner, can you just outline your expectations concerning the conduct of police officers both on duty and off duty?............ Well, it's commonly held that the community entrusts law enforcement officers with extraordinary powers that don't flow to most other members of the community and as a result of that I've always held the view that the community is entitled to expect a very high standard of behaviour and to be able to maintain competency in individuals and the organisation to manage their responsibilities around the oath of office of constable. So, I think, because the opportunity to be a sworn member is a voluntary act, that it is commonly held that you forego the right to act in an improper way at any time.

So the standards you expect of police officers, they are comparable in respect of off duty behaviour to on duty behaviour?............ Yes. When I say that, I'm talking about conduct that's likely to bring the service into significant disrepute. That's really the issue, I guess. I'm not moralising. It's about maintaining standards that won't and the expectation is that that is a full-time commitment."

[152] During the evidence of the Commissioner of Police, reference was made to the Code Of Ethics required to be sworn by all classes graduating from the Police Academy. This reads as follows:50

"As a member of the Tasmania Police Force, I will -

carry out my duties justly without fear, favour or affection, malice or ill will;

act honestly and with the utmost integrity;

make every effort to respect and uphold the rights of all people in the community, regardless of race, social status or religion;

strive for excellence and endeavour to improve my knowledge and professionalism;

keep confidential all matters which I may learn in my official capacity except as necessary in the course of my duties;

exercise restraint and self-discipline in word and deed both on and off duty;

never use more force than is necessary in the performance of my duty;

not participate in any activity which is improper or which can be construed as being improper;

not misuse my office for personal gain;

accept responsibility for my own actions and for acts which I may order;

and I accept the desirability of these ethics as an integral part of my personal and professional life."

[153] Commissioner McCreadie acknowledged the use of the word "desirability" in the last sentence, but suggested that the teaching around this would lead to a different conclusion.

[154] From the evidence of virtually all the police witnesses, it is clear that the requirement for high standards in all facets of police life has a heavy emphasis in training and is well understood by police officers. I also accept that Inspector Bonde reinforced this teaching, particularly as it applied to off duty behaviour, for all police officers stationed at Queenstown, including Mr Gunston.

[155] W hat is less clear is how these "standards" are defined. On any reasonable test, the required standard for off duty behaviour is something short of monastic teetotalism.

[156] The evidence in respect of the public reaction to the 13 October incident is mixed.

[157] Ms B said that immediately after the incident, the reaction of the people in the bar was that of laughter and that it was a joke.51 Constable Wolfe said that over the next week "everyone was laughing about it at the station".52

[158] Sergeant Sheahen said he had encountered a range of views during his "walk and talk" stints.53

"There were the odd comments from different store owners or proprietors - people working the store. Some people saw the funny side of it and were ridiculing us at the station, stirring us, laughing and joking about the whole matter. Silly thing for a police officer to do. Others quite disgusted that a police officer would actually, allegedly, do such a thing."

[159] He said that a couple of members of the Neighbourhood Watch group were quite "disgusted and appalled by the situation". He said that whilst Mr Gunston had supporters in the community, they were "very much in the minority".

[160] Inspector Bonde said the incident was a source of discussion amongst members of the public:54

"What was the tone or nature of the comments?............ Basically, we were a laughing joke the police force at Queenstown, that Sergeant Gunston's incident in everyone's opinion - I won't say everyone, the people that spoke to me about it, were disgusted at it."

[161] Given the nature of the incident, the range of views expressed is not surprising. Care must, however, be exercised in how this should be interpreted. With very few exceptions, those expressing a view, including police witnesses, are relying on a very second hand version of what actually occurred.

[162] It is of interest that, despite the widespread level of awareness in the community, no member of the general public chose to lodge an official complaint in the 10 days following the incident. The complaint that was ultimately lodged on 23 October was, I suspect, motivated more by revenge than moral outrage.

Misconduct in the Police Profession

[163] In a paper titled Professionalism in Policing v Corruption, G W Crooke QC observed:55

"Where disciplinary systems exist they have been categorised by the Courts not as a system to inflict punishment but "to protect the public, to maintain proper standards of conduct and to protect the reputation of the organisation."

