Robert Whyte and Commissioner of Police [2010] NSWIRComm 84

Robert Whyte and Commissioner of Police [2010] NSWIRComm 84

The Commission found, on the balance of probabilities, that the applicant engaged in multiple sustained acts of misconduct and unsatisfactory performance, including unauthorised COPS access for personal reasons, harassment, failures in custody management, use/misuse of police resources, untruthfulness in interviews, and other breaches of the Police Force Code of Conduct and Guidelines. The disciplinary process, while not entirely procedurally perfect, was fundamentally fair and did not create irretrievable prejudice or an irredeemable flaw. The orders reducing the applicant's rank were neither 'harsh, unreasonable or unjust' nor 'beyond power', particularly when weighted against the...

Parties
Applicant: Robert Whyte; Respondent: Commissioner of Police
Jurisdiction
Australia
Judgment Date
30 June 2010
Procedural Posture
Application for Review of Disciplinary Order / Final Decision on Merits After Hearing
Outcome
Application dismissed, orders reducing applicant's increment upheld
Legal Topics
Misconduct, Procedural Fairness, Merit Review, Police Act 1990 (nsw), Public Sector Discipline, Balance of Public and Private Interests
Employment Law Police Disciplinary Law Administrative Law Misconduct Procedural Fairness Merit Review Police Act 1990 (nsw) Public Sector Discipline +1 more

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Parties

Robert Whyte

Applicant

Commissioner of Police

Respondent

Procedural Posture

Application for Review of Disciplinary Order / Final Decision on Merits After Hearing

Legal Issues

  1. 1 Whether the orders reducing the applicant's rank were 'harsh, unreasonable or unjust' or 'beyond power' under s 174 of the Police Act 1990 (NSW)
  2. 2 Whether procedural fairness was afforded to the applicant in the disciplinary process
  3. 3 Whether the applicant's conduct constituted misconduct or unsatisfactory performance within the statutory framework

Ratio Decidendi

The Commission found, on the balance of probabilities, that the applicant engaged in multiple sustained acts of misconduct and unsatisfactory performance, including unauthorised COPS access for personal reasons, harassment, failures in custody management, use/misuse of police resources, untruthfulness in interviews, and other breaches of the Police Force Code of Conduct and Guidelines. The disciplinary process, while not entirely procedurally perfect, was fundamentally fair and did not create irretrievable prejudice or an irredeemable flaw. The orders reducing the applicant's rank were neither 'harsh, unreasonable or unjust' nor 'beyond power', particularly when weighted against the...

Court Disposition

Application dismissed, orders reducing applicant's increment upheld

Orders

  • The orders made by Superintendent Paul Fehon on behalf of the Commissioner of Police on 4 February 2009 and 13 August 2009 are upheld pursuant to s 177(1)(c) of the Police Act 1990 (NSW).
  • The applications for review of the said orders are dismissed pursuant to s 177(1)(d) of the Police Act 1990 (NSW).