[164] And later:56

"Overall commissioner's confidence should be exercised in extreme cases. Generally there should be a presumption that a trained police officer has the potential to perform professionally. In this context the general approach to any shortcoming would be by way of remedial assistance rather than punishment, the common ground being to achieve improved performance."

[165] Commissioner McCreadie said in his evidence:57

"You know, history has shown that we're a very forgiving organisation and that a whole range of things have been forgiven. It really depends on the public reputation, the public confidence, the public damage, and if all of those things were absent then I probably would have had a softer view of my role and my responsibility to the community, but those opportunities were not afforded to me in this circumstance."

[166] It is axiomatic that there are degrees of misconduct. Unfortunately little was put forward during the hearing which would enable me to form a view as to where Mr Gunston's behaviour on 13 October stands in the hierarchy of misconduct within Tasmania Police, and which has attracted penalties ranging from counselling through to dismissal.

[167] It is clear however that there is a history of police officers maintaining employment notwithstanding a conviction for driving with a blood alcohol reading in excess of the prescribed maximum.58 Commissioner McCreadie did however say that he would be "disinclined to simply forgive and move on after second and subsequent [DUI] offences".

[168] Whist each case must be considered on its merits, a review of the judgments relating to police misconduct is of interest:

Lee v Fletcher

Unnecessary force in arrest; lack of responsibility in discharging duties; consumption of alcohol whilst on duty; insubordination, indecent and threatening language directed at a superior officer; criticism by a judge and magistrate. Dismissal upheld.

Commissioner of Police v Rosevear

Off duty Constable, unprovoked acts of physical violence, in concert with another constable, against four members of the public. Dismissed by Commissioner; altered by Disciplinary tribunal to reduction in salary, confirmed on appeal.

O'Rouke v Miller

Off duty probationary constable; misuse of police badge to gain entry to a shop; obscene and insulting language to two females. Dismissal confirmed on appeal.

Owens v NSW Police Service

Probationary Constable; forged supervisory officer's signature on a validation document; fined and probation period extended; later when off duty refused police request to leave scene of an altercation and swore at police officer; arrested; subsequently dismissed; dismissal found to be harsh; compensation ordered.

Bartlett v NSW Police Service

Constable who maintained improper association with a known criminal and failed to identify conflict of interest. Dismissal confirmed.

Cook v Commissioner of Police

Off duty Constable who became involved in a fight, causing injury; later became involved in another fight in presence of police; directed obscene language at female police officer and female passenger in police vehicle; dismissal confirmed.

Henry v Ryan

Constable whilst off duty found loitering in the grounds of a girls school dressed only in underwear; convicted of misconduct; appeal rejected.

Myers v Police Service of NSW

Probationary constable; performance and integrity issues; failure to respond to two Performance Enhancement Programs; terminated; found to be not suited to police service and dismissal confirmed.

Hartley v O'Loughlin & Anor

Probationary Constable who, after consuming alcohol, was involved in a car accident; left scene with the view of avoiding breathalyser test; dismissal confirmed.

Re Watson

Police Constable who misused police service revolver by pointing loaded revolver at a colleague on two occasions, and cocking it on one; dismissed; penalty found not to be manifestly excessive, but observed that every misuse of firearm would necessarily cause such a drastic result.

In Hollingsworth v Commissioner of Police, a student police officer was summarily dismissed for failing to reveal at the time of interview her previous activities as a stripper and a prostitute. She successfully appealed and was reinstated.

[169] The following extracts from this judgement is enlightening as to off duty police behaviour, in New South Wales at least:59

"In the period between March 1990 and May 1992 the appellant worked occasionally as a stripper, not in any club or establishment but at functions organised by and attended by police officers. At one such function in March 1990 the appellant performed before about 300 police officers at a fundraising function for members of the NSW Police Service to attend the Police Olympics in Canada. Thereafter, the appellant attended and performed as a stripper at about 30 police functions at the request of members of the Police Service stationed in the western suburbs area. In May 1992, the appellant organised a show for police officers at Waverley and Bondi Police Stations which involved audiences of at times in excess of 300 police officers who after the shows paid for sex with either the appellant or others who were performing. The appellant ceased involvement in any stripping activities in about May 1992."

[170] And later:60

" '... the treatment of Ms Hollingsworth is in contrast with the treatment by the Police Service of a male police officer who 'moonlighted' as a professional stripper, arriving at a function for women aboard a boat in his police uniform and stripping off and also posing for a women's magazine: he was counselled for such activities but has not been dismissed from the Police Service. Also, according to Mr Moroney, the position with the police officers who hired Ms Hollingsworth as a stripper and/or a prostitute is still under review since the middle of 1995: they have to date neither been counselled nor dismissed ...' "

Other Issues

[171] There are certain other issues that need to be considered.

[172] The "show cause" refers to a "complaint of misconduct" received from Ms B. Similarly the initial Internal Investigations report dated 14 November 2001 identifies Ms B as the complainant.61. From the evidence it is clear that Commissioner McCreadie was under the impression that Ms B had lodged the complaint.62

"Your notice refers to a complaint received from Ms B. Was that your understanding?............ Yes.

That she was - ?............ She was actual person who brought it to our attention in the first place, is my understanding."

[173] This clearly is not the case. On the evidence of Constable Wolfe, no complaint was lodged on 13 October. The Chronology of Events63 submitted on the Commissioner's behalf correctly states that the complaint was lodged on 23 October, the source of which is clearly identified in the Internals report of 14 November.

[174] Ms B was interviewed on 24 October. A review of the transcript of interview reveals that Ms B was most reluctant to make a statement, let alone initiate a complaint.64

[175] I understand that it is not unusual for the Deputy Commissioner to be named as the complainant, particularly when an information source does not wish to be identified. There is no evidence to suggest that this was the case in this matter, but either way, I would have no difficulty had the Deputy Commissioner been named as the complainant.

[176] I raised this issue during the hearing and the response did not ameliorate my concern. Of course the identity of the complainant has no bearing on what actually occurred. Nonetheless I remain puzzled as to why Ms B was so identified. Why not Mr M?. After all, he was the first witness to the incident.

[177] Given that the Commissioner of Police, even at the time of the hearing, understood the complaint to be initiated by Ms B, this assumes some significance.

[178] On the question of location, Commissioner McCreadie was under the impression that Mr Gunston and Ms L would have been observable by a person moving through the foyer of the hotel:65

"So a person travelling through the general foyer area of the hotel would have been able to observe them?............ Well, I think that that's a reasonable proposition, yes.

Are you aware - or I suppose it follows from that - that in fact the evidence is incontrovertibly the opposite of that?............ No."

[179] I am satisfied on the evidence that Commissioner McCreadie's view was incorrectly held.

[180] Commissioner McCreadie was also unaware that there are steps leading to the coffee lounge. 66 He was however correct in his understanding that access to the coffee lounge was in no way blocked off.

The Investigation

[181] On any measure the investigation conducted by the Internal Investigations Unit was thorough. The only possible exception to this description being one aspect of the drink spiking investigation.

[182] Within the context of police procedures, the rules of natural justice have been observed. Mr Gunston knew what the allegations were and had the opportunity to respond. The fact that there was no face-to-face meeting between Mr Gunston and the Commissioner is unusual but certainly not fatal to a fair process.

[183] Ordinarily I would have some concerns that the Commissioner accepted the show cause counter reports of Commander Tully and Inspector Bonde without reference back to Mr Gunston. However Commissioner McCreadie made it clear that, by necessity, he operated on a management, as distinct from a quasi-judicial, basis. The Commissioner acknowledged that with this approach, the veracity of the material before him might be subject to review in another forum.67

Conclusions and Findings

[184] The onus of proving the existence of a valid reason falls squarely on the employer.

[185] In terms of off duty conduct, the law is well summarised in Rose v Telstra, discussed earlier in this decision. In short, there needs to be sufficient connection between the conduct and the nature of the employment.

[186] Consistent with the judgment in Allen v Commissioner of Australian Federal Police, conduct which amounts to a breach of the criminal law would, in the case of a police officer, very likely constitute a valid reason for dismissal. But of course in the instant case we do not have a breach of the criminal law. No charges have been laid and all we have is an assertion that the law has been broken.68

[187] This to me creates a quite unsatisfactory situation. The respondent asserts that there is criminal conduct involved but does not press charges. This Commission clearly is unable to make a finding on this question. Hence the allegation simply hangs in the air and Mr Gunston is unable to mount a defence through the lack of an appropriate forum. In Acts of Institutional Self Defence, reference is made to Allan v Commissioner of Australian Federal Police where Neaves J stated:69

"... Where the Commissioner is contemplating both criminal and disciplinary proceedings in respect of the same conduct, the criminal proceedings should be heard and determined before any hearing on the disciplinary proceedings."

[188] In the instant case it would be dangerous and indeed wrong to proceed on the assumption that criminal conduct is involved.

[189] Of course a criminal element in the off duty conduct is not a prerequisite for a finding as to the existence of a valid reason for dismissal, but it would tend to put the issue beyond doubt.

[190] Mr Tree submitted that the act was intrinsically private in nature and did not involve criminal behaviour. Whilst it did not occur in a bedroom, when all the circumstances are considered, it was no different to the same activity taking place out of doors, such as camping in a national park. Such circumstances, he submitted, do not comprise a valid ground for termination.

[191] I accept, without hesitation, that the critical issue in this case is not the behaviour itself, but the location in which it occurred. The substance of Mr Miller's case is that the act did not take place in private and hence Mr Gunston's behaviour clearly provided a valid reason for summary dismissal for misconduct.

[192] Mr Tree submitted that if it had to happen outside a bedroom, it was not a bad second option. He said:70

"It was a sensible place. Sensible in the sense that one could understand it's a drunken activity that these people are engaging in. It's not associated with any exhibitionism. It's not associated with any abuse of his position as a police officer. It's not intended to revolt or to in any way confront members of the public or other patrons of the hotel. It was intended to be a private act. It wasn't intended to be observed and in my respectful submission, that takes this out of the run of the mill public conduct cases and puts it into a totally different category, namely, private conduct which is unfortunately observed and that's quite a distinction from the cases which the Commissioner appears to be intending to rely upon, at least those that he's given to this commission."

[193] In Sangwin v Imogen, Von Doussa J said:71

"it has been held that a 'valid' reason exists where the employer had a 'sound, defensible or well founded' reason for termination of the applicant's employment ... these dictionary definitions for the word 'valid', whilst wide enough to include a reason based on an honest belief held on reasonable grounds ..."

[194] In this context there could be little argument with the notion that proven and deliberate offensive behaviour by a police officer would constitute a valid reason for dismissal.

[195] I have absolutely no doubt that Commissioner McCreadie had an honest belief as to what occurred on 13 October. There are however two aspects which bring in to question whether this belief was based on reasonable grounds.

[196] Firstly Commissioner McCreadie was unaware that there is a flight of steps leading to the coffee lounge. He was also clearly, and indeed wrongly, under the impression that Mr Gunston and Ms L were observable from the hotel foyer. If that were the case, the likelihood of detection would have been relatively high. In actuality, the likelihood that they would be seen was low, perhaps even remote.

[197] Secondly, Commissioner McCreadie was clearly under the impression that it was Ms B who first drew Police Headquarters' attention to the incident, and lodged the complaint. This was not the case.

[198] It is also clear that Commissioner McCreadie continued to hold these views at the time of the hearing, despite the review process that had been undertaken.

[199] Whether a better understanding of these two factors would have caused Commissioner McCreadie to modify his decision is unknown. However, as this case turns largely on the issues of 'location' and 'public confidence', the misunderstandings on Commissioner McCreadie's part assume considerable significance.

[200] In North v Television Corporation Ltd, Smithers and Evatt JJ said:72

"For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 2 All ER 285 at 287 and 289, are in point. He said:-

'To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

...

'I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions.' "

[201] Looking at the facts of this case, I am unable to conclude that the behaviour constituted a "deliberate flouting of essential contractual conditions".

[202] The behaviour was not calculated to deliberately offend or confront. It did not involve a misuse of the police badge, nor can it be argued that the public was put at risk.

[203] Simply stated, Mr Gunston and Ms L took inadequate steps to conceal an otherwise perfectly lawful and normal act. It was foolish, indeed stupid behaviour, which demanded severe disciplinary action. It did not, however, constitute grounds for a valid reason for dismissal.

[204] Leaving aside the matter of "valid reason" there is one further aspect that causes me to conclude that dismissal is a quite disproportionate response to the behaviour in question.

[205] I accept without hesitation that a duty falls to police officers to maintain "high standards" in their off duty activities. With that expectation a heavy duty also falls on the Department to protect officers and provide assistance and support for those who may be 'at risk'. Indeed Commissioner McCreadie acknowledged this in pointing to the extensive infrastructure and support services available within the Department. Dismissal should be viewed as a last resort [see Crooke p. 10].

[206] As a consequence of the investigation of the King Island incident, Sergeant Dooley made a recommendation that Mr Gunston attend Dr Ryan [Police Psychologist} concerning alcohol consumption. This was passed on to the Acting Deputy Commissioner but not acted upon. In these circumstances it strikes me as unfair that, in the first incident involving excessive alcohol consumption since the August counselling, Mr Gunston is dismissed. It is noteworthy that Mr Gunston, in his response to the show cause notice, acknowledges the desirability of professional counselling in regards to the use of alcohol.

[207] I conclude that, whilst Mr Gunston's behaviour clearly called for strong disciplinary action, summary dismissal was not within the range of penalties reasonably open to the Commissioner.

Remedy

[208] Where a dismissal has been found to be unfair, the primary remedy available to this Commission is reinstatement or re-employment. It is only if this is found to be "impracticable", that the question of compensation may be considered.

[209] Mr Miller opposed reinstatement. He said:73

"Having regard to all of these matters, in particular the unique obligations and responsibilities of police officers, the unique position of the Commissioner of Police and all of the circumstances including the review, the other concerns of the Commissioner and the question of further investigations, it's my submission that you should be positively satisfied that reinstatement of Mr Gunston to Tasmania Police would be impracticable."

[210] On the practicality of reinstatement, Commissioner McCreadie acknowledged that Mr Gunston could be placed in a non-operational area, which would not require contact with the public. There are however no areas whereby he would not be in contact with other officers and state servants. He said:74

"... there are concerns within the organisation that the behaviour was so unprofessional that people don't want to work with Mr Gunston any more as a sworn member. It's a consideration."

[211] In Perkins v Grace Worldwide there is reference to Abbott-Etherington v Houghton Motors whereby Marshall J found that reinstatement of a managerial employee was not impracticable despite a claim by the principals of the respondent that they had lost confidence in her. He said:75

"In almost every conceivable case where the Court has found that an employer has terminated the employment of an employee in contravention of Div 3 of Pt VIA of the Act it is likely that an employer will form the view that harmony at the workplace will be affected by the return to work of the employee it has terminated. Such a happening, I believe, is unexceptionable. In my view it is no more than a view that reinstatement is 'inconvenient' or 'difficult' if an employer says that harmony may be affected by an employee's return to work in such circumstances ..."

[212] Tasmania Police is a large organisation. Apart from the statement above from Commissioner McCreadie, there is no direct evidence that other officers would not cooperate should Mr Gunston be returned to the workplace.

[213] The behaviour of Mr Gunston certainly calls for a substantial disciplinary penalty.

[214] I propose to order re-employment from a prospective date. In terms of lost salary, this represents a very substantial 'fine' of more than $30,000.

[215] If it was within the Commission's power I would also order that Mr Gunston be demoted to the rank he held immediately prior to his promotion to a sergeant. I suspect however that such an order might constitute an "appointment" and thus be beyond power. I note, however, that this option remains open to the Commissioner of Police.

[216] The future role and location of Mr Gunston is of course a matter entirely for the Commissioner within the bounds of normal police procedures.

[217] In conclusion I observe that Mr Gunston has in the past responded positively to a reallocation of duties and there is reason to believe that this would occur again.

ORDER

Pursuant to s.31 of the Act I hereby order that Andrew Scott Gunston be re-employed by Tasmania Police at the rank and salary applicable immediately prior to his termination, such re-employment to take effect from 8 July 2002.

I further order that Mr Gunston's solicitor initiate discussions with the Commissioner of Police, or his delegate, with the view of securing an orderly return to the workplace.

 

Tim Abey
COMMISSIONER

Appearances:
Mr P Tree, with Mr C Green, for Mr A S Gunston.
Mr M Miller, with Mr F Ogle, for the Commissioner of Police.

Date and Place of Hearing:
2002
May 1, 2, 3, 6, 7, 17, 20, 27, 28
Hobart

REFERENCES

Judgments and Decisions
Applicant and Respondent, AIRC, Drake DP 20/05/1998 Print P9973
Applicant and Respondent AIRC, MacBean SDP, Duncan DP, Deegan C, 1/02/1999, Print R1221
Bartlett v NSW Police Service, Maidment J 27/10/1998 NSWIRComm 585
Commissioner of Police v Constable Glen Rosevear, Federal Court, Neave, Beaumont and Von Doussa JJ 28/8/1991 No. ACT G80 of 1990 Fed No 517 Police [1990] 31 FCR 166
Cook v Commissioner of Police [960129] IR Court of Aust. Farrell JR 4/04/1996 Decision no 129/96
Fraser & Anor v Transport Accident Commission, Federal Court, Murphy JR [1997] 727 FCA
Hartley v O,Loughlin & Anor, Supreme Court of Victoria, Teague J [1999] VSC 138
Henry v Ryan, Supreme Court of Tas, Burbury CJ, LCA 49/1963
Hollingsworth v Commissioner of Police, NSW Industrial Relations Commission in Court Session, Wright J, President, Hungerford J, Peterson J, [1999] NSWIRComm [21 May 1999]
Hussein v Westpac Banking Corporation, Industrial Relations Court of Aust. Staindl JR 30/03/1995 No VI 1228 of 1994
John Fairfax & Sons v Police Tribunal, NSW Court of Appeal, Glass, Mahoney and McHugh JJA 30/07/1986 NSWL.R. 465
Konrad v Victoria Police [State of Victoria} and Another, Federal Court, Ryan, North and Finkelstein JJ, [1999] FCA 988
Lee v Fletcher, Supreme Court of Tasmania, Gibson ACJ, Crawford and Neasey JJ 1/9/67 LCA116/66
McCaul v Commissioners of Australian Federal Police, Federal Court, Spender, North and Madgwick JJ 25/11/98 FCA 1577
McKenzie and Chubb Protective Services, Tas Industrial Commission, Johnson DP, 29/10/1997 T6816 of 1997
Matterson and Anor ex parte Christine Debra Moles, Supreme Court of Tasmania, Judgment No A53/1993
McQuillan v Commissioner of Public Employment, Industrial Court of South Australia, Stanley P, McCusker and Parsons DPP 8/09/1993 51 IR at 356
Myers v Police Service of NSW, IRC of NSW, Sams DP, 27/04/1999 IRC98/4319
Nicholson v Heaven & Earth Gallery Pty Ltd, Industrial Relations Court of Aust., Wilcox CJ, 126 ALR 233
North v Television Corporation Ltd, Australian Industrial Court, Smithers, Franki and Evatt JJ, 25/06/1976 11 ALR 615
North West County Council v Dunn and Others, High Court, Barwick CJ, Menzies, Owen, Walsh and Gibbs JJ, 126 CLR
O'Rouke v Sinclair Imrie Miller, High Court, Gibbs CJ, Mason, Wilson, Deane, and Dawson JJ 28/03/1985 156 CLR 342
Owens v NSW Police Service, NSW IRC, Schmidt J 27/11/1988 NSWIR Comm. 632
Perkins v Grace Worldwide [Aust] Pty Ltd, Industrial Relations Court of Aust. Wilcox CJ, Marshall and North JJ 7/02/1997 72 IR 186
Public Service Assoc. of NSW and Another v Industrial Commission of NSW, Court of Appeal, Street CJ, Kirby P and Priestley JA, 18/04/1985, NSWL.R.627
Roach and Qantas Airways Limited, AIRC, Cartwright SDP, 13/12/2001 PR912545
Robinson v Northern Sydney Area Health Service, Industrial Relations Court of Aust. Locke JR 30/06/1997 NI 1324 of 1996
Rose and Telstra Corporation Limited, AIRC, Ross VP, 1/12/1998 Print Q9292
Saraswati v The Queen. High Court, Deane, Dawson, Toohey, Gaudron and McHugh JJ, 172 CLR
Slonim v Fellows, High Court, Gibbs CJ, Mason, Murphy, Wilson and Deane JJ, 154 CLR
Re Watson, Supreme Court of Queensland, Thomas J, 5/07/1996 QSC 115

Texts, Articles and Papers
Acts of Institutional Self Defence, Assistant Commissioner Doug Smith, Northern Territory Police Force, May 2000 [draft]
Australian Law Reporter - CCH
Characters and Cops, Ethics in Policing, Delattre, the AEI Press, Washington DC 1996
Ethics and Values Training: A Multifaceted Approach, Willingham and Tucker, The Police Chief, November 1988, Vol.55 No 11
Police Ethics, Miller, Blackler and Alexandra, Allen & Unwin
Professionalism in Policing v Corruption, paper presented to The International Society for the Reform of Criminal Law, 15th International Conference, Canberra, August 2001
The Evolution of Law Enforcement's Code Of Ethics, Freeman, Law and Order Feb 1992

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1 Exhibit R1 tab 8
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4 Transcript p. 634
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8 Exhibit R21
9 Transcript p. 187
10 Exhibit R1 tab 2 p. 5
11 Transcript p. 207
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15 Exhibit R1 tab 4 p. 8
16 Transcript p. 646
17 Transcript p. 647
18 Exhibit R3 tab 14
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20 Transcript pp. 391 and 392
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22 Transcript p. 549
23 Transcript p. 628
24 Exhibit R2 tab 2
25 Transcript p. 30
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27 Exhibit R4 p. 103
28 Exhibit R4 p. 107
29 Exhibit R4 pp. 161 to 165
30 Exhibit R4 pp. 219 and 220
31 Exhibit R3 tab 1 p. 4
32 Transcript p. 444
33 Transcript p. 456
34 Exhibit R2 tab 3
35 Transcript p. 52
36 Exhibit R2 tab 7
37 Transcript p. 460
38 Exhibit R1 tab 8
39 Exhibit R2 tab 3
40 Exhibit R3 tab 1 p. 5
41 Exhibit R2 tab 7
42 Exhibit R14 tab B p. 29
43 Exhibit R14 tab C p. 70
44 Exhibit R14 tab F p. 65
45 p. 11
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47 p. 13
48 p. 5
49 Transcript p. 473
50 Exhibit R14 tab A
51 Transcript p. 181
52 Exhibit R1 tab 4 p. 8
53 Transcript p. 361
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55 Exhibit R14 tab M p. 8
56 Exhibit R14 tab M p. 10
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61 Exhibit R2 tab 6
62 Transcript p. 482
63 Exhibit R5 tab 1
64 Exhibit R1 tab 1 p. 25
65 Transcript p. 515
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69 p. 121
70 Transcript p. 601
71 See T6816 of 1997, p. 8
72 p. 609
73 Transcript p. 687
